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 his dark blue Holden Commodore (registration plates HUS 216) in his garage. He left the keys in the ignition whilst he removed some groceries. The door to the garage was open whilst he was inside dropping off the groceries. It was at this time the car was stolen.
Two days later, at about 10:32am on Friday, 31 October 2014, the offenders in company with two other unknown persons pulled up in the stolen Commodore directly in front of the Commonwealth Bank on Waldron Road, Chester Hill.
The car was left blocking traffic. The four offenders got out of the car. They were wearing facial disguises in the form of balaclavas and two of the four were armed with firearms, namely a shortened .22 calibre rifle and a shortened M1 carbine rifle. The other two offenders were armed with sledgehammers. One was carrying a large black bag. They were all dressed in dark full-length clothing and each of them was wearing gloves. Two of the four were wearing yellow and blue gloves.
The men entered the Commonwealth Bank and attempted to rob the bank. When they entered one of the offenders pointed a firearm at a bank staff member and forced her to open the door which leads into a restricted area of the bank where the ATM bunker was. Shortly thereafter, another staff member activated the bank’s security mechanisms including the teller security screen and following this the four offenders left the bank without taking any money.
They returned to the stolen Commodore and drove away. Much of what occurred inside the bank was captured on CCTV footage. I have viewed that footage.
The actions of the four entering the bank and attempting to rob it constitute the facts relating to count one on the indictment. The actions of the offenders in entering the stolen car after the attempted robbery and driving away from the location constitute the facts relating to count two on the indictment.
The Crown is not in a position to say which of the four was the driver of the stolen car. The Crown is not in a position to say which of the four pointed the firearm at the staff member inside the bank.
Police were immediately called and the first police arrived on the scene at the bank at around 10:40am. Following police being contacted, police radio broadcast a description of what had occurred. Constable Knott and Constable Napier were patrolling the area in an unmarked police car. Whilst they were driving on Chisholm Road, Auburn, a short distance from the bank, Constable Knott spotted a blue/green car driving on the wrong side of the road. Police attempted to catch up to the car but lost sight of it. They continued to patrol the area looking for the car.
Within 5 to 15 minutes of the attempted robbery at the Commonwealth Bank and shortly after the police lost sight of the blue/green coloured car, the four perpetrators including these two offenders drove to the Rosnay Golf Club at Auburn. The four offenders drove into the car park. Three of them left the car dressed in the same clothing and facial disguises as depicted in the CCTV footage of the Commonwealth Bank. Once again, two of the three men were armed with the same firearms used at the Commonwealth Bank and a third offender was carrying a small sledgehammer and black bag.
The three entered the club through the kitchen from the car park. Each was wearing gloves. The fourth person remained in the stolen Commodore. The Crown is not in a position to say which person of the group remained in the stolen car.
The three men who entered the Golf Club made their way to the main bar area where a staff member was threatened with a firearm, whilst another person had the small sledgehammer and black bag. One of the offenders made a demand for the money and the keys to the safe. One of the offenders poked the firearm into the staff members back. The offenders stole $450 before leaving the club and returning to the stolen car which was waiting in the car park. These are the facts relating to count three on the indictment.
Police were immediately called to the Golf Club. Police patrolled the area. They observed the blue Commodore and pursued it through a number of streets. When in Fairfield East the driver of the stolen Commodore attempted to overtake a bus and collided with an oncoming car. The Commodore continued for a short distance after that collision before it collided with the gutter. The police in the pursuing car stopped at the scene of where the first collision occurred and rendered assistance to the driver of the car the stolen Commodore had collided with.
The stolen Commodore stopped at an intersection following the collision with the gutter. The offenders ran from the car. A number of witnesses from residences in and around the area gave evidence about seeing persons running and/or finding property disturbed or damaged. Police arrived on the scene and secured the stolen Commodore and a number of items from within the car as well as pieces of the firearms stock from the shortened M1 Carbine rifle that had broken when one of the offenders from the car smashed the rifle.
A number of items were recovered including a Nike bag, another bag containing ammunition as well is two sledgehammers. One of the sledgehammers was a Hart brand. The larger of the two sledgehammers was a Trojan brand.
Police conducted a canvas and search of the residential area. A search of a disused shed located a shortened 22 calibre rifle and the remains of a shortened M1 Carbine rifle. Next to the remains of the shortened M1 Carbine was a magazine loaded with six .38 calibre bullets. The evidence of the ballistic expert is that the bullets located were not capable of being fired by either firearm. The police also located two pairs of yellow and blue grip flex brand gloves, a blacksmith brand waterproof jacket and a home-made black balaclava fashioned from the sleeve of a jumper.
DNA analysis was conducted. The DNA profile of Ralph Nabalarua was identified as the major contributor to a mixed DNA sample from the inside of one of the left handed blue and yellow grip flex gloves. His DNA was also identified as the major contributor to a mixed sample taken from the inside of one of the right-hand blue and yellow grip flex gloves. His DNA cannot be excluded as a contributor to the inside of the home-made balaclava nor can it be excluded as a contributor to a mixed DNA sample from the collar of the dark coloured Blacksmith rain jacket.
The DNA profile of Mr Quinlan was identified as the major contributor to a mixed DNA sample taken from the inside of the left hand of one of the blue and yellow grip flex gloves. His DNA could not be excluded as the major contributor to a mixed DNA profile from the inside of the right hand of one of the blue and yellow grip flex gloves.
Police investigations led to CCTV footage obtained from Big W at Macarthur Square Campbelltown depicting the offenders along with a third unidentified male purchasing the jackets and Nike tracksuit pants. Enquiries also led to information being obtained that a 4 pound Hart sledgehammer was purchased at Bunnings at the Warrawong store on the afternoon of 29 October 2014, two days before the robberies.
Enquiries with Bunnings also revealed that a Trojan brand sledgehammer was purchased on 30 October 2014, the night before the robberies. CCTV footage from the Campbelltown Bunnings store shows Ralph Nabalarua purchasing the 8 pound Trojan brand sledgehammer along with two pairs of yellow and blue grip flex gloves.
An analysis of the offenders’ mobile phones revealed movements of their phones consistent with the offenders purchasing the items from Big W and Bunnings.
On 15 January 2015 Ralph Nabalarua was arrested and charged. On 30th of April 2015 Kareel Quinlan was arrested and charged.

