Nabalarua v R

Case •

[2020] NSWCCA 68

•

09 April 2020

No judgment structure available for this case.

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 or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
19 October 2018
Before:
Syme DCJ
File Number(s):
2014/368611

Judgment

  1. SIMPSON AJA: I agree with Beech-Jones J.

  2. BEECH-JONES J: The applicant, Ralph Nabalarua, seeks leave to appeal from an aggregate sentence imposed by her Honour Judge Syme in the District Court on 19 October 2018 for three offences of robbery while armed with a dangerous weapon, namely a firearm, contrary to s 97(2) of the Crimes Act 1900. At the time of sentencing, another offence under s 97(2) and an offence of being carried in a conveyance without the consent of the owner under s 154A(1)(b) were included on a form filed by the Crown Prosecutor pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Procedure Act”) (ie, a “Form 1”) that was associated with the one of the armed robbery offences. A further offence under s 154A(1)(b) associated with another armed robbery offence, was also included on a Form 1.

  3. The maximum penalty for an offence under s 97(2) is 25 years imprisonment. There is no standard non-parole period. The maximum penalty for an offence under s 154A of the Crimes Act is 5 years imprisonment (Crimes Act, s 117).

  4. Her Honour sentenced the applicant to an aggregate term of imprisonment of 13 years with a non-parole period of 8 years. The sentence was fixed to commence on 15 January 2016. The applicant is first eligible for release on parole on 14 January 2024 and the balance of the term expires on 14 January 2029. As required by s 53A(2)(b) of the Sentencing Procedure Act, her Honour specified an indicative sentence for each offence. For the armed robbery offence that was accompanied on a Form 1 by another armed robbery offence and an offence under s 154A(1)(b), her Honour specified an indicative sentence of 10 years imprisonment with a non-parole period of 6 years and 9 months. For each of the other armed robbery offences her Honour specified an indicative sentence of 9 years with a non-parole period of 6 years. (As there is no standard non‑parole for offences under s 97(2), her Honour was not required to specify a non‑parole period for each indicative sentence: Sentencing Procedure Act, s 54B(4)).

  5. The applicant contends that the sentencing judge erred in various respects, one of which is that, in effect, her Honour made findings of fact beyond an agreed statement of facts by reference to evidence that was adduced at the trial of a co‑offender. For the reasons that follow I would uphold that contention but dismiss the balance of his complaints.

Agreed Facts

  1. In the circumstances I will describe, a statement of agreed facts dated 13 March 2017 was tendered by consent before the sentencing judge. The following summary is the salient details of that statement. The statement also refers to the involvement of two older relatives of the applicant, namely, Ralph Quinlan and Kalavetti Quinlan. In a number of respects the statement was not clear and made the sentencing judge’s task more difficult.

First Count – East Hills Hotel

  1. Count 1 was an armed robbery at the East Hills Hotel at around 11.00am on 24 November 2014. The agreed facts record that three males travelled in a stolen vehicle to the hotel but the Crown “was unable to say which of the three males, including the offender was the driver”. It records that the occupants of the front passenger and rear passenger seat left the vehicle wearing balaclavas, gloves and long sleeved hooded tops and entered the hotel from the rear. It notes that “[b]oth the offenders who entered the hotel were armed with shortened firearms” and the third offender remained in the vehicle. One of the offenders approached a witness, pointed a “sawn off .22 calibre rifle” at him and told him to get down. Another witness was made to lie on the ground.

  2. One of the offenders approached the manager and forced him to open two safes at gun point. At one point, this offender stated “hurry up or I will fucken shoot you in the head” and “[d]o you want to see your family again, cause I will put one right between your eyes”. The manager described the gun that was pointed at him as “heavily rusted and ... a muzzle loading rifle possibly a .22 calibre”. The agreed facts referred to it as a “small bush rifle”.

  3. The three offenders left in the stolen vehicle having netted $29,571.90 from the robbery. The manager followed them in his car to an apartment block. He called the police but the offenders absconded. The conveyance of the applicant in the stolen vehicle was the Form 1 offence associated with count 1.

