Nabalarua v R [2020] NSWCCA 68

Court of Criminal Appeal Supreme Court New South Wales 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)