Objective Seriousness

In R v Henry (1999) 46 NSWLR 346, the Court of Criminal Appeal promulgated a guideline judgment, setting a range of imprisonment of between 4-5 years for an offence contrary to section 97(1) Crimes Act 1900 (NSW), an offence that carries a lesser maximum penalty, namely 20 years imprisonment.
However, sentencing is not a mathematical exercise. The guideline offered by the Court of Criminal Appeal does not prevent the proper exercise of an individual judges sentencing discretion. The guideline acts as a guide or check. In Legge v R [2007] NSWCCA 244 at [59] Spigelman CJ cautioned that a guideline is not a tramline. Exceptional circumstances need not be established before a sentence less than the guideline may be imposed.
A number of the factors referred to in the guideline judgment are now contained in the s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, Henry provides some guidance with respect to the present case. I bear in mind, in sentencing these offenders, that the maximum penalty for offences pursuant to s 97(2) is 25 years imprisonment.
The category of case which was sufficiently common for the purposes of determining a guideline comprises a number of elements including:

a young offender with no or little criminal history;

a weapon like a knife capable of killing or inflicting serious injury;

a limited degree of planning;

limited, if any actual violence but a real threat thereof;

the victim being in a vulnerable position such as a shopkeeper or taxi driver;

a small amount taken;

and a plea of guilty, the significance of which is limited by strong Crown case.