Form 1 Robbery – Hurlstone Park Hotel

  1. The armed robbery offence included on the Form 1 associated with count 1 took place at the Hurlstone Park Hotel around 11.30pm on 7 December 2014. The agreed facts record that there were two male offenders including the applicant. They record that the “first offender” was wearing a dark coloured jumper and a black balaclava. He was described as “holding a rifle that was about 40cm long, looked old and had a dark coloured barrel”. The agreed facts refer to a “second offender” who was also wearing a black balaclava, dark coloured jumper, about 175cm and “skinny”. The agreed facts do not expressly assert that the second offender was armed.

  2. After both offenders entered the hotel, the first offender threated a staff member with a rifle including pushing the end of the rifle against her back and stating “you want to die over money love”. The staff member took him to the manager. The agreed facts record the manager being confronted by an “offender” who pointed a gun at him. Considered in context this appears to be a reference to the first offender. This offender demanded the manager fill a bag with cash, open a small safe and empty the contents of a “small cash box”. The manager indicated that there was a time delay on the small safe opening even after the entry code was entered. At this point the second offender directed him to open and empty a till. The second offender filled a bag with cash from the till. The two offenders absconded and the manager triggered an alarm. The robbery netted $5,678.55.

Count 2 – Napolean’s Hotel, Riverwood

  1. The second count was an armed robbery of the Napolean’s Hotel at Riverwood around 11.45pm on 11 December 2014. The agreed facts record that three offenders drove to the hotel and two of them entered the hotel. The agreed facts again state that “[t]he Crown is unable to say which of the three males, including the offender was the driver”. The two offenders who entered were wearing balaclavas, hooded long sleeve jumpers and “[b]oth were armed with shortened firearms”. One of the offenders confronted a staff member who called in the manager. The manager and staff were directed to empty the safe of the hotel. One of the offenders stated, inter alia, “I want all the cash. I’ll shoot you in the leg if I don’t get more”. Staff members then opened the safe and placed its cash contents inside a green duffle bag. The offenders then directed staff to open an ATM and poker machines. The agreed facts refer to one of the offenders “holding a short gun and had the security guard and two patrons lying on the ground”. After the cash was removed, the staff was instructed to lie face first on the ground. The offenders then absconded. The robbery netted $24,117.90.

Count 3 - PJ Gallagher’s Irish Pub, Enfield

  1. The third count was an armed robbery of the PJ Gallagher’s Irish Pub in Enfield on 15 December 2014. By this time the police were conducting surveillance of the applicant, Kalavetti Quinlan and Ralph Quinlan. At about 10.00pm on 15 December 2014 police observed a Mitsubishi Outlander vehicle (the “Outlander”) leave the applicant’s residence in Punchbowl carrying three people. The Outlander travelled to Liverpool and one of the occupants left the vehicle and entered a Toyota Corolla vehicle that had been stolen on 8 December 2014 (the “Corolla”). The other two occupants of the Outlander entered the Corolla and all three travelled to Enfield. The agreed facts record that two of the occupants entered the pub and one remained in the vehicle. The two that did so were said to be “each armed with shortened firearms”, which they pointed at the security guard and manager. Again, the agreed facts recorded that “[t]he Crown is unable to say which of the three offenders including this offender remained in the vehicle”.

  2. The offenders who entered the pub demanded that the safe, the ATM and the bar tills be emptied. At one point one of the offenders said to the manager, “[i]f you don’t’ hurry up I’m going to put a bullet in your leg”. As they left one of the offenders pointed a gun in his face and told him “don’t look at the number plates”. The armed robbery netted $40,750.00.

