R v Nabalarua; R v Quinlan - [2017] NSWDC 328

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Nabalarua; R v Quinlan [2017] NSWDC 328
Hearing dates: 20 October 2017; 17 November 2017
Date of orders: 17 November 2017
Decision date: 17 November 2017
Jurisdiction: Criminal
Before: Yehia SC DCJ
Decision:
In each case the offender is sentenced to an aggregate sentence consisting of a non parole period of 4 years and 6 months with a head sentence of 8 years and 6 months

Catchwords: Childhood of deprivation and disadvantage - Application of Bugmy principles where offences involve some planning- Sentencing for offences contrary to s 97(2) of the Crimes Act.
Legislation Cited: s 97(2) Crimes Act 1900 (NSW); s 154A(1)(b) Crimes Act 1900 (NSW); s 21A Crimes (Sentencing Procedure) Act 1999 (NSW); s 3A Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
Ingrey v R [2016] NSWCCA 31
Legge v R [2007] NSWCCA 244
R v Henry (1999) 46 NSWLR 346
R v Millwood [2012] NSWCCA 2
Taysavang v R; Lee v R [2017] NSWCCA 146;
Category: Sentence
Parties: Regina (Crown)
Ralph NABALARUA (Offender)
Kareel QUINLAN (Offender)
Representation: Counsel:
A Morris (Crown)
J Gaitanis (R Nabalarua)
A Hawkins (K Quinlan)

File Number(s): 2015/14296; 2015/128965

Judgment

The offenders, Ralph Nabalarua and Kareel Quinlan stood trial at Sydney District Court in January 2017. They were arraigned on 23 January 2017 and entered pleas of not guilty to 4 counts on the indictment.
On 23 February 2017 the jury returned verdicts of guilty in respect of each accused to counts 1, 2 and 3 on the indictment and not guilty to count 4 on the indictment.
I must therefore sentence the offenders for the following offences:

An offence of attempted robbery while armed with a dangerous weapon. The offence is contrary to s 97(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 25 years imprisonment.

An offence of knowingly drive or be carried in conveyance without consent of owner. The offence is contrary to s 154A(1)(b) Crimes Act 1900 (NSW) and carries a maximum penalty of 5 years’ imprisonment.

An offence of robbery while armed with a dangerous weapon. The offence is contrary to s 97(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 25 years imprisonment.

In determining the facts upon which I sentence these men, I must have regard to the jury verdicts. I must resolve any dispute in light of the evidence adduced at trial although any such resolution by me is limited to matters collateral to the elements of each offence. I am entitled to form my own view of the facts, provided it is consistent with the jury verdicts. I am not restricted to a view of the facts most favourable to the offenders; however any aggravating factors must be established beyond reasonable doubt.

FACTS

I proceed to sentence the offenders on the following facts: on Wednesday 29 October 2014 at about 8pm, Sean Hussey parked…

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.

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Details

Case: [2017] NSWDC 328
Decision Date: 17 November 2017

CaseChat Overview and Summary

The defendants, Nabalarua and Quinlan, were convicted of offences contrary to section 97(2) of the Crimes Act. The case was heard in the Court of Criminal Appeal, where the primary focus was on sentencing. Both defendants had backgrounds marked by deprivation and disadvantage, which the court considered in the sentencing process. The legal issues before the court involved the application of the principles set out in Bugmy v R, particularly in relation to how childhood experiences of disadvantage and deprivation should be factored into the sentencing framework.

The court needed to determine the appropriate weight to give to the defendants' backgrounds in their sentencing. This involved a careful balancing act between acknowledging the mitigating effects of their disadvantaged upbringing and ensuring that the sentences were commensurate with the seriousness of the crimes committed. The court also had to consider the extent to which the offences involved some degree of planning, as this would impact the overall sentence. The court concluded that while the backgrounds of the defendants provided context, they did not fully excuse the gravity of the crimes. The Bugmy principles were applied to ensure that the sentences reflected both the offenders' backgrounds and the need to maintain public confidence in the justice system.

The court found that an aggregate sentence with a non-parole period of 4 years and 6 months, and a head sentence of 8 years and 6 months, was appropriate. This sentence took into account the defendants' backgrounds but also ensured that the punishment reflected the seriousness of the offences. The final orders of the court mandated that both Nabalarua and Quinlan serve this aggregate sentence.

Orders

Orders of the court

In each case the offender is sentenced to an aggregate sentence consisting of a non parole period of 4 years and 6 months with a head sentence of 8 years and 6 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Nabalarua; R v Quinlan [2017] NSWDC 328
Hearing dates:	20 October 2017; 17 November 2017
Date of orders:	17 November 2017
Decision date:	17 November 2017
Jurisdiction:	Criminal
Before:	Yehia SC DCJ
Decision:	In each case the offender is sentenced to an aggregate sentence consisting of a non parole period of 4 years and 6 months with a head sentence of 8 years and 6 months
Catchwords:	Childhood of deprivation and disadvantage - Application of Bugmy principles where offences involve some planning- Sentencing for offences contrary to s 97(2) of the Crimes Act.
Legislation Cited:	s 97(2) Crimes Act 1900 (NSW); s 154A(1)(b) Crimes Act 1900 (NSW); s 21A Crimes (Sentencing Procedure) Act 1999 (NSW); s 3A Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Ingrey v R [2016] NSWCCA 31 Legge v R [2007] NSWCCA 244 R v Henry (1999) 46 NSWLR 346 R v Millwood [2012] NSWCCA 2 Taysavang v R; Lee v R [2017] NSWCCA 146;
Category:	Sentence
Parties:	Regina (Crown) Ralph NABALARUA (Offender) Kareel QUINLAN (Offender)
Representation:	Counsel: A Morris (Crown) J Gaitanis (R Nabalarua) A Hawkins (K Quinlan)
File Number(s):	2015/14296; 2015/128965