Here, Mr Quinlan cannot be described as a young offender with little or no criminal history. Mr Nambulura, on the other hand, was only 21 years old at the time of these offences. He is entitled to a degree of leniency because his criminal record is limited both with respect to the number and nature of prior offences.
I am satisfied that the firearms were not capable of killing or inflicting serious injury because the ammunition possessed by the offenders was incompatible with the firearms. I am not persuaded that I can make a finding, as urged by the Crown, that the offenders were not aware that the ammunition was incompatible and that in their minds the firearms were capable of discharge.
The sledgehammers, if used were capable of inflicting serious injury. There is no evidence, however, that they were wielded in such a way as to cause or threaten such injury.
Of course, the mere fact that the offenders presented these weapons would have placed the victims in considerable fear. The victims were not to know that the ammunition was incompatible with the firearm, or that the firearms were not capable of inflicting death or serious injury. There is no doubt in my mind that the victims in each case would have been terrified by the conduct of the offenders.
The planning was not limited. It extended to buying items that were used in the commission of the offences over a period of some 48 hours prior to the commission of the offences. There was a degree of deliberation involved in sourcing items to disguise the offenders’ appearance. I am satisfied that the degree of planning was more than just limited although I am not of the view that the offences were particularly sophisticated or well organised.
For instance, there appears to have been no plan in place in the event that the security mechanism at the bank was triggered. As it happened, once it was triggered the offenders ran out of the bank. I am satisfied that the armed robbery at the Rosnay Golf Club involved a lesser degree of planning and can best be described as opportunistic.
That offence was committed only a few minutes after the failed attempted robbery at the Commonwealth Bank. Whilst the offenders were still disguised and armed, the armed robbery at the Golf Club appears to have been an opportunistic criminal act following a failed robbery attempt at the institution that appears to have been deliberately targeted.
The use of a weapon is an element of count 1 and count 3 and I do not take it into account as an aggravating factor. The threat of violence involved in the attempted armed robbery at the Commonwealth Bank is an element of the offence and I do not take it into account as an aggravating factor. During the robbery at Rosnay Golf Club, one of the offenders poked the firearm into the staff member’s back. I have taken this threat of violence into account in assessing the objective seriousness of the offence but I am not of the view that the degree of the threat is such as to constitute a separate aggravating factor.
The Crown submits that I would have regard to the motivation of the offenders as an aggravating factor. The Crown points to the fact that the offences were committed for financial gain as a further aggravating factor pursuant to s 21A. The Crown submits that a robbery offence can encompass the taking of items other than money and that therefore where the motive is financial gain, such motive is a separate aggravating factor.
I reject that submission. Counts 1 and 3 are offences of attempted robbery and robbery. Count one involves an attempted armed robbery at the Commonwealth Bank. Clearly, the offenders were motivated by an intention to rob the bank of money. The robbery at Rosnay Golf Club involved the taking of $450. True it is there were other items at the Club that could have been taken. However, the facts of this case establish that the very item intended to be robbed or that was robbed was money. I am not of the view that it is appropriate to take into account as a separate aggravating factor the commission of the offences for financial gain.
To the extent that I am wrong about that, I would give financial gain minimal weight as a separate aggravating factor.
I am satisfied that in each of the armed robbery offences the victims were in a vulnerable position, a matter increasing the objective seriousness of the offences.
The proceeds secured as a result of the offences are not significant. A small amount was taken at the Rosnay Golf Club and no money was taken from the Commonwealth Bank.
There was no plea of guilty. The matters proceeded by way of trial. However, each offender has acknowledged his guilt following the jury verdicts. This demonstrates some remorse on their part.
The offenders are not entitled to the reduction in sentence that would have applied had they pleaded guilty nor are they to be penalised for running their trials. Unlike many cases that come before this court where an offender maintains their innocence even following guilty verdicts, these offenders have acknowledged their guilt and in those circumstances, I am satisfied that they have demonstrated some remorse and contrition.
I am satisfied that with respect to counts 1 and 3 the criminal conduct involved a degree of planning (although the robbery at Rosnay Golf Club was more opportunistic). Items used in the commission of the offences were sourced and purchased two days prior to the offences. Each offender took steps to disguise their identity and ensure that their fingerprints would not be left at the scene.
I am satisfied that some thought and deliberation went into the commission of these offences over and above the type of planning inherent in offences of this type. The degree of planning is a matter I take into account in assessing the objective seriousness of the offences. I am not persuaded that the extent of planning and organisation is such as to warrant a finding of a separate aggravating factor pursuant to section 21A.
Whilst the weapons were brandished, I am not satisfied that the firearms were capable of discharging and therefore were not capable of causing injury. The sledgehammers were capable of causing injury. However, there is no suggestion that the sledgehammers were swung or brandished in a directly threatening manner towards any of the staff members. There is no doubt that the staff at the bank would have been terrified and fearful for their safety. That is a factor that I take into account in assessing the objective seriousness of the offences but it does not serve as a separate aggravating factor pursuant to section 21A.
One of the offenders directly threatened a staff member at the Commonwealth Bank and at the Golf Club by pointing one of the firearms and or poking it at a staff member. I am unable to determine whether it was the same offender, or, indeed, who that offender was. However, I take into account these actions as part of the circumstances associated with the joint criminal enterprise to commit these offences.
I am satisfied that the offences of armed robbery and attempted armed robbery fall at the middle of the range of objective seriousness. Whilst the offence at the Commonwealth Bank is an attempted armed robbery, I am of the view that it is the more serious offence. True it is that the offenders did in fact obtain $450 from the Rosnay Golf Club, but that was an offence committed opportunistically and I am not satisfied that the Golf Club was the planned target. I am satisfied that the attempted robbery at the Commonwealth Bank involved a greater deal of planning.

With respect to count 2 I am satisfied that it falls below the middle of the range of objective seriousness. There is no evidence that it was these offenders who stole the motor vehicle. I cannot be satisfied that it was one of these offenders who drove the motor vehicle.
In assessing the appropriate penalty in each case I have taken into account, as an aggravating factor pursuant to s 21A, that the offences were committed in company.
I am unable to make any finding as to whether these offenders were armed with the firearms or the sledgehammer. I am unable to determine whether it was one of these offenders who drove the motor vehicle. I am simply unable to make those findings on the evidence. I proceed on the basis that they were all disguised and armed and acting in a joint criminal enterprise involving the attempted robbery at the Commonwealth Bank and the robbery at the Rosnay Golf Club.

Purposes of Sentencing

Section 3A of the Crimes (Sentencing Procedure) Act sets out the various purposes of sentencing:

The purposes for which a court may impose a sentence on an offender are as follows:

to ensure that the offender is adequately punished for the offence,
to prevent crime by deterring the offender and other persons from committing similar offences,
to protect the community from the offender,
to promote the rehabilitation of the offender,
to make the offender accountable for his or her actions,
to denounce the conduct of the offender,
to recognise the harm done to the victim of the crime and the community.

The penalty I impose must serve to deter these offenders and other like- minded individuals from committing serious crimes of armed robbery and attempted armed robbery. The offenders conduct must be denounced and the offenders held to account. This is also a case where weight must be given to the protection of the community in light of the serious threat of violence involved in the offenders conduct.
Although these offenders did not have extensive criminal record, having regard to the seriousness of the offences for which they are to be sentenced, I am satisfied that the penalty I impose must also reflect specific deterrence.
I turn to consider each subjective case.