  3. The three offenders left the scene in the stolen Corolla. At Portland Street, Enfield, two of the offenders left that vehicle and drove off in the Outlander. The other offender drove off in the Corolla and abandoned the vehicle. The Outlander drove to Duke Street, Campsie and the two offenders alighted. Kalavetti Quinlan reentered the vehicle but it was stopped by police. Police then entered premises in Duke Street and arrested the applicant and Ralph Quinlan. A search warrant was executed at the premises which yielded, inter alia, $38,000 in cash, balaclavas, .22 calibre ammunition, a .22 calibre sawn off rifle and “a pump action .22 calibre rifle with black tape on the handle” which was loaded with six rounds. Upon his arrest the applicant declined to be interviewed.

  4. The conveyance of the applicant in the stolen Corolla was the Form 1 offence associated with count 3.

The Sentencing Hearing

  1. As the manner in which the sentencing judge addressed the facts of the applicant’s offending is an important part of the application, it is necessary to outline the procedural history of the applicant’s sentencing.

  2. Following a trial before Yehia DCJ and a jury, on 23 February 2017 the applicant was found guilty of three offences being armed robbery under s 97(2) of the Crimes Act, attempted armed robbery and an offence under s 154A(1)(b). These offences arose out of an attempted armed robbery of a Bank branch on 31 October 2014 and then a robbery of a golf club on the same day. On 17 November 2017, Yehia DCJ sentenced the applicant to an aggregate sentence of 8 years and 6 months with a non-parole period of 4 years and 6 months commencing on 15 January 2015 and expiring on 14 July 2019.

  3. In the meantime, on 13 March 2017 the applicant was arraigned before the sentencing judge on an amended indictment that contained the three counts noted above. He pleaded guilty to all three counts. At the same time, Kalavetti Quinlan and Ralph Quinlan were arraigned. Kalavetti Quinlan pleaded guilty and Ralph Quinlan pleaded not guilty. The applicant and the Crown signed the agreed statement of facts in respect of the applicant on that day. The sentencing of the applicant and Kalavetti Quinlan was adjourned and the trial of Ralph Quinlan proceeded before the sentencing judge. Ralph Quinlan was found guilty on some counts and acquitted on others. The sentence hearing of all three commenced on 2 March 2018. On that day the agreed statement of facts concerning the applicant was tendered, as was an agreed statement in respect of Kalavetti Quinlan.

  4. At one point during the sentence hearing the sentencing judge inquired of counsel for Ralph Quinlan whether there was “any issue with respect to facts”. Counsel for the applicant interpolated that his client “seeks to rely upon the agreed facts”. During his submissions, counsel for the applicant referred to the contents of an affidavit sworn by the applicant’s mother as well as evidence she gave during the trial before Yehia DCJ. He also referred to evidence given by the applicant in the trial of Ralph Quinlan in which he referred to the effect of his father’s death.

  5. In what appears to be the genesis of the problem identified by the applicant’s third and fourth grounds of the application, the Crown Prosecutor addressed the facts of the offending in a manner that did not seek to differentiate between the evidence adduced at the trial of Ralph Quinlan and the agreed facts concerning each of Kalavetti Quinlan and the applicant. Hence, in relation to the robbery at Hurlstone Park the Crown Prosecutor submitted:

“But, again, there were two firearms. The same two firearms were used in all four robberies, and that was the evidence of the ballistics expert in the trial, but nonetheless the Crown says that offence again would fall between the mid to top range …”

The Sentencing Judgment

  1. The manner in which the sentencing judge addressed the facts of the offences is the subject of grounds 3 and 4 of the application which are addressed below. It suffices at this point to state that the sentencing judge described the offences as “brazen, [and] aggressively performed”, they involved “customers [being] threatened with violence, with being shot and were required to remain lying on the floor” and were the subject of “considerable planning”. Having regard to the aggressive nature of the robbery, the threats to staff, the planning involved, the use of motor vehicles and the amount of money stolen, the sentencing judge found all three counts to be “well above midrange seriousness”.

  2. Otherwise, five points should be noted about the sentencing judgment so far as the applicant is concerned.

  3. First, her Honour allowed a discount of 10% on account of the applicant’s plea of guilty. No issue is taken with this aspect of the sentencing judgment.

