Shaaban v Regina - [2007] NSWCCA 115

New South Wales
Court of Criminal Appeal

CITATION: SHAABAN v REGINA [2007] NSWCCA 115

HEARING DATE(S): 18/04/07

JUDGMENT OF: McClellan CJ at CL at 20; Hidden J at 21; Rothman J at 2

EX TEMPORE JUDGMENT DATE: 18 April 2007

DECISION: (a) leave to appeal be granted; (b) appeal be dismissed.

CATCHWORDS: CRIMINAL LAW - APPEAL - SENTENCE APPEAL - no identifiable error - no manifest error - no basis for intervention of court.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 (NSW)

CASES CITED: House v The King (1936) 55 CLR 499

PARTIES: Adam SHAABAN (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2007/32

COUNSEL: Applicant: Self Represented
Respondent: R. Herps

SOLICITORS: Applicant; Self Represented
Respondent: S.Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/1132

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 11/04/06

2007/32

McCLELLAN CJ at CL
HIDDEN J
ROTHMAN J
18 APRIL 2007

Adam SHAABAN v REGINA

EX TEMPORE Judgment

1 McCLELLAN CJ at CL: I will ask Rothman J to deliver the first judgment.

2 ROTHMAN J: The applicant, Adam Shaaban, seeks leave to appeal against the sentence imposed upon him by her Honour Judge English on 11 April 2006.

3 The applicant was charged with ongoing supply of prohibited drug, namely, methylamphetamine and ecstasy, the date of offence being between 8 December 2004 and 21 December 2004, contrary to section 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for such an offence is 3,500 penalty units or imprisonment for twenty years, or both.

4 The applicant pleaded guilty before the Local Court and adhered to that plea of guilty before the District Court. In the course of the sentencing, the applicant sought to take into account six further offences in a Form 1 being the following:

(i) supply prohibited drug, ecstacy;

(ii) possess prohibited drug, cannabis;

(iii) possess prohibited drug, methylamphetamine;

(iv) goods in custody (money);

(v) goods in custody (money); and

5 Taking into account the matters in the Form 1, her Honour sentenced the applicant to a non-parole period of two years’ imprisonment commencing 21 December 2004 and expiring on 20 December 2006 with an overall term of four years commencing 21 December 2004 and expiring on 20 December 2008.

6 The applicant, who is self represented, raises grounds which, in essence, are that her Honour’s sentence was manifestly excessive. He raises issues associated with the subjective circumstances under which he came to be involved in these offences and the subjective circumstances associated with the conditions of his imprisonment. Further, he relies upon assistance to authorities said to have been given in relation to offences other than the ones with which he was charged.

7 There is no doubt that information has been given to police. That information was information already known to the police, but at the time it was supplied, the applicant would not have known that fact.

8 Some of the aspects raised…

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 Shaaban v Regina

Details

AGLC: Shaaban v Regina [2007] NSWCCA 115
Case: [2007] NSWCCA 115
Decision Date: 18 April 2007

CaseChat Overview and Summary

In the matter of Shaaban against Regina, the appeal against sentence was considered by the court. The appellant, Shaaban, had been sentenced to a term of imprisonment following a conviction for various criminal offences. The primary issue before the court was whether the sentence imposed by the trial judge was so excessive or disproportionate as to warrant intervention by the appellate court. The court was required to determine if the trial judge had made an identifiable error or a manifest error in the sentencing process.

The court reviewed the trial judge's sentencing remarks and the principles applied in determining the appropriate sentence. The appeal court noted that the trial judge had carefully considered the circumstances of the case, the nature of the offences, and the appellant's background. The court held that there was no identifiable error or manifest injustice in the sentence imposed, and the trial judge had exercised their discretion in a manner consistent with the law. The appellate court found no basis for intervention, as the sentence was within the range of penalties appropriate for the offences committed.

The court concluded that the appeal against sentence should be dismissed, and no order for a new sentencing hearing would be made. The court acknowledged the gravity of the offences and the impact on the victims but found no grounds to interfere with the trial judge's determination. The appellant's sentence of imprisonment, as determined by the trial judge, was upheld by the court.

Orders