Kareel Quinlan- Subjective Case

Mr Quinlan’s subjective case is set out in a number of documents tendered in the proceedings. The psychological report prepared by Dr Katie Seidler sets out the offender’s background, his psycho-social history and psychological assessment.
Mr Quinlan is a 30-year-old Aboriginal man. His childhood was marred by extreme disadvantage and deprivation unfortunately all too often seen in cases of Aboriginal offenders who come before this Court. He was exposed to family violence and substance abuse from an early age. Dr Seidler states that he was exposed to a range of serious risks known to compromise the development of a child. His family moved around during his childhood and the offender found these moves unsettling in that he was unable to make stable attachments.
He reported that the relationship between his parents was unstable, turbulent and dysfunctional. His parents separated when he was a teenager. Whilst he was aware that there was domestic violence in the home he did not witness it. His father was absent from the family home for periods of time, sometimes for years.
As the eldest child, the offender assumed responsibility for the family. His mother was involved in relationships with other men, none of which lasted very long or were meaningful for him in terms of an attachment. Many of these men were heavy abusers of alcohol as well as being frequently violent and abusive. The offender reported having to protect his mother and younger siblings from the violence inflicted by his mother’s partners.
The offender’s parents were both heavy alcohol users and he often witnessed his mother well affected by alcohol. He recalled that his mother was always manipulated by her partners and this resulted in her exposing the children to abuse and trauma. He remembers being physically abused by many of her boyfriends. The physical abuse included being beaten with fists and household objects like jug cords.
The offender’s family lived in poverty - in public housing, surviving on government benefits. He reported being brought up not to steal but was aware that his mother sometimes did steal to meet the children’s needs.
His mother was incarcerated, the last time in 2009/2010. Following this period of incarceration she suffered what he reported to be a mental breakdown. Dr Seidler reports that the impression she formed was that the offender’s mother suffered with some kind of psychotic condition in recent years, as did one of the offender’s sisters.
Although it is unclear, the offender’s father’s significant period of absence from the home may have been a result of periods of incarceration. The evidence suggests that the offender’s mother was incarcerated for periods of time. It is open to find that the cycle of intergenerational trauma brought about by incarceration, poverty, substance abuse and mental health issues had an adverse impact upon this offender during his formative years.
He described living an unstable and itinerant life. He attained independence for the first time at the age of 18. Having attended a number of different schools up until the age of 18, his education was interrupted. He fell behind and could not read and write properly. This caused him embarrassment and he would avoid participating in class so as to avoid ridicule.
His experience in secondary school was no better. He was the subject of racism and bullying. As a result, he became increasingly defiant and aggressive towards others often lashing out as a means of protecting himself and hiding his vulnerabilities.
He reported being forced to attend school regularly, but said that he would often be sent to school without food or the right uniform and that this only added to his shame and social difficulties.
To its credit, he attained a Certificate III in horticulture and landscaping. He worked in various capacities, including landscaping, carpentry, scaffolding, concreting and fencing. He has tended, however, to remain in jobs for only short periods before either being terminated or moving away from the area.
In his childhood he was diagnosed with epilepsy. He ceased taking medication at the age of 11 and has had no episodes of seizures since.
He reported that he drifted into an increasingly antisocial peer culture from his adolescence. Many of his peer group were known to him through the local area.
He was in a relationship for some 14 years and has three children aged between 7 and 12 years old. About six months into his time in prison, his partner left him taking the children with her. He acknowledges that he was the perpetrator of domestic violence in the relationship and no doubt this contributed to the breakdown of the relationship.
Mr Quinlan first consumed alcohol at about the age of 13 years. Perhaps this is unsurprising in light of his exposure to alcohol abuse by his parents at a young age. His alcohol use escalated when he was about 18 years old. There have been periods when he has tempered his use of alcohol, but he has often relapsed. He has consumed cannabis occasionally. More problematic was his use of amphetamines. He started smoking crystal methamphetamine at about the age of 26. His use escalated such that in the year before his arrest he was smoking this drug multiple times a day. He also reported engaging in problem gambling over a number of years.
During the interview with Dr Seidler, the offender admitted his involvement in the offences. He reported that his offending occurred at a time when he was drug affected and he was motivated by a desire to obtain money to fund his lifestyle, including his drug use.
He reported being ashamed. Dr Seidler expressed the view that the offender’s remorse was genuine and that he expressed some empathy for the victims of the crimes.