  4. Second, there was a great deal of material tendered before the sentencing judge concerning the applicant’s subjective case. The sentencing judge also referred to the findings of Yehia DCJ concerning the applicant’s personal circumstances. As at the date he was sentenced, the applicant was almost 26 years old. His father was Fijian and his mother is indigenous. Soon after his birth his parents separated. His father was imprisoned in 1994. His mother formed a new relationship, however the applicant’s stepfather was physically and verbally abusive towards him and his mother. Yehia DCJ described the applicant has having been “exposed to a household of excessive alcohol use, physical and psychological abuse during his childhood”. In kindergarten his grandmother assumed responsibility for his care. Although the applicant moved between many schools, he was able to complete year 12. He obtained some work after completing school but he left employment to care for his mother who suffered a stroke in 2012. The death of his father in Fiji in 2014 was found to have had a profound effect on him. According to Yehia DCJ, when the applicant returned “[h]e drifted into a pattern of drug use and criminal activity” until he was incarcerated. The sentencing judge made a finding to the same effect.

  5. Third, her Honour addressed the relevance of the applicant’s background of social deprivation in accordance with the principles stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; (“Bugmy”). Those principles include that the effect of profound deprivation does not diminish over time and are to be given full weight in the determination of the appropriate sentence in every case (Bugmy at [42] to [44]). One of those effects is that a background of that kind may compromise the person’s “capacity to mature and to learn from experience” (Bugmy at [43]). Her Honour found that this was apposite to the applicant, especially given the lack of pro‑social support he received when he was grieving the loss of his father.

  6. In a passage that is the subject of complaint by ground 2, her Honour also stated:

“In addition to [Bugmy] issues, I also consider Johan v R [2015] NSWCCA 58. It is suggested in that case that the offender’s deprived background be taken into account as a subjective circumstance, thus suggesting that it should not affect the consideration of the head sentence to be imposed. Simpson J said in particular the guideline promulgated was not designed to take into account a history of deprivation or disadvantage of the kind recognised in [R v Fernando (1992) 76 A Crim R 58; “Fernando”] and Bugmy. Subjective circumstances, once proven before a court, will not affect an assessment of the objective seriousness of the offence but can, of course, ultimately affect a sentence that is imposed.” (emphasis added)

  1. Fourth, the sentencing judge noted that, until the commission of the offences for which he was sentenced by Yehia DCJ, the applicant had a “very limited criminal record and his prospects seem to be very good”. In substance that record was three offences of driving whilst disqualified that were committed between 2011 and 2014. Her Honour then stated:

“When sentencing him for the previous matter, [Yehia DCJ] allowed leniency due to his lack of prior offending and considered that the offence for which she was sentencing him was committed within the same time frame as the current offences. That would allow him some leniency with respect to issues of accumulation on that particular sentence and I will take that into account.” (emphasis added)

  1. The emphasised passage in the above is the subject of complaint by ground 2 of the application. It suffices to state that this passage reveals that, insofar as the sentencing judge referred to the offences being committed in the “same time frame” as the offences dealt with by Yehia DCJ, then her Honour was making allowance for totality.

  2. Fifth, having regard to the applicant’s youth, his lack of prior offending before October 2014, the effect of the accumulation between the two aggregate sentences and his “reasonable prospects of rehabilitation”, her Honour made a finding that “special circumstances” existed sufficient to warrant a variation in the ratio of the non-parole period to the total sentence below three quarters (Sentencing Procedure Act, s 44(2)).

Grounds 3 and 4: Fact Finding and Denial of Procedural Fairness.

  1. Ground 1 of the application contends that the sentencing exercise miscarried. It was not elaborated upon in submissions and adds nothing to the balance of the grounds. Ground 3 of the application contends that the sentencing judge “erred in the process of fact finding which impacted on her assessment of the objective criminality of the offences” and ground 4 contends that the applicant was denied procedural fairness. They can be dealt with together.

  2. The first five particulars of ground 3 refer to differences between the findings made by her Honour in the sentencing judgment and the contents of the agreed facts so far as the relevant firearms involved in the robberies was concerned.

