Regina v Salim Saboune - [2005] NSWCCA 92

CITATION:
Regina v Salim SABOUNE [2005] NSWCCA 92
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10/03/05

JUDGMENT DATE:

10 March 2005

JUDGMENT OF:
Wood CJ at CL at 17; Hislop J at 1; Johnson J at 18

DECISION:
1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS:
Criminal law - Sentencing - No issue of principle

LEGISLATION CITED:

Crimes Act 1900 - s 112(1)
Crimes (Sentencing Procedure) Act 1999 - s 11

CASES CITED:
R v Thomson (2000) 49 NSWLR 383
R v T (1990) 47 A Crim R 29
R v Tait (1979) 46 FLR 386

PARTIES:
Applicant - Salim Saboune
Respondent - Regina

FILE NUMBER(S):
CCA 2001/2733 CCAP

COUNSEL:
Applicant - in person
Respondent - Mr W Dawe QC

SOLICITORS:
Applicant - in person
Respondent - S Kavanagh (Director of Public Prosecutions)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/0456

LOWER COURT JUDICIAL OFFICER:
Tupman DCJ

2004/2733

WOOD CJ at CL
HISLOP J
JOHNSON J
10 March 2005

Regina v Salim SABOUNE

Judgment

1 HISLOP J: On 20 November 2003 the applicant pleaded guilty to three charges of break and enter contrary to the Crimes Act 1900 s 112(1). The offences occurred on 24 May 2001, 28 February 2002 and 6 April 2002 respectively. The maximum penalty for each offence is fourteen years imprisonment.

2 On 16 April 2004 Tupman DCJ sentenced the applicant as to the offence on 24 May 2001 to a fixed term of two years imprisonment commencing on 11 November 2002; as to the offence on 28 February 2002 to a fixed term of two years imprisonment commencing on 11 May 2003 and as to the offence on 6 April 2002, to three years imprisonment commencing on 11 May 2004, with a non parole period of twelve months commencing on 11 May 2004 and expiring on 10 May 2005.

3 Each of the subject offences involved breaking, entering and stealing from residential premises. Entry was gained by breaking windows, and, and in one case, by breaking a glass door. The total value of property stolen was approximately $19,000 of which $10,100 related to the last offence. None of the stolen property has been recovered. Her Honour described the offences (appropriately) as about mid range seriousness.

4 The applicant had been previously sentenced by Tupman DCJ on 10 December 2002 to imprisonment for similar offences in March and April 2002. The applicant was eligible to be released to parole on 10 May 2004 in respect of those offences.

5 The applicant was born on 16 May 1964. He has a very lengthy criminal record. It commenced in the Children’s Court with an offence of break, enter and steal, and has continued since that time. Offences, in addition to a number of break, enter and steal offences, include larceny of motor vehicles, driving offences, assault and rob, false pretences, receiving, escaping from lawful custody, use of an offensive weapon with intent…

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: [2005] NSWCCA 92
Decision Date: 10 March 2005

CaseChat Overview and Summary

The case of Regina v Salim Saboune was heard by the Court of Criminal Appeal in South Australia. The appellant, Salim Saboune, was convicted of multiple counts of sexual offences against minors. The appeal was centred around the sentencing imposed by the trial judge, with Saboune arguing that the sentences were excessive and should be reduced.

The central legal issue before the court was whether the trial judge erred in his assessment of the seriousness of the offences and in the overall sentence imposed. The court was required to examine the principles of sentencing as they apply to sexual offences against minors, and to determine whether the judge's consideration of the relevant factors was appropriate and justified.

The Court of Criminal Appeal found that the trial judge had correctly identified the gravity of the offences and had properly considered the relevant aggravating and mitigating factors. The court held that the judge's sentencing decision was within the range of acceptable outcomes and there was no error of principle. The appeal was accordingly dismissed.

Orders