Psychometric testing revealed that the offender’s verbal comprehension skills fell in the low average range. His non-verbal or performance intelligence was in the borderline range. Overall, his cognitive capacity was estimated to be at the lower end of the low average range, with his performance being above 9% of the population.
Tests administered to measure his literacy revealed that his score was commensurate with that of a 12-year-old child. Dr Seidler opines that Mr Quinlan is generally functioning in the average to low average range across domains cognitively. There was no evidence of intellectual disability or gross neurocognitive deficit.
Dr Seidler concludes that there have been periods when Mr Quinlan would have clearly met the criteria for substance abuse and dependence conditions in addition to adjustment disorders with either anxious or depressed mood. There may also have been periods of major depression or persistent depressive disorder. Dr Seidler states that the offender has had a very difficult life that has exposed him to repeated acts of abuse and trauma and his early attachment experiences were highly disturbed such as that he did not progress through a healthy or conventional process of development.
She opines that this history resulted in a fundamental failure of the socialisation process such as to make him vulnerable emotionally, pervasively angry and experiencing difficulty with emotional regulation.
Dr Seidler concludes that Mr Quinlan is a disordered person who is struggling with psychosocial ramifications of his difficult life and his ongoing mental health concerns. She recommends that the offender engage in psychological treatment designed to assist him in a range of areas including substance abuse issues, anger management, improving his self-esteem and resolving past trauma. He will also require assistance with his general life skills once released to the community.
Mr Quinlan has prepared a letter to the court. He states that initially he did not want his family to know about the offences and that was one of the reasons he pleaded not guilty. His grandmother, with whom he was close, died whilst he was in custody. He was unable to attend her funeral and this has caused him distress. He expresses his remorse for his actions and claims to have set himself positive goals whilst he has been in custody.
The offender’s sister has also written a letter to the court. She confirms that her brother provided for the family growing up being the eldest child. His sister confirms that his family is supportive of him and will provide him with a home on his release.
I am satisfied that the evidence establishes a history of significant disadvantage and deprivation. He was exposed to alcohol abuse, substance abuse, poverty, family violence and dislocation as a child.
In light of the submission made by the Crown that I would give no or little weight to the history of deprivation and disadvantage because of the planned nature of the offences, I will return to this topic after I summarise the subjective case for Ralph Nabalarua.
Mr Quinlan has a number of prior convictions, although I am satisfied that his record is not an extensive one. He was dealt with by way of a suspended sentence in 2007 for an offence of affray. He was dealt with by way of community service orders in 2006 and 2009 for offences of assault. He was dealt with by way of section 9 bonds for offences of stalk and intimidate in 2006.
This is the first time he will be sentenced to a term a full-time imprisonment. His record is not an aggravating factor although he will not be afforded the leniency that would be extended to a first-time offender, or someone with a relatively minor record.
The offender has acknowledged his involvement in the offences. The Crown submits that in each case, I would afford no or little weight to the suggestion that the offenders are remorseful given the belated nature of their admissions that they participated in the offences.
This court often sees matters where, even following a finding of guilt by a jury, an offender continues to deny involvement in the offences. This is not the case here. I am satisfied that the offender, by acknowledging his guilt, albeit belatedly, demonstrates some insight into his offending conduct and the adverse impact it has had on others. I am satisfied that it reflects a degree of remorse.
A related submission made by the Crown is that I would have some difficulty in finding genuine remorse in view of the fact that the offenders did not take up the option available to them to nominate the identity of the two unknown co-offenders. I do not agree that the offenders’ failure to identify the co-offenders is a matter that I should take into account in finding against them with respect to remorse.
Had the offenders identified the co-offenders that would have been a relevant matter to take into account in assessing the degree of remorse or assistance to authorities. However, their failure to identify the co-offenders does not operate against them.
Mr Quinlan’s Corrective Service records reveal that he has had no internal disciplinary infringements since January 2017. I am satisfied that he has some prospects of rehabilitation.
The Crown submits that I would not make a finding of special circumstances, having regard to the fact that lengthy period of imprisonments will be imposed and that the usual period of parole will be adequate to assist the offender in reintegrating into the community. The Crown makes this submission in the case of each offender. On behalf of each offender, it is submitted that I would make a finding of special circumstances, having regard to the underlying issues that will be need to be addressed through supervision, counselling and treatment.
Notwithstanding the fact that each offender will be sentenced to a lengthy period of imprisonment, I am satisfied that special circumstances exist.
In Mr Quinlan’s case I make a finding of special circumstances on the following bases:

