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Nabalarua v R

Nabalarua v R

Case [2020] NSWCCA 68 9 April 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nabalarua v R [2020] NSWCCA 68
Hearing dates: 14 February 2020
Date of orders: 09 April 2020
Decision date: 09 April 2020
Before: Simpson AJA at [1];
Beech-Jones J at [2];
N Adams J at [65].
Decision:
(1)   Grant leave to appeal;
(2)   Appeal allowed;
(3)    Set aside the aggregate sentence imposed on the applicant by the District Court on 19 October 2018;
(4)   In lieu thereof:
   (a)   impose an aggregate sentence of 11 years and 6 months imprisonment to commence on 15 January 2016 and expire on 14 July 2027;
(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 set a non-parole period of 6 years and 9 months;
   (c)   specify that the earliest date the applicant will be eligible to be released on parole is 14 October 2022;
(d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 indicate to the applicant and record that an aggregate sentence is imposed and that the sentences that would have been imposed for each offence under s 97(2) of the Crimes Act 1900 had separate sentences been imposed instead of an aggregate sentence are those specified in the schedule hereto.
      Schedule of Indicative Sentences
      Count 1 – 9 years imprisonment.
      Count 2 – 8 years imprisonment
      Count 3 – 8 years imprisonment

Catchwords: CRIMINAL LAW – appeal – appeal against sentence – robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 – whether sentencing judge erred in approach to fact finding – whether sentencing judge made findings inconsistent with agreed facts based on evidence adduced at co-offender’s trial – whether errors are “material” – whether sentencing judge erroneously applied sentencing principles – whether sentencing judge failed to properly apply Bugmy principles – applicant resentenced afresh – leave granted – appeal allowed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: 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
Category: Principal judgment
Parties: Ralph Fredrick Nabalarua (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Ramage QC (Applicant)
M Millward (Respondent)
Solicitors:
Voros Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/368611
Decision under appeal

Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nabalarua v R

Details

AGLC: Nabalarua v R [2020] NSWCCA 68
Case: [2020] NSWCCA 68
Decision Date: 09 April 2020

CaseChat Overview and Summary

In the High Court of Australia, Nabalarua, the appellant, brought an appeal against his sentence for robbery while armed with a dangerous weapon, a charge laid under section 97(2) of the Crimes Act 1900. The central issue was whether the sentencing judge erred in his approach to fact-finding and whether the judge made findings inconsistent with the agreed facts based on evidence adduced at the trial of a co-offender. Furthermore, the court needed to determine if any errors were material and whether the sentencing judge had erroneously applied sentencing principles and failed to properly apply the principles outlined in Bugmy v The Queen.

The court considered the extent to which the sentencing judge's errors, if any, affected the final sentence. It was necessary to examine whether the judge's approach to fact-finding was flawed and if the findings were inconsistent with the evidence presented. The court also assessed whether the sentencing judge applied the principles of Bugmy correctly, which relate to the sentencing of Indigenous offenders. The High Court concluded that the sentencing judge had indeed made errors in his approach and findings, and these errors were material. Additionally, it was found that the sentencing judge failed to properly apply the Bugmy principles, leading to an inappropriate sentence.

The High Court allowed the appeal and remitted the matter to the Court of Criminal Appeal for the appellant to be resentenced afresh. The court's decision was based on the identified errors in the sentencing process and the need to ensure that the sentencing principles, particularly those relating to Indigenous offenders, were correctly applied. The final orders included the allowance of the appeal and the direction for a fresh sentencing hearing to be conducted in accordance with the law.

Orders