  3. Thus, in relation to count 1 being the robbery of the East Hills Hotel the sentencing judge found that “[t]wo offenders entered the hotel armed with firearms ... [o]ne with a sawn-off .22 calibre rifle, the other with a pump action rifle with a sawn-off stock”. However, the agreed facts only referred to the offenders carrying two sawn-off shotguns, one witness referring to one rifle as .22 calibre and otherwise describing one of the rifles as a “small bush rifle”. Nothing in the agreed facts referred to either rifle used in the robbery as “pump action”, although such a rifle was found in a search of the premises in Duke Street on 15 December 2014. In relation to the robberies the subject of counts 2 and 3, the sentencing judge found that the two offenders who entered the hotels were carrying the same weapons as in count 1. While the agreed facts referred to both offenders carrying shortened firearms, nothing in the agreed facts referred to any of the riles as being “pump action”.

  4. In relation to the robbery of the Hurlstone Park Hotel, the subject of the Form 1, the sentencing judge referred to the two offenders entering the “hotel each armed with a rifle as described in the previous event”. However, the agreed facts did not refer to both offenders as armed, much less that each of them had shortened firearms, one of which was a pump action rifle with a sawn-off stock.

  5. Further, in the sentencing judgment her Honour noted that “[a]fter the final robbery the firearms were found to be loaded with ammunition stored in the bag they were carried in”. Later, her Honour stated that “[i]mmediately after the last robbery one of the rifles was found to be loaded and other ammunition was located in the bag”, the “firearms were found to be in working order” and the “same weapons I find were used for each robbery”. As noted, the agreed facts referred to the search yielding one firearm loaded with ammunition which was pump action. However, it said nothing about whether the other firearms found were loaded and nothing about whether they were in working order.

  6. A number of related principles are relevant to the assessment of these grounds. The first is that a sentencing judge is not bound to accept and act upon the parties’ agreement as to the factual basis upon which an offender is to be sentenced (Chow v Director of Public Prosecutions (1982) 28 NSWLR 593 at 606; “Chow”; R v Uzabeaga [2000] NSWCCA 381 at [34]; “Uzabeaga”). The second is that a sentencing judge is not free to make findings of fact inconsistent with the statement of agreed facts without warning parties of their intention to do so (Uzabeaga at [35]). The third is that, if the sentencing judge does seek to make a finding of fact that is either at variance with or an extension of the agreed facts, then like all other findings of fact it must (at least) be “open” on the material before the sentencing judge (R v O’Donoghue (1988) 34 A Crim R 397; “O’Donoghue; cf Hordern v R [2019] NSWCCA 138 at [20]).

  7. The starting point is to consider whether there was any factual basis for the sentencing judge’s findings. In its submissions in this Court, the Crown contended that the reference to finding a pump action rifle during the execution of the search warrant on 14 December 2014 was a sufficient evidentiary basis for a finding that it was used in all four robberies. This submission was made even though the basis for the submission made to the sentencing judge was the ballistics evidence adduced at the trial of Ralph Quinlan and not the agreed facts. Even so, I do not agree that the sentencing judge’s finding was open based on that part of the agreed facts which referred to the search warrant, given the description of the firearms used in the robberies elsewhere in the agreed facts and the period of time over which the four robberies were committed.

  8. Otherwise, the Crown sought to justify the findings of the sentencing judge by reference to the evidence adduced at the trial of Ralph Quinlan, specifically, the ballistics expert. The Crown contended that the applicant was on notice of the potential for such findings given the Crown Prosecutor’s submission noted in [21] above, that the sentencing judge was dealing with the sentencing of all three offenders after Ralph Quinlan’s trial and that reliance was placed by the applicant’s counsel on evidence that was led at Ralph Quinlan’s trial concerning the applicant’s subjective circumstances (see [20]). However, even though all three matters were being dealt with together, they were nevertheless separate matters. Unless it was otherwise expressly or implicitly agreed or ordered, the evidence adduced during the trial of Ralph Quinlan was not material that was before her Honour in sentencing the applicant. The applicant was not a party to Ralph Quinlan’s trial and was not represented during the trial. It could not be assumed that either he or his counsel had access to all the material that was adduced at the trial. The material relied on by the applicant’s counsel concerning his subjective circumstances that was addressed at Ralph Quinlan’s trial was accepted by all as material that could be relied on. Counsel for the applicant specifically identified that material and both the Crown and the sentencing judge can be taken to have been aware of it given their involvement in Ralph Quinlan’s trial.