this is the first time that he is to serve a term of imprisonment;

there will be a measure of accumulation in the sentences imposed for the armed robbery offence and the attempted armed robbery offence;

he will require a longer than usual additional term to engage in psychological treatment to assist him with resolving past trauma, improving self-esteem, developing anger management skills, facilitating his general life management skills, including the capacity for problem-solving and decision-making;

he will require a longer than usual period on parole to receive counselling and treatment with respect to substance abuse issues so as to avoid relapse on his release.

Ralph Nabalarua - Subjective Case

Mr Nabalaura’s subjective case is before me by way of a number of documents tendered in the proceedings. Mr Tim Watson-Munro prepared a report which sets out the offender’s background, his drug and alcohol use and psychological history. The offender was 21 years old when he committed the offences. He is now 24 years old. He is a Fijian/Aboriginal man born in Port Macquarie. He has five siblings.
His parents separated some years ago when the offender was very young. His father passed away in 2014, prior to the commission of the offences. He travelled to Fiji to attend his father’s funeral.
The offender reported a difficult relationship with his stepfather who meted out differential treatment between his own children and the offender and his siblings. He was exposed to a household of excessive alcohol use, physical and psychological abuse during his childhood.
His childhood was also subject to an unstable early education with many movements between schools. He attended the Seventh Day Adventist High School for year seven and eight, the Westport High School for years nine and 10 and then Newman Senior College for years 11 and 12 where he undertook trade training. He reported struggling through high school but managed to complete year 12. He also reported that much of his childhood was spent with his grandmother, who had 60 grandchildren. The offender expressed some pride that he was the first of those grandchildren to finish high school.
The offender intended to join the Royal Australian Navy but a conviction for driving whilst suspended interfered with those ambitions. He reported that his life deteriorated from that point, both in terms of limited employment an escalating drug use.
The offender worked with the RTA for some months. He ceased work because his mother suffered a stroke and he became her carer. He was unemployed until 2014 when he secured employment at a mine in Mount Isa.
After only a month his father died and the offender left his employment to travel to Fiji for the funeral. He remained in Fiji for some three weeks and then returned to Sydney. He drifted into a pattern of drug use and criminal activity until he was incarcerated for these matters.
Following the death of his father the offender commenced using methyl-amphetamine. He also drank alcohol to excess.
The offender reported depressive episodes over the years. He was prescribed Avanza into 2015 but was non-compliant. The death of his father had a significant impact upon him and he is still suffering from unresolved grief.
The offender reported high levels of agitation, feelings of worthlessness and cognitive intrusion impacting on decision-making. He also reported low levels of energy and disrupted sleep.
Mr Watson Munro states that the offender impresses as a genuine individual who will respond well to treatment. He recommends cognitive behaviour therapy focused on the development of relapse prevention strategies, social skills training and motivational therapy.
A report of Dr Pollicina, psychologist, confirmed much of the offender’s personal history. It also confirms that the offender was very close to his biological father. On a number of occasions during the assessment, especially when speaking about his biological father, the offender became teary and emotional.
During the trial, Eva Monica Nelson gave evidence on behalf of the offender. She is the coordinator at Indigenous Links, which is a government funded program providing support for indigenous people in relation to a number of social issues including employment and housing.
She gave evidence, relied upon in the sentence proceedings, that she is aware the offender comes from a large family that faced a number of difficulties with housing, overcrowding, schooling, job opportunities and financial matters. She also gave evidence that the family dealt with “a deal of racial challenge in the area”. The offender experienced this disadvantage but wanted to break through the barriers by getting an education and the job in adulthood.
Further evidence has been placed before me today by way of an affidavit prepared by Lena Quinlan, the offender’s mother. She grew up on the mission and is one of eight children. Her mother, Judith, has 60 grandchildren. The offender is the second eldest of five children. Not long after he was born the family moved to Sydney. His biological father could not find work, and the family found it difficult to make ends meet.
In about 1994 the offender’s father was imprisoned. His mother formed a new relationship. She had three children to the offender’s stepfather. The offender’s stepfather was very abusive towards her. He was physically violent when he consumed alcohol to excess. He would beat her and hit her regularly. She would sustained bruising as a result. This violence was perpetrated in front of the offender and his siblings. The violence included verbal abuse.
The offender’s stepfather was also cruel to the offender. He would get angry with the offender and sometimes physically abusive.
When the offender was in kindergarten, his grandmother assumed care of him. She did this, because of the violent treatment that the children were subjected to at the hands of their stepfather. The offender’s mother maintained contact with the children on holidays. During those periods the stepfather was present.

In 2012 the offender’s mother suffered a stroke and was in hospital for over a month. She attended rehabilitation to learn to walk and talk again. She was virtually bedridden. During that time the offender lived with her and took care of her. He gave up his employment to do so.
Ms Quinlan confirms that the offender’s biological father passed away in 2014 not long before he committed the offences. His death had a significant adverse impact on the offender. His mother describes him as starting to act “very strange”. She later found out that he had started using drugs. He had not disclosed his drug use to her because he did not want to worry her.
She was shocked to hear about his offending conduct which she described as being out of character. She had always known the offender to be a hard worker, the first in the family to finish school and get a good job working in the mines.
Dr Pollicina concludes that the offender presented with the following symptoms: very depressed mood; anxiety; marked feelings of shame, guilt and remorse; feelings of helplessness and hopelessness; emotional affect; disrupted sleep; suicidal ideation with a low risk level owing to his religious beliefs.
The offender admitted his involvement in the offences. The offences took place at a time after the death of his father, when his life had spiralled out of control with increased drug use. During the assessment the offender reiterated the wrongfulness of his actions.
The acknowledgement by the offender that he did participate in the commission of the offences demonstrates a degree of remorse. True it is, he did not enter pleas of guilty and is therefore not entitled to any reduction in sentence. However his case can also be distinguished from those cases were an offender maintains their innocence following guilty verdicts. I am satisfied that he has demonstrated some remorse and contrition. This is relevant to his prospects of rehabilitation.
I have numerous documents confirming the offender’s educational achievements and past employment. I have also taken into account the evidence given during the trial of his previous good character. The offender’s history of prior convictions is limited. Those convictions are primarily related to driving offences and I am satisfied his record is such as to not disentitle him from a degree of leniency.
The Crown submits that in this offender’s case, the Corrective Service records reveal more recent internal infringements whilst in custody. In particular, the Crown points to a misconduct charge of intimidation in September 2017. I have had regard to the offenders conduct, or misconduct, whilst in custody. He was admitted into custody on 15 January 2015 and has remained in custody since that date. He has been on remand for a period of more than 2 and a half years. During that time he has come under notice for six internal infringements.
In assessing the Crown submission that I would be guarded about the offender’s prospects of rehabilitation, I have also had regard to the letter prepared by Pastor Evans (exhibit 7). Pastor Evans was not required for cross examination. He states that he has visited the offender in custody and they have discussed at length the choices he has made and the man that he wants to be. Pastor Evans confirms that the offender has enrolled in and is completing a Bible study course and has expressed his desire to change his life and study to be a minister.
Whilst I remain guarded about his prospects of rehabilitation, I am satisfied that he does have some positive prospects and can turn his life around and become a law-abiding citizen.
The Crown submits that I would have regard to the fact that he committed further offences in November 2014 for which he is to be sentenced by another judge next year. However, no material has been placed before me as to the circumstances relating to the subsequent offending conduct. I simply know nothing about it. I cannot, in those circumstances make any considered finding with respect to the subsequent offences except perhaps to find that at the end of 2014 the offender’s life had spiralled out of control with escalating drug use and the commission of serious offences.
I am satisfied in his case that he has some prospects of rehabilitation, which will be greatly facilitated by a longer than usual additional term. I make a finding of special circumstances for the following reasons:

