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Court of Criminal Appeal 8 March 2021

Quinlan v R

[2021] NSWCCA 21

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE WHERE CROWN CONCEDED ERROR APPEAL ALLOWED APPLICANT SENTENCED AFRESH

Citation: Quinlan v R [2021] NSWCCA 21
Court: Court of Criminal Appeal, NSW
Date: 8 March 2021
Judge(s): Leeming JA, Harrison J, Adamson J

Background

The appellant pleaded guilty in the District Court to three counts of robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 25 years imprisonment. The offences involved a series of armed robberies at three Sydney hotels across November and December 2014, carried out by the appellant and two co-offenders. The robberies involved disguised offenders brandishing shortened firearms, threatening staff and patrons at gunpoint, and stealing a total of approximately $94,440.

The District Court sentenced the appellant in October 2018 to an aggregate term of 12 years imprisonment with a non-parole period of 8 years and 3 months. The sentencing judge nominated indicative sentences of 9 years and 6 months for each armed robbery count.

The appellant sought leave to appeal, arguing the sentencing judge made factual findings that went beyond the agreed facts and relied on evidence from a co-offender's separate trial, denying him procedural fairness.

  • Whether the sentencing judge erred by finding that the offenders were armed with a pump-action rifle with a sawn-off stock, a description not found in the agreed facts.
  • Whether the sentencing judge denied the appellant procedural fairness by drawing on evidence tendered only at a co-offender's trial, without the appellant's express or implicit agreement.
  • Whether the appellant had a justifiable sense of grievance arising from a disparity between his sentence and that imposed on co-offender Nabalarua by the Court of Criminal Appeal.

Decision

The Crown conceded, by analogy with the Court of Criminal Appeal's earlier decision in Nabalarua v R [2020] NSWCCA 68, that the sentencing judge erred in her approach to fact-finding. The agreed facts referred to shortened firearms described as .22 calibre rifles or a "small bush rifle." The sentencing judge's reference to a "pump action rifle with a sawn-off stock" was not found in the agreed facts; that weapon had been recovered from premises and apparently sourced from evidence adduced at the trial of co-offender Ralph Quinlan.

On the procedural fairness ground, the Court confirmed the position established in Nabalarua v R: absent an express or implicit agreement that material from a co-offender's trial could supplement or contradict the agreed facts, the sentencing judge could not draw on that material. Doing so without giving the appellant an opportunity to address it constituted a denial of procedural fairness.

The Court accepted that co-offender Nabalarua's sentences, which had been reduced on appeal, may have been somewhat lower than they might otherwise have been. Nonetheless, the Court declined to treat this as a reason to depart from similar treatment for the appellant in re-sentencing.

In re-sentencing the appellant, the Court took into account evidence of his improved prospects since the original sentence was imposed, including continued family support, a stable relationship, and sustained freedom from the drug addictions that underpinned his offending.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Aggregate sentence of 12 years imprisonment set aside.
  • Aggregate sentence of 11 years and 6 months imprisonment imposed, commencing 15 December 2014 and expiring 14 June 2026, with a non-parole period of 6 years and 9 months expiring 14 September 2021.
  • Indicative sentences recorded: Count 1 (East Hills Hotel): 8 years 6 months; Count 2 (Napoleon Inn): 8 years; Count 3 (PJ's Irish Pub): 8 years 6 months.
  • Note recorded under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) that the offences are ones to which that statute applies.

Key Takeaways

  • A sentencing judge is bound by agreed facts and cannot supplement or contradict them by drawing on evidence adduced at a co-offender's separate trial, unless there is an express or implicit agreement permitting that course.
  • Procedural fairness requires that, if a sentencing judge intends to rely on material beyond the agreed facts, that material must be identified and the offender given a reasonable opportunity to address it.
  • The Court of Criminal Appeal confirmed the approach in Nabalarua v R applies equally to co-offenders sentenced on the same agreed factual basis, producing consistent treatment across related appeals.
  • Disparity between a co-offender's sentence (itself reduced on appeal) and the appellant's sentence can ground a sense of grievance, though the court treated it as a persuasive rather than determinative consideration.
  • In re-sentencing following a successful appeal, post-sentence evidence of rehabilitation, stable personal circumstances, and sustained abstinence from substance use are legitimate factors in assessing prospects of reoffending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Nabalarua v R [2020] NSWCCA 68