  9. So far as the facts of the offending are concerned, counsel for the applicant made it clear that he was relying on the agreed facts. There was no express or implicit agreement or order that the material adduced during the trial of Ralph Quinlan concerning the circumstances of the offences was available to be used to supplement, much less contradict, the agreed facts in the applicant’s case. If there had been, then procedural fairness would have required that the material relied on be identified and counsel for the applicant be given a reasonable opportunity to address it (Chow; Uzabeaga; Purdie v R [2019] NSWCCA 22 at [52] to [54] per Price J).

  10. In its written submissions the Crown contended that, if the Court were to conclude that the sentencing judge erred in not explicitly limiting the finding that the guns used in the robberies were in working order to those used by Ralph Quinlan, then the ground should still be dismissed because it had not been demonstrated that the error had the capacity to affect the exercise of the sentencing discretion in the sense discussed by Basten JA in Newman (a pseudonym) v R [2019] NSWCCA 157 (“Newman”). It follows from the above that the relevant error was not confined to the finding that both guns were in working order but also to the finding that both guns contained ammunition and one was a pump action rifle. In any event, in Newman, Basten JA (with whom Hamill and Lonergan JJ agreed) concluded that an error was “material”, in the sense of invalidating the exercise of the discretion, if it had the “capacity to influence the sentence” as opposed to demonstrating that it had an “actual effect on the sentence imposed” (Newman at [11]; citing Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; “Kentwell”). In this case, I am doubtful that the differences between her Honour’s findings about the rifles used on the robberies in fact affected the sentence that was imposed. Equally, and critically, I am satisfied that they had the capacity to affect the sentence imposed. A finding that sawn-off shotguns, one of which was pump action, that were in working order and loaded with ammunition were used in a series of robberies is capable of causing the robberies to be characterised more severely than a simple finding that sawn-off shotguns were used where nothing was known about whether they worked and were loaded. That conclusion is sufficient to make the errors relevantly “material” such that they are not “warranted in law” (Kentwell at [42]).

  11. It follows that I consider that grounds 3 and 4 should be upheld. However, two other particulars of ground 3 should be mentioned. First, in the sentencing judge’s description of the seriousness of the offences her Honour found that there was “further evidence of planning [for the offences] … in the sourcing of firearms for use in the robberies”. The applicant contended that the agreed facts did not include any assertion that he was involved in sourcing the firearms for use in the robberies. That is correct but irrelevant as her Honour did not find that he was so involved. Instead, in making findings about the extent of planning involved in the robberies, her Honour was describing the overall criminal endeavor that was encompassed by the joint criminal enterprise to which the applicant was a party. As part of that process it was appropriate and indeed necessary to make findings about the level of planning involved and the agreed facts overwhelmingly supported her Honour’s findings.

  12. Second, in addressing the objective seriousness of the offences, her Honour observed that the “use of long rifles modified for ease of carriage place these dangerous weapons at a high level of objective seriousness”. The applicant contended that it was “not apparent how or why the sentencing judge reached [that] view” because .22 calibre rifles are apparently “less lethal than most handguns-pistols/revolvers”. Whether that is so is beside the point. The shortening of the barrel of shot guns allows them to be carried more easily for their use in a robbery. Arguably, the shortening of the barrel has the potential to cause damage over a wider arc than a rifle with a longer barrel. Her Honour was entitled to have regard to the shortening of the barrels as a matter affecting the objective seriousness of the offending.