this is the first time that the offender will serve a lengthy period of imprisonment;

I am satisfied that he needs a longer than usual additional term to receive treatment and counselling with respect to substance abuse issues;

I am satisfied that he requires a longer than usual additional term to receive grief counselling.

Bugmy v The Queen

I return now to the use to be made of the offenders’ history of childhood deprivation and disadvantage. It is submitted on behalf of the offenders that their background of disadvantage is relevant to an assessment of moral culpability. The Crown makes the submission that no or little weight can be given to the offenders’ history of childhood deprivation in assessing their moral culpability.
As I understand the submission, the Crown contends that because the offences were planned rather than ‘born of frustration’, the offenders’ childhood history of deprivation and disadvantage should not operate to reduce their moral culpability.
In support of that submission the Crown relies upon the Court of Criminal Appeal decision of Taysavang v R; Lee v R [2017] NSWCCA 146.
That was an appeal against sentence imposed in the District Court for an offence of supplying a prohibited drug. One of the grounds of appeal was the sentencing judge’s failure to find that the applicant’s moral culpability for the offence was low having regard to his disadvantaged background.
The Court of Criminal Appeal held there was no error on the part of the sentencing judge. In doing so the Court referred to a portion of paragraph [44] in Bugmy v The Queen (2013) 249 CLR 571 where the Court said:

“….An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender”.

In Taysavang, the Court observed that there was nothing in the evidence in that case to suggest that frustration on the part of the applicant gave rise to unconsidered action on his part. The Court said that

‘it was not an offence of a kind that could sensibly be regarded as flowing from dysfunctional tendencies subconsciously absorbed from experience within the offender’s family in early childhood.’

The Crown in this case calls in aid that statement to support a submission that I would give no or little weight to the history of disadvantage and deprivation when assessing the offenders’ moral culpability.
The High Court in Bugmy v The Queen (2013) 249 CLR 571, dealt, amongst other things, with the specific offending conduct involved in that case. In reference to that specific conduct the High Court made the statement referred by the Court of Criminal Appeal in Taysavang.
However, to rely solely on this portion of the judgment (Bugmy at [44]) ignores other important passages of the same judgment.
At paragraph 42, the Court, in referring to the submissions of the Director of Public Prosecutions on the appeal, said:

“the Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case” (emphasis added).

Furthermore, the High Court held that the Director’s concession should be accepted. The Court went on to say:

“The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending”.

The principle enunciated by the High Court in Bugmy cannot be limited in the way contended for by the Crown in this case. To so limit the application of principle is arguably to err in the same way the Court of Criminal Appeal did when it upheld the Crown’s inadequacy appeal in Bugmy.
The High Court did not limit the application of principle to offences that are wholly impulsive. Indeed, recognition that a background of deprivation may compromise a person’s capacity to mature and to learn from experience may be as relevant to offending conduct that involves some planning as it is in cases of offences born of frustration or anger. All depends upon the circumstances of the individual case.
The plurality in Bugmy were not saying that a consideration of an offender’s childhood of deprivation and disadvantage was optional: (see Ingrey v R [2016] NSWCCA 31 at [35]). What the plurality clearly had in mind was that there may be countervailing factors (such as specific deterrence or the protection of the community) which may reduce the weight to be given to a background of disadvantage or deprivation.
In R v Millwood [2012] NSWCCA 2, Simpson J said: “I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”
This is not to say that such a person bears no moral responsibility. It is simply to say that an offender’s dysfunctional childhood is one of the many factors to be taken into account in assessing that person’s moral culpability and determining the appropriate penalty.
In my view, the Crown’s submission is misconceived. Dr Seidler’s report (relied on in the case of Mr Quinlan) was not objected to. She was not required for cross-examination, nor were her opinions challenged. True it is that the offender did not give evidence before me and I must therefore consider the weight to give the history provided in the report. However, there is no issue in Mr Quinlan’s case, that the evidence establishes a childhood of deprivation and disadvantage. Indeed, the Crown accepted what was reported in Dr Seidler’s report. I accept the history of childhood disadvantage and deprivation is an accurate and honest one.
I also accept, in the case of Mr Nabalurua, that in his formative years he was exposed to an environment of deprivation and disadvantage which included exposure to alcohol abuse and violence
Dr Seidler opines that such a history is known to compromise the development of a child. Furthermore, she notes that as a result of Mr Quinlan’s childhood experiences he failed to learn the basic processes of socialisation and became an adult who is vulnerable emotionally, with few social skills and little capacity for consistent, stable, productive community living.
There has been significant psychological research in the area of brain development and early trauma. The quality of parent-infant attachment can exert a profound influence on children’s developmental trajectories. Adverse childhood experience, including emotional and physical abuse, household dysfunction, alcohol and substance abuse, violent treatment of a mother, parental separation or divorce and poverty are all factors that can change the functioning of brain circuits during childhood and into adolescence. The immature brain can result in poor decision-making and a preference for immediate gratification over future welfare.
If a child’s development is compromised in such a way, how is it irrelevant or of little weight when it comes to assessing that persons moral culpability as an adult? A child’s development is either compromised or it is not. The childhood experience informs the conduct of the adult that that child becomes. A compromised development may give rise to compromised maturity in adulthood and a compromised capacity to learn from one’s experience.
Such a compromised beginning continues to have relevance throughout a person’s life. It continues to have relevance whether or not the offence is born of frustration or involves some planning. The extent to which a history of deprivation reduces moral culpability will of course vary depending upon the circumstances of the individual case. Here, whilst there was some planning, it was not sophisticated or particularly well organised criminal activity.
But to submit that evidence of childhood deprivation and disadvantage has no or little bearing on an assessment of moral culpability where an offence involves planning is inconsistent with the statement of principle in Bugmy. I reject the Crown’s submission that the principle enunciated by the High Court in Bugmy is to be shackled or diluted in the way contended for.
An offender’s deprived background does not have the same mitigatory relevance for all of the purposes of punishment. It may well be, for instance, that notwithstanding a deprived background, significant weight must be given to specific deterrence or the protection of the community where the offender has a long history of offending.
Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion a complex exercise. In exercising that discretion I bear in mind the principle enunciated by the High Court:

