Citation: Regina v Salim SABOUNE [2005] NSWCCA 92
Court: NSW Court of Criminal Appeal
Date: 10 March 2005
Judge(s): Wood CJ at CL, Hislop J, Johnson J
Background
The appellant, a man with an extensive criminal history, pleaded guilty in November 2003 to three charges of break and enter under s 112(1) of the Crimes Act 1900. The offences involved breaking into residential premises and stealing goods with a total value of approximately $19,000. Each offence carried a maximum penalty of 14 years imprisonment.
The appellant had been sentenced in December 2002 for separate similar offences. When the subject offences came to light through DNA matching in 2003, Tupman DCJ in the District Court sentenced him in April 2004 to a combination of fixed terms and a final sentence of three years with a 12-month non-parole period, structured to address the totality principle by treating all relevant offending as a single sentencing exercise.
The appellant appeared unrepresented before the Court of Criminal Appeal, seeking leave to appeal on the basis that the additional sentence was excessive and that immediate parole should be granted.
Legal Issues
- Whether the sentencing judge erred in the discount applied for the guilty plea and the credit given for remorse
- Whether the appellant's mental health condition (drug-induced psychosis) was adequately considered
- Whether the appellant's completion of rehabilitation and vocational courses was properly taken into account
- Whether hardship to the appellant's family warranted a reduction in sentence
- Whether delay between the offences and sentencing was properly addressed
- Whether the overall sentence was manifestly excessive
Decision
On the question of remorse and guilty plea discount, Hislop J noted that no specific evidence of remorse was led at the sentencing hearing, but the guilty plea itself is treated as a manifestation of remorse under established authority. Tupman DCJ had applied a full discount for the pleas, and no error was disclosed.
The appellant's drug-induced psychosis argument failed for want of medical evidence. Her Honour had accepted that heroin addiction was the key to the offending and that the appellant had no memory of committing the offences. Without supporting medical evidence, no error could be established in the manner the sentencing judge treated the addiction.
On family hardship, the court applied the principle that hardship to a prisoner's family is only a mitigating factor where it is extreme and goes well beyond the inevitable consequences of imprisonment. The circumstances here, including a father's illness and a wife's depression, did not meet that threshold, particularly in the absence of medical evidence.
The court found that Tupman DCJ had expressly addressed the delay between offending and sentence, and had structured the sentences by applying a totality analysis, effectively adding only one additional year of custody for the three subject offences. No error appeared in her Honour's reasoning, and the sentence was within the available range.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A guilty plea is accepted as a manifestation of remorse warranting a sentencing discount, even where no separate evidence of remorse is adduced, consistent with the approach in R v Thomson (2000) 49 NSWLR 383.
- In dismissing the appeal, the Court confirmed that appellate interference with sentence requires a demonstrated error of principle, a misapplication of evidence, or a sentence so excessive or inadequate as to manifest such error, applying R v Tait (1979) 46 FLR 386.
- Family hardship only warrants sentencing consideration where it is extreme and substantially exceeds the hardship that inevitably results from imprisonment, as confirmed by reference to R v T (1990) 47 A Crim R 29.
- Claims based on drug-induced mental health conditions or rehabilitation efforts carried little weight where no supporting medical or documentary evidence was placed before the sentencing court.
- Where a sentencing judge expressly addresses delay in prosecution and applies a totality analysis, an appellate court will not disturb the outcome merely because the offender characterises the additional period as excessive.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(1) (break and enter)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11 (drug rehabilitation release)
Cases:
- R v Thomson (2000) 49 NSWLR 383
- R v T (1990) 47 A Crim R 29
- R v Tait (1979) 46 FLR 386