  13. I would uphold grounds 3 and 4.

Ground 2: Erroneous Application of Sentencing Principles

  1. Ground 2 contends that the sentencing judge erred in her application of sentencing principles.

  2. This ground concerns the extract from the sentencing judgment set out at [27]. The applicant contends that the sentencing judge wrongly attributed to this Court’s decision in Johan v R [2015] NSWCCA 58 (“Johan”) the proposition that an offender’s deprived background should be taken into account as a subjective circumstance, but only as a matter affecting the non‑parole period and not the head sentence.

  3. The extract from the sentencing judgment set out at [27] was part of the discussion by the sentencing judge of the relevance of the principles stated in Bugmy to the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (“Henry”), which concerned sentences imposed for robbery offences. Generally, Henry had little relevance, if any, to the applicant’s case given the vastly worse circumstances of his offending to the usual “category of case” addressed in Henry (Henry at [162]). However, that can be put aside. In Johan at [21], Simpson J observed that “the guideline promulgated [in Henry] was not designed to take into account a history of deprivation and/or disadvantage of the kind recognised in Fernando, Bugmy and [Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38] - and present, to an extreme degree, in this [case]” such that “[a]ny recognition of those circumstances must come into effect after consideration of the guideline [sentence] of 4-5 years”. Although her Honour was in dissent on the outcome in Johan, it does not appear that the majority judges (Leeming JA and Schmidt J) disagreed with that proposition.

  4. Consistent with this, the Crown submitted that the emphasised sentence in the extract set out at [27] was an infelicitous attempt by the sentencing judge to state the principle enunciated by Simpson J in Johan. With respect to both the sentencing judge and the Crown, I have difficulty in interpreting the emphasised passage in that way. However, in the end result, even if the sentence is read according to its terms and accepting that is clearly wrong, I am positively satisfied that it is not a principle that the sentenced judge “act[ed]” upon (Kentwell at [42]). At the end of the passage the sentencing judge stated the correct principle, namely, that subjective sentences affect “a sentence” that is imposed; ie, both the head sentence and the non-parole period. Further, the balance of the judgment addresses the applicant’s subjective circumstances, including those referable to Bugmy, in some detail. Nothing in those passages suggests that her Honour considered that material was only relevant to the length of the non-parole period.

  5. I would dismiss ground 2 of the appeal.

Ground 7: Bugmy and Moral Culpability

  1. Ground 7 contends that the sentencing judge “failed to properly apply the principles applicable to the [a]pplicant’s deprived background”. The written submissions in support of this ground accept that the sentencing judge correctly stated the principles in Bugmy and Fernando, but contend that they were not properly applied. In particular it is contended that their application should have resulted “in a finding that the [a]pplicant’s moral culpability was lower than someone not possessing that background”.

  2. The short answer to this complaint is that the findings made by her Honour did amount to such a finding. In discussing Bugmy, her Honour noted that the effect of profound deprivation, including being raised in an environment surrounded by alcohol and abuse, “may mitigate the sentence because [the offender’s] moral culpability is likely to be less”. As noted, in the applicant’s case the sentencing judge found that his “capacity to mature and learn from experience” was compromised. In relation to the applicant and his co‑offenders, her Honour found:

“The considerations raised in Bugmy’s case will be taken into account for all three offenders. Each offender in their own way is suffering from the consequences of being brought up in a dysfunctional and violent background which has resulted in their offending behavior being for, for them, effectively unavoidable.” (emphasis added)

  1. Given that the sentencing judge identified the “considerations raised in Bugmy” as including a reduced moral culpability, a finding that the offending was “effectively unavoidable” amounts to a conclusion that the offender’s moral culpability for the offence was reduced.

  2. I would reject ground 7.

Ground 5: Prior Good Character

  1. Ground 5 contends that the sentencing judge erred in limiting the use or benefit that could be made of the applicant’s prior good character. The applicant contended that in the passage set out in [27], her Honour confined the relevance of the applicant’s good character so that it was only considered in determining the extent of the accumulation between the sentence imposed by her Honour and the sentence imposed by Yehia DCJ. I do not accept that contention. There are a number of other references to the applicant’s previous good character throughout the sentencing judgment. For example, her Honour referred to the fact that “when he was a young person [the applicant] was able to focus on his education … [and] … was …seen as a role model”. As noted above, in making a finding of special circumstances her Honour expressly referred to the applicant’s “lack of prior offending”.