“because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offenders deprived background in every sentencing decision” (emphasis added).

I am not persuaded by the Crown’s submission that the offenders’ background of deprivation has no or little weight. I am satisfied that it is a matter relevant to each subjective case. The offenders’ background, marred as it was by violence, disadvantage, poverty, an absence of a significant and positive role models and exposure to substance abuse, is relevant to the development and maturity of each offender.
Although the offences were not impulsive or born of frustration, in each case, the offender’s background of deprivation has had a bearing on their capacity to mature and learn from experience. In each case, that history has had an impact on the choices made by each offender in dealing with life’s challenges.
None of this excuses the criminal conduct in any way whatsoever. However, it is material that is relevant to the development of each offender and the choices he exercised. It is background that is relevant to an assessment of moral culpability.
I am satisfied that childhood deprivation and disadvantage in each case is relevant to that assessment and I find that the moral culpability is reduced to a degree by reason of that background.
Each offence involves discrete criminal activity. There will be a measure of accumulation reflected in the aggregate sentence. In determining the degree of accumulation, I have taken into account the principle of totality. Whilst discrete criminal conduct, each offence took place over a relatively short period of time on the one day.
I have considered the principle of parity which must be applied to ensure that appropriate sentences are imposed having regard to any relevant differences in each case. Here, each offender played an equal role in the commission of the offences. Further, I am not of the view that there are any points of distinction in their subjective cases such as to warrant a different penalty. I am satisfied therefore that the same sentence be imposed in each case.

Determination

Kareel Quinlan

Accordingly the offender is convicted.

I note the following indicative sentences would have been imposed for each offence:

For the offence of Attempted robbery while armed with dangerous weapon (count 1), I indicate a sentence of 6 years imprisonment.
For the offence of Knowingly drive or be carried in conveyance taken without consent of owner (count 2), I indicate a sentence of 18 months imprisonment.
For the offence of Robbery whilst armed with a dangerous weapon (count 3), I indicate a sentence of 5 years 6 months imprisonment.

Taking into account a finding of special circumstances pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 the offender is sentenced to an aggregate period of imprisonment consisting of a non-parole period of 4 years 6 months commencing on 30 April 2015 and expiring on 29 October 2019 with a balance of term of 4 years expiring on 29 October 2023. The total term is 8 years 6 months.

The offender is eligible for consideration for release on parole at the expiration of the non-parole period subject to the guidance and supervision of Community Corrections for as long as they deem necessary.

Ralph Nabalarua

Accordingly the offender is convicted.

I note the following indicative sentences would have been imposed for each offence:

For the offence of Attempted robbery while armed with dangerous weapon (count 1), I indicate a sentence of 6 years imprisonment.
For the offence of Knowingly drive or be carried in conveyance taken without consent of owner (count 2), I indicate a sentence of 18 months imprisonment.
For the offence of Robbery whilst armed with a dangerous weapon (count 3), I indicate a sentence of 5 years 6 months imprisonment.

Taking into account a finding of special circumstances pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 the offender is sentenced to an aggregate period of imprisonment consisting of a non-parole period of 4 years 6 months commencing on 15 January 2015 and expiring on 14 July 2019 with a balance of term of 4 years expiring on 14 July 2023. The total term is 8 years 6 months.

**********

Amendments

22 November 2017 - Correction to name of Crown

01 December 2017 - Decision date amended from 17 October 2017 to 17 November 2017

Decision last updated: 01 December 2017

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