Nabalarua v R [2020] NSWCCA 68

Nabalarua v R [2020] NSWCCA 68

The sentencing exercise miscarried because the sentencing judge made findings about the firearms used in the robberies that were not open on the agreed facts and relied, without agreement, order or procedural fairness, on material from a co-offender's trial. Those findings had the capacity to make the offending appear more serious and therefore constituted material sentencing error. The other asserted errors concerning Bugmy, deprived background, prior good character and youth were not established. Leave to appeal was granted, the appeal allowed, and the applicant was resentenced afresh to an aggregate sentence of 11 years and 6 months with a non-parole period of 6 years and 9 months.

Jurisdiction
Australia
Judgment Date
09 April 2020
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal From an Aggregate Sentence Imposed by the District Court
Outcome
Leave to appeal granted; appeal allowed; aggregate sentence set aside; applicant resentenced.
Legal Topics
['robbery While Armed With a Dangerous Weapon' 'aggregate Sentence' 'agreed Facts and Sentencing Fact Finding' 'procedural Fairness' 'material Sentencing Error' 'bugmy Principles' 'prior Good Character' 'youth of Offender' 'manifest Excess' 'resentencing']
['criminal Law' 'sentencing' 'criminal Appeals'] ['robbery While Armed With a Dangerous Weapon' 'aggregate Sentence' 'agreed Facts and Sentencing Fact Finding' 'procedural Fairness' 'material Sentencing Error' 'bugmy Principles' 'prior Good Character' 'youth of Offender' 'manifest Excess' 'resentencing']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal From an Aggregate Sentence Imposed by the District Court

Legal Issues

  1. 1 ["Whether the sentencing judge erred by making findings of fact about the firearms and circumstances of the offences that were inconsistent with or extended beyond the agreed facts by reference to evidence adduced at a co-offender's trial." 'Whether any fact-finding error was material because it had the capacity to influence the sentence imposed.' "Whether the applicant was denied procedural fairness in relation to findings based on material from the co-offender's trial." 'Whether the sentencing judge erroneously applied sentencing principles concerning deprived background, prior good character, youth and Bugmy principles.' 'Whether the applicant should be resentenced and, if so, what aggregate sentence and indicative sentences should be imposed.']

Ratio Decidendi

The sentencing exercise miscarried because the sentencing judge made findings about the firearms used in the robberies that were not open on the agreed facts and relied, without agreement, order or procedural fairness, on material from a co-offender's trial. Those findings had the capacity to make the offending appear more serious and therefore constituted material sentencing error. The other asserted errors concerning Bugmy, deprived background, prior good character and youth were not established. Leave to appeal was granted, the appeal allowed, and the applicant was resentenced afresh to an aggregate sentence of 11 years and 6 months with a non-parole period of 6 years and 9 months.

Court Disposition

Leave to appeal granted; appeal allowed; aggregate sentence set aside; applicant resentenced.

Orders

  • ['Grant leave to appeal.' 'Appeal allowed.' 'Set aside the aggregate sentence imposed on the applicant by the District Court on 19 October 2018.' 'Impose an aggregate sentence of 11 years and 6 months imprisonment to commence on 15 January 2016 and expire on 14 July 2027.' 'Pursuant to s 44(2A) of the Crimes...