Saban v Regina - [2007] NSWCCA 139

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Saban v Regina [2007] NSWCCA 139

FILE NUMBER(S):
2007/398

HEARING DATE(S): 16 May 2007

JUDGMENT DATE: 16 May 2007
EX TEMPORE DATE: 16 May 2007

PARTIES:
Michael Nicholas Saban
Regina

JUDGMENT OF: Price J McClellan CJ at CL Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/61/0043

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 3 August 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
Regina v Michael Nicholas Saban

COUNSEL:
P Barrett - Respondent
C Davenport SC - Applicant

SOLICITORS:
S Kavanagh
S O'Connor - LAC

CATCHWORDS:
Criminal law - sentencing - history of repeat offending - subjective circumstances - offences on Form 1 - sentence not manifestly excessive.

LEGISLATION CITED:
Crimes Act 1900 s 61, s 85, s 99(1)

CASES CITED:
Des Rosiers v R [2006] NSWCCA 16
R v Henry (1999) 46 NSWLR 346
R v M.A.K R v M.S.K [2006] NSWCCA 381
R v McNaughton [2006] NSWCCA 242
Regina v Stankovic [2006] NSWCCA 229

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/398
McClellan CJ at CL
Hidden J
Price J
16 May 2007

Michael Nicholas SABAN v REGINA

Judgment

PRICE J: This is an application for leave to appeal by Michael Nicholas Saban (conveniently referred to as the applicant) against the severity of the sentence imposed upon him in the District Court at Bathurst by Nield DCJ on 3 August 2006.
The applicant pleaded guilty in the Local Court to a charge of robbery in circumstances of aggravation contrary to s 95 of the Crimes Act 1900 and adhered to that plea when he appeared before his Honour on 26 July 2006.
An offence contrary to s 95 of the Crimes Act is punishable by imprisonment for twenty years.
On 3 August 2006, the applicant was sentenced by his Honour to imprisonment for six years and nine months. The Judge fixed a non-parole period of four years and nine months to commence on 1 October 2005 and to expire on 30 June 2010 with a parole period of two years to commence on 1 July 2010 and to expire on 30 June 2012.
Three offences on a Form 1 were taken into account on sentence namely one offence of common assault contrary to s 61 of the Crimes Act and two counts of demanding property with menaces contrary to s 99(1) of the Crimes Act.
The facts
An agreed statement of facts was placed before the Judge and may be conveniently summarised.
Form 1 offence 1 (assault):
On 30 September 2005 at approximately 5pm the applicant uninvited joined a group of acquaintances at a flat in Bathurst. He then followed the victim (Ms Nightingale) and her boyfriend as they went for a walk. The victim and her boyfriend entered into a “play fight.” The applicant took exception to this and then threatened the victim before producing a knife. He started waving the knife around and…

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.

Continue reading Saban v Regina

Details

AGLC: Saban v Regina [2007] NSWCCA 139
Case: [2007] NSWCCA 139
Decision Date: 16 May 2007

CaseChat Overview and Summary

The case of Saban v Regina involved the sentencing of the applicant for three offences on Form 1, including one count of common assault and two counts of demanding property with menaces. The applicant's history of repeat offending was considered in determining the appropriate sentence. The sentencing was conducted in an Australian court, which was tasked with ensuring that the sentence imposed was not manifestly excessive.

The central legal issue in this case was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the applicant's history of repeat offending and his subjective circumstances. The court needed to balance the need for general deterrence and the protection of the community with the individual circumstances of the applicant. The court also had to consider whether the sentence reflected the gravity of the offences committed.

The court's reasoning focused on the need to impose a sentence that was proportionate to the gravity of the offences while also considering the applicant's subjective circumstances. The court acknowledged the applicant's history of repeat offending but found that the sentence imposed by the trial judge was not manifestly excessive. The court considered the seriousness of the offences, the applicant's lack of remorse, and the need for general deterrence. Ultimately, the court held that the sentence was appropriate and did not constitute an error in principle.

No further orders were made by the court, and the sentence imposed by the trial judge was upheld.

Orders

Orders of the court

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Background

Background to the litigation

Three offences on a Form 1 were taken into account on sentence namely one offence of common assault contrary to s 61 of the Crimes Act and two counts of demanding property with menaces contrary to s 99(1) of the Crimes Act.The facts An agreed statement of facts was placed before the Judge and may be conveniently summarised.Form 1 offence 1 (assault):On 30 September 2005 at approximately 5pm the applicant uninvited joined a group of acquaintances at a flat in Bathurst. He then followed the victim (Ms Nightingale) and her boyfriend as they went for a walk. The victim and her boyfriend entered into a “play fight.” The applicant took exception to this and then threatened the victim before producing a knife. He started waving the knife around and made jabbing motions towards the victim’s face. The applicant then pushed her in the chest causing her to trip and lose her balance. He then took hold of her neck and shoulder before the male friend intervened. The victim then ran away and the applicant followed her with the knife in his hand.Indictment (aggravated robbery) and Form 1 offence 2 (demand with menace):Later on that same day, the applicant approached the victim (Mr Tidsell) who had returned home on his motor bike. He offered to buy the bike from the victim who repeatedly told him he was not interested in selling it and tried to get away. The applicant came up beside him and put his arm tightly around the victim. He insisted that the victim come with him next door. The victim was unable to pull away and went with him. The applicant suddenly grabbed the victim and pushed his face into a wall. The applicant told him to spread his legs so he could search him for the registration papers for the bike. The applicant produced a knife and thrust it towards the victim’s chest. He then said to the victim:“You are going to sell me the bike or give it to me or else I’m going to stab you. I don’t care if I go to jail (sic) it would be worth it.”The applicant continued to press the knife into the victim’s chest. Having discovered the victim’s mobile phone, he took it. The applicant continued asking for a receipt saying that the bike was his. He insisted that the victim call him by his name and say “Yes, Michael” to everything he was saying or he would stab him. The victim fearing for his life started to dry retch. The applicant grabbed the victim who fell backwards then escaped leaving the applicant in possession of his mobile phone.Form 1 offence 3 (demand with menace): At around 10am on the next day the applicant went to the “Returns Desk” at K-Mart in Bathurst with an unknown male. He demanded that staff give the other male a refund for goods he was presenting, which was refused as there was no receipt. The applicant then abused and threatened staff saying:“Fuck off I’m not scared of you. Give him the money or I’ll do time for you. I’ve been to prison, it doesn’t scare me, give him the fucking money or else!” Police were called and the applicant was arrested.Subjective circumstances

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ, CLELLAN CJ

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