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Court of Criminal Appeal 18 April 2007

SHAABAN v REGINA

[2007] NSWCCA 115

Drugs
CRIMINAL LAW APPEAL SENTENCE APPEAL NO IDENTIFIABLE ERROR NO MANIFEST ERROR NO BASIS FOR INTