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 to resist arrest, disposing of stolen property, wilfully obstructing an officer in the execution of his duty and drug use and possession. At the time of the first of the subject offences, the applicant was on parole in respect of an earlier offence of aggravated break and enter, and at the time of all three offences, he was subject to an eighteen month bond.

6 Her Honour accepted pre-sentence reports which revealed the applicant was from a family of eight children who migrated to Australia from Lebanon when the applicant was eight. He apparently displayed learning and behavioural difficulties from an early age, he made a poor choice of peers and associates as a young person and this led to his criminal activity at that time. He is now married and has children. The marriage has suffered because of his use of illegal drugs, and there have been separations. He has a limited educational background, having left school at the age of fifteen without gaining literacy or numeracy skills. His employment has consisted mainly of short term unskilled positions. He started to use illegal drugs at the age of seventeen and from the age of about eighteen he has been addicted to heroin, although from time to time he has been able to cease use of drugs entirely. Her Honour found that the bulk, if not the whole of his criminal offending, was connected with his addiction to heroin and that was the key to his offending behaviour.

7 In January 2003, whilst in custody for the offences for which he was sentenced in December 2002, a DNA sample was taken from the applicant. The sample matched samples of blood taken from the sites where each of the subject offences occurred. In August 2003, the police interviewed the applicant in respect of these offences leading to the subsequent guilty plea.

8 The applicant is unrepresented in this Court and seeks leave to appeal against sentence. In his written submissions, he has asserted, “The additional sentence is excessive and request immediate parole”. The bases advanced in his submissions for that conclusion are discussed as follows:

9 The first basis is that the applicant has shown remorse and contrition.

There was no specific evidence led at the sentence hearing as to remorse or contrition on the part of the applicant. However, a plea of guilty is taken to be a manifestation of remorse or contrition and to warrant a reduction in sentence on that basis, see R v Thomson (2000) 49 NSWLR 383 at 386. Her Honour held that a full discount ought to attach to the pleas of guilty. In these circumstances it has not been demonstrated that her Honour made any error in this regard.

10 The second basis is that at the time of his arrest, the applicant had commenced medical treatment for psychosis arising from his drug addiction.

Her Honour accepted the addiction to heroin was the key to the applicants criminal offending and she accepted his evidence that he had no memory of having committed the subject offences because of his very lengthy history of addiction to heroin. No medical evidence was adduced at the sentence hearing or on this appeal. No error by her Honour in this regard has been demonstrated.

11 The third basis was that the applicant had undertaken a number of courses and drug rehabilitation programs prior to his conviction for the subject offences. He had been moved numerous times after the subject charges were laid. If this had not occurred he would have completed a number of other courses. The fact he was not able to show the sentencing judge the completed courses led to his additional sentencing.

Her Honour made express reference to the drug programs and vocational courses which the applicant had undertaken in her Remarks on Sentence. She expressly accepted that the applicant had taken full advantage of the range of programs that was available to him and to have used his time well in custody in that regard. There is no basis for the inference advanced by the applicant.

12 The fourth basis was that the additional imprisonment has led to stress and anxiety for the applicant and his family and in particular his father who has supported him throughout and who is suffering from terminal cancer and his wife who is on medication for depression and finding coping difficult. This morning the appellant informed the Court that his father had had a stroke two weeks ago and that there were marital problems between himself and his wife.

Inevitably, there is hardship which results to a family when the breadwinner is imprisoned. It is only when such hardship is extreme and goes far beyond the sort of hardship which inevitably results that the Court may take it into account, see R v T (1990) 47 A Crim R 29 at 40. There was no medical evidence before the court to confirm the applicant’s assertions. However, even accepting those assertions, the circumstances in this case are not so uncommon or extreme as to justify intervention.

13 The fifth basis is there was delay in proceeding against him in respect to the subject offences. Undoubtedly delay occurred between the commission of the offences and the ultimate charging and sentencing. However, her Honour referred to this in her Remarks on Sentence and expressly took it into account when expressing the appropriate penalties. As her Honour concluded in her Remarks on Sentence:

“Ultimately, it seems to me, that the real issue for my determination is the question of totality. In other words, if I had been sentencing him for these offences on 10 December 2002 together with those for which I did sentence him, what would have been the appropriate sentencing outcome as a total package. It is on that basis that I propose to sentence him for these individual offences and to view them”.

The sentences imposed by her Honour effectively required the applicant to spend an additional year in custody in respect of the subject three offences.

14 The applicant this morning confirmed his reliance on his written submissions. He also drew attention to the fact that he spent some time in a drug rehabilitation program under s 11 of the Crimes (Sentencing Procedure) Act 1999. That release was revoked as a result of his breach and that matter was expressly taken into account by her Honour. No error in this regard is demonstrated.

15 The limitations on appeals must be borne in mind. As stated in R v Tait (1979) 46 FLR 386 at 388:

“An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error”.

16 In my opinion, no error on the part of her Honour has been demonstrated. Each of the matters to which the applicant has made specific reference in his submissions was appropriately dealt with by her Honour. The overall sentence is within the range open to her and cannot be characterised as manifestly excessive.

I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

17 WOOD CJ at CL: I agree.

18 JOHNSON J: I also agree.

19 WOOD CJ AT CL: The orders of the Court will be as Hislop J has proposed.

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17/03/2005 - Correct order of coram - Paragraph(s) Coversheet