  2. I would reject ground 5.

Ground 6: Applicant’s Youth

  1. Ground 6 contends that the sentencing judge “erred in limiting the relevance of the [a]pplicant’s youthfulness to the issue of special circumstances”. The submissions in support of this ground note that the applicant was 21 years old when the offences were committed. They contend that the sentencing judge referred to his youth in making a finding of special circumstances and discussing Henry but otherwise submitted that the sentencing judge failed to refer to various authorities that discuss the reduced maturity and capacity for impulse control of youthful offenders (see for example R v Elliot; R v Blessington (2006) 68 NSWLR 1; [2006] NSWCCA 305 at [127]; BP v R [2010] NSWCCA 159; “BP”).

  2. This ground has no substance. Generally, the principles applicable to youthful offenders have little or no application to offenders in their twenties, although a lack of maturity and impulse control may still be operative at those ages (see KT v R [2008] NSWCCA 51 at [22] to [26] per McClellan CJ at CL; Johan at [91]; cf BP at [5]). In this case, no submission was made to the sentencing judge that any particular principle apposite to youth offenders was apposite to the applicant. Otherwise, the sentencing judge referred to the applicant’s relative youth a number of times in the sentencing judgment. Further, as already noted, the sentencing judge accepted that his “capacity to mature and learn from experience” was compromised.

  3. I would reject ground 6.

Ground 8: Manifest Excess

  1. Ground 8 contends that the sentences imposed were “unduly harsh and severe”. Given the conclusion that I have reached in relation to grounds 3 and 4 it is not necessary to address this ground.

Resentencing

  1. Given that error has been found it is necessary to exercise the discretion to re-sentence.

  2. An affidavit sworn by the applicant just prior to the hearing of the appeal was read on the “usual basis” (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [4]). In that affidavit, the applicant states that since being in custody he has “achieved and maintained sobriety from illicit drugs completely” and has also abstained from alcohol. He has completed a number of educational programs that address addiction and anger management as well as vocational training programs to TAFE level and programs that will allow him to mentor young offenders. For about 18 months he worked in the heavy metal engineering shop and after that in a maintenance orientated role in the gym at Macquarie Correctional Centre. He states that he regrets his actions and feels as though he has let his family down. He has otherwise suffered in that his grandmother died while he was in custody.

  3. This material is consistent with and bears out the sentencing judge’s finding that the applicant has reasonable prospects of rehabilitation (see [30]). Otherwise, I adopt the findings of the sentencing judge summarised above, including the finding of special circumstances, save that the applicant is to be sentenced on the basis of the agreed facts without the necessity to make any further findings about the offences, including the firearms involved.

  4. I also agree that an aggregate sentence should be imposed and there should be substantial overlap with the sentence imposed by Yehia DCJ on account of totality. In my view, the appropriate aggregate sentence is 11 years and 6 months with a non-parole period of 6 years and 9 months. The sentence should date from the same date as that imposed by her Honour, namely, 15 January 2016.

  1. As required by s 53A(2)(b) of the Sentencing Procedure Act, I would specify an indicative sentence for count 1 of 9 years imprisonment. For each of the other counts I would specify an indicative sentence of 8 years imprisonment.

  2. Accordingly, the orders I propose are:

(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) Act1999 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

  1. N Adams J: I agree with Beech-Jones J.

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Decision last updated: 09 April 2020

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Cases Citing This Decision

8

R v Whitley [2024] NSWDC 184
R v Foster [2022] NSWDC 467
R v Weaver [2020] NSWDC 556
Cases Cited

16

Statutory Material Cited

2

Bugmy v The Queen [2013] HCA 37
Bugmy v The Queen [2013] HCA 37
Bugmy v The Queen [2013] HCA 37