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Court of Criminal Appeal 9 April 2020

Nabalarua v R

[2020] NSWCCA 68

Theft & propertyFirearms & weapons
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE OFFENDER’S TRIAL WHETHER ERRORS ARE “MATERIAL” APPLICANT RESENTENCED AFRESH

Citation: Nabalarua v R [2020] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 9 April 2020
Judges: Simpson AJA, Beech-Jones J, N Adams J

Background

The applicant was sentenced in the District Court in October 2018 for three counts of robbery while armed with a dangerous weapon (a firearm), contrary to s 97(2) of the Crimes Act 1900. Two further offences were taken into account on a Form 1. The robberies occurred across four Sydney hotels between November and December 2014, involving co-offenders identified as two older relatives of the applicant.

The sentencing judge imposed an aggregate term of 13 years imprisonment with a non-parole period of 8 years, commencing 15 January 2016. The sentencing proceeded on the basis of an agreed statement of facts, although that statement was noted to be unclear in a number of respects.

The applicant sought leave to appeal, contending the sentencing judge made several errors, including making factual findings that went beyond the agreed facts by drawing on evidence adduced at a co-offender's trial.

  • Whether the sentencing judge erred in making findings of fact inconsistent with, or beyond, the agreed statement of facts, by reference to evidence from a co-offender's separate trial
  • Whether any such errors were "material" so as to warrant intervention on appeal
  • Whether the sentencing judge erroneously applied sentencing principles generally
  • Whether the sentencing judge failed to properly apply the principles from Bugmy v The Queen (2013) 249 CLR 571, which govern how a court must consider the impact of deprivation and disadvantage on moral culpability

Decision

The Court of Criminal Appeal upheld the contention that the sentencing judge had made findings going beyond the agreed facts by drawing on evidence from the co-offender's trial. This constituted a material error that warranted intervention. The remaining grounds of appeal were dismissed.

On the Bugmy ground, the Court dismissed the contention that the sentencing judge had failed to properly apply the relevant principles. The Court accepted the sentencing judge's findings about the applicant's background and prospects, including a finding of reasonable prospects of rehabilitation. The Court noted that fresh material before it on resentencing, including evidence of the applicant's engagement in vocational and other programs in custody, was consistent with that finding.

The Court resentenced the applicant afresh, applying the agreed facts only and without making further findings about the nature of the firearms involved. An aggregate sentence of 11 years and 6 months imprisonment was imposed, with a non-parole period of 6 years and 9 months. The sentence was backdated to the original commencement date of 15 January 2016, with substantial overlap applied on totality grounds to account for a sentence imposed by another judge in related proceedings.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence imposed by the District Court on 19 October 2018 set aside
  • In lieu thereof: aggregate sentence of 11 years and 6 months imprisonment imposed, commencing 15 January 2016 and expiring 14 July 2027
  • Non-parole period of 6 years and 9 months set; earliest parole eligibility date of 14 October 2022
  • Indicative sentences recorded: Count 1 (East Hills Hotel) 9 years imprisonment; Count 2 (Napolean's Hotel, Riverwood) 8 years imprisonment; Count 3 (PJ Gallagher's Irish Pub, Enfield) 8 years imprisonment

Key Takeaways

  • A sentencing judge who makes factual findings beyond an agreed statement of facts by relying on evidence adduced at a co-offender's separate trial commits a material error that may warrant resentencing.
  • Where sentencing proceeds on agreed facts, the court is bound by those facts and cannot supplement them with findings drawn from other proceedings, even where those proceedings involved the same events.
  • The Bugmy principles require a sentencing court to take into account the effects of deprivation and social disadvantage on an offender's moral culpability; the Court of Criminal Appeal here confirmed no error in the way those principles were applied below.
  • In resentencing, the Court of Criminal Appeal took into account fresh material about the applicant's conduct and progress in custody as relevant to prospects of rehabilitation, demonstrating that such evidence can be considered at the appellate resentencing stage.
  • Totality requires that where an offender is already serving a related sentence imposed by a different judge, the aggregate sentence on resentencing should reflect substantial overlap to avoid a disproportionate overall term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 117, 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(1), 44(2A), 53A(2)(b), 54B(4)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Elliot; R v Blessington (2006) 68 NSWLR 1; [2006] NSWCCA 305
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Purdie v R [2019] NSWCCA 22
- Hordern v R [2019] NSWCCA 138
- Johan v R [2015] NSWCCA 58
- BP v R [2010] NSWCCA 159
- KT v R [2008] NSWCCA 51
- Chow v Director of Public Prosecutions (1982) 28 NSWLR 593
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Uzabeaga [2000] NSWCCA 381