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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: Court of Criminal Appeal
Date: 9 April 2020
Judge(s): Simpson AJA at [1]; Beech-Jones J at [2]; N Adams J at [65]

Background

The appellant pleaded guilty in the District Court to three counts of robbery while armed with a dangerous weapon (a firearm), contrary to s 97(2) of the Crimes Act 1900. Each robbery occurred at licensed premises in Sydney between November and December 2014. The offences formed part of a series of armed robberies involving the appellant and two relatives.

When the appellant entered his pleas on 13 March 2017, he and the Crown signed a statement of agreed facts. His co-accused, Ralph Quinlan, did not plead guilty and was tried separately before the same judge who later sentenced the appellant. The sentencing hearing proceeded after Ralph Quinlan's trial concluded.

The District Court imposed an aggregate sentence of 13 years with a non-parole period of 8 years. The appellant sought leave to appeal, contending that the sentencing judge made factual findings about the firearms used that went beyond the agreed facts, relying instead on evidence from the co-offender's trial, and that several other sentencing errors had occurred.

Legal Issues

  • Whether the sentencing judge erred by making findings of fact about the firearms used in the robberies that went beyond the agreed statement of facts, by drawing on evidence from the co-offender's trial
  • Whether the applicant was denied procedural fairness in that process
  • Whether those errors were material, in the sense of having the capacity to influence the sentence imposed
  • Whether the sentencing judge misapplied the principles in Bugmy v The Queen (2013) 249 CLR 571 concerning the relevance of a deprived background to sentencing
  • Whether the sentencing judge improperly limited the relevance of the applicant's prior good character to the question of accumulation
  • Whether the sentencing judge failed to adequately consider the applicant's youth as a sentencing factor

Decision

Grounds 3 and 4: Fact-finding beyond agreed facts and procedural fairness

The sentencing judge made findings that the two offenders in each robbery each carried shortened firearms, one of which was a pump-action rifle with a sawn-off stock, that both firearms were loaded and in working order, and that the same weapons were used across all four robberies. None of those findings were supported by the agreed facts (at [33]-[35]). The Crown sought to justify them by reference to ballistics evidence from Ralph Quinlan's trial, but the Court held that the evidence from that trial was not material properly before the sentencing judge in the applicant's separate proceeding. The applicant had not been represented at the trial, had not agreed that such material could supplement the agreed facts, and had made clear through counsel that he was relying on the agreed statement (at [38]-[39]).

The Court confirmed that a sentencing judge is not bound by agreed facts but cannot depart from them without warning the parties, and any departure must be open on the material actually before the judge (at [36]). Those conditions were not met. The Court was satisfied the errors had the capacity to influence the sentence, characterising firearms as loaded, working, and pump-action makes the offending appear more serious than a finding simply that shortened firearms were used. That capacity to affect the sentence made the errors material (at [40]).

Ground 2: Application of sentencing principles and the Bugmy considerations

The appellant argued that the sentencing judge, by reference to Johan v R [2015] NSWCCA 58, had wrongly confined a deprived background to relevance only for the non-parole period rather than the overall sentence. The Court accepted that one sentence in the judgment was, read literally, clearly wrong (at [47]). However, the Court was positively satisfied the sentencing judge did not act on that error: the judgment correctly stated the applicable principle at its conclusion and addressed the applicant's subjective circumstances in detail throughout, treating the Bugmy considerations as relevant to the sentence as a whole (at [47]).

Grounds 5, 6 and 7: Prior good character, youth and the Bugmy principles

Ground 7, which challenged the application of the Bugmy principles, was dismissed. The sentencing judge had found that the applicant's moral culpability was reduced and that his offending was "effectively unavoidable" given his background, a conclusion the Court of Criminal Appeal accepted as satisfying the relevant standard (at [50]-[51]). Ground 5, concerning prior good character, was also dismissed: the applicant's good character appeared in multiple places in the sentencing judgment, not only in the context of accumulation (at [53]). Ground 6, concerning youth, was dismissed on the basis that the principles applicable to youthful offenders generally have little application to offenders in their twenties, no relevant submission had been made to the sentencing judge, and the judge had nonetheless referred to the applicant's relative youth and his compromised capacity to mature on multiple occasions (at [55]-[56]).

Re-sentencing

Because material error had been established on grounds 3 and 4, the Court re-sentenced the applicant. It adopted the sentencing judge's findings on subjective matters, including the finding of special circumstances, and sentenced the applicant on the basis of the agreed facts without making additional findings about the firearms (at [61]). The Court also had regard to an affidavit placed before it on the usual basis showing the applicant had maintained sobriety, completed educational and vocational programs, and expressed genuine remorse since being in custody (at [60]). A reduced aggregate sentence of 11 years and 6 months with a non-parole period of 6 years and 9 months was substituted, commencing on the same date as the original sentence (at [62]).

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence of 13 years imposed on 19 October 2018 set aside
  • In lieu thereof, an 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 fixed; earliest parole eligibility date of 14 October 2022
  • Indicative sentences specified: Count 1, 9 years imprisonment; Count 2, 8 years imprisonment; Count 3, 8 years imprisonment

Key Takeaways

  • A sentencing judge is not bound by an agreed statement of facts but cannot make findings inconsistent with or extending beyond those facts without warning the parties and without a proper evidentiary basis in the material actually before the court (at [36]).

  • Evidence adduced at a co-offender's separate trial does not automatically become available for use in sentencing a different accused simply because the matters are heard consecutively before the same judge. An express or implicit agreement or order is required before such material can supplement or contradict agreed facts (at [38]-[39]).

  • Where erroneous factual findings about the severity of weapons used in offences have the capacity to influence how the sentencing judge characterises objective seriousness, those errors are "material" and will invalidate the sentencing exercise, applying the standard confirmed in Kentwell v The Queen (2014) 252 CLR 601 (at [40]).

  • Under the principles in Bugmy v The Queen (2013) 249 CLR 571, a finding that an offender's background of profound deprivation rendered offending "effectively unavoidable" amounts to a finding of reduced moral culpability sufficient to satisfy those principles (at [50]-[51]).

  • The principles applicable to youthful offenders generally have limited application to offenders in their twenties, though diminished maturity and impulse control may still be operative, and no error arises where a sentencing judge has nonetheless addressed the offender's relative youth and compromised capacity to mature (at [55]-[56]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

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