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 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 of the applicant’s subjective circumstances was before the Judge by way of a report of a psychologist, Suzanne Freeman, and the oral evidence of the applicant himself and his brother, Mario Saban.
The applicant was born on 8 June 1974 and at the time of offending was aged 31 years. It appears that he had a very dysfunctional and fearful early life. The family moved to Bathurst when he was a child. His parents were of Croation background. His father, a violent alcoholic, physically abused all members of his family. There were nine children, the applicant being the fifth child. Two of the daughters were sexually abused. The children were often hungry and their father who was on a pension scavenged for food from supermarket bins. As a result of his father’s behaviour the applicant was treated as an outcast at school. When he was 11 years old, his parents separated. The applicant’s father after making several threats that he would do so committed suicide by burning down the house with himself inside. After his father’s death, the applicant attempted to overdose on tablets.
The applicant was expelled from school at the beginning of year 9. After leaving school he attended Bathurst TAFE where he completed an apprenticeship course in spray painting.
He had commenced using cannabis and drinking alcohol at about the age of 12 or 13. After he left school he was drinking daily although not when he was in employment. He moved to Western Australia in about 1994-1995. The applicant has had various jobs the last being with Beaurepaires in Sydney following his return to New South Wales.
The psychologist in her report noted that when the offences occurred he had been drinking and the applicant had stated he “cannot remember much” because he “got really totalled”. He expressed his remorse for his [offending] behaviour and he recently recognised he had a big problem with alcohol. Recently the applicant completed a drug and alcohol relapse and prevention course in Parklea Correctional Centre.
During his evidence, the applicant told the Judge that he had never thought about his addiction to alcohol “as much as I have this time in this prison sentence…..” and “I even got off my own behind and approached the drug and alcohol person in, in prison at Parklea and did a, a drug awareness certificate program”. (T13, 26/07/06)
Ms Freeman opined that the applicant is extremely anxious and suffers from symptoms of depression. He has a withdrawn, isolated personality style with strong depressive, self-defeating and anti-social features. He requires counselling to help alleviate his depression and anxiety and to help him improve his self-esteem.
Prior criminal history
The applicant has a lengthy criminal record as a juvenile and as an adult. Included in that record are sentences of imprisonment in New South Wales for offences of assault occasioning actual bodily harm and malicious wounding. Of particular significance are convictions in Western Australia on 12 June 2000 in the Perth District Court for robbery and threats to injure and in the same court on 12 April 2002 for receiving, burglary and breach of suspended sentences.
For the offences which I have last mentioned the applicant received a total sentence of 6 years imprisonment to date from 25 December 2001. It appears that the applicant was released on parole which was transferred to New South Wales.
It is appropriate to note that at the time of the commission of the present
offences the applicant was subject to that parole.
Dealing with the Appeal
The sole ground of appeal is the applicant’s contention that the Judge gave insufficient weight to the applicant’s background and prospects of rehabilitation as a consequence of which the sentence is manifestly excessive.
The applicant contends that his Honour gave only cursory attention to the background of extreme deprivation and violence and the Judge’s only regard to that was a reference to the psychologist’s report. The applicant complains that his Honour remarked that he was unaware of anything untoward in the applicant’s mental state despite references in the psychologist’s report to several suicide attempts and symptoms of depression.
It is evident from his Honour’s remarks that he paid more than cursory attention to the background of the offending. He referred to the psychologist’s report and to the applicant’s background and upbringing. The Judge acknowledged the tragic death of the applicant’s father, his unhappy childhood and teenage years. He noted his excessive consumption of alcohol and smoking of cannabis. His Honour, however, did not expressly mention the applicant’s attempted suicides and the psychologist’s assessment of continuing depression and anxiety. The Judge did note [ROS at para 11] that [the applicant] “has suffered episodes of depression”. In any event, the assessment made by Ms Freeman was confined, as mentioned, to depression and anxiety.
The applicant complains that it was not open to his Honour to find that the applicant had no desire to change his ways and would be likely to re-offend. There was evidence before the Judge, the applicant contends, that he had for the first time recognised that he has a problem with alcohol and had sought to address this problem.
This contention is based on remarks on sentence made by the Judge. His Honour, relevantly, said (ROS at para 27):
“As to the prospects of the offender’s rehabilitation and the likelihood of the offender not re-offending, I doubt that, having regard to his past, the offender has any desire to change his ways and I suspect that, if he does not get his way or want (sic) he wants, he will re-offend.”
His honour had earlier noted that [the applicant] had been dealt with for fifteen offences in New South Wales, one offence in Queensland and twenty offences in Western Australia.
His Honour remarked:
“It is obvious and fair to say that the offender has learnt nothing whatsoever from his earlier offending and the sentences imposed upon him for those offences.” (ROS at para 8)
It was open to his Honour, a very experienced sentencing Judge, to be doubtful about the prisoner’s prospects of rehabilitation.
The applicant has an unattractive history of similar offending and the present criminality occurred whilst he was subject to parole. The Judge was not obliged to accept without question the evidence of the applicant.
His Honour accepted that the plea of guilty demonstrated remorse for the offence and identified as one of the mitigating factors the provisions of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1989. The Judge also accepted that the aggravated robbery was unplanned.
In determining the appropriate sentence, his Honour took into account, as he was required to do, the offences on the Form 1 and appropriately remarked “that the sentence for the aggravated robbery offence will be longer than the sentence that would have been imposed for it had it been the only offence” and cited recent authorities: see Des Rosiers v R [2006] NSWCCA 16, Regina v Stankovic [2006] NSWCCA 229.
Offence 1 on the Form 1 was an offence discrete from the aggravated robbery as was offence 3. The applicant’s offending in the commission of the offence of common assault included threatening the victim by the use of a knife.
The criminality involved in the Form 1 offences was such that the Judge was entitled to significantly increase the penalty for the primary offence.
From the identification by his Honour of the aggravating factors taken into account in determining the appropriate sentence it is apparent that he did not regard the applicant’s record of previous convictions as an aggravating factor. The Judge considered that both general and personal deterrence to be important. His Honour remarked [ROS at para 28]:
“The offender must be reminded, yet again, and loudly and clearly, that repeat offending will not be tolerated.”
His Honour was entitled to have regard to the applicant’s record of repeat offending in giving more weight to retribution, personal deterrence and the protection of the community than would be the case if such a record did not exist: see R v M.A.K R v M.S.K [2006] NSWCCA 381 [at 51], R v McNaughton [2006] NSWCCA 242.
The primary offence was a serious offence during which the victim was manhandled by the applicant, threatened with a knife, his clothes searched and phone was stolen.
In his sentencing remarks, his Honour referred to a number of considerations in R v Henry (1999) 46 NSWLR 436, the guideline judgment on armed robbery offences. The applicant’s criminal history and the offences on the Form 1 are factors which justify a sentence above the sentencing range identified in Henry.
His Honour appropriately determined that the utilitarian value of the plea of guilty attracted a discount of 25 per cent.
An offence contrary to s 95 of the Crimes Act is punishable by 20 years imprisonment. Notwithstanding the subjective features of the applicant, an undiscounted starting point of the sentence of nine years was within an appropriate range. I am not persuaded that the Judge gave insufficient weight to the subjective background of the applicant and his prospects of rehabilitation. I am unable to find that the sentence was manifestly excessive.
The Judge did not find special circumstances and it was within his discretion not to do so. Although such a finding was made, a balance of term was fixed which exceeds one third of the non-parole period of the sentence. As the error favours the applicant, I do not propose to interfere with it.
I propose that leave to appeal be granted, but the appeal be dismissed.
McCLELLAN CJ at CL: I agree.
HIDDEN J: The sentence was undoubtedly severe but I am not persuaded that it was outside the bounds legitimately open to his Honour. I say so in the light of the extent of the applicant’s criminality, whilst mindful of his shocking background and such signs as did emerge from the evidence. One can hope that he will undergo rehabilitation upon his release.
McCLELLAN CJ at CL: The orders of the Court will be as proposed by Justice Price.

**********

LAST UPDATED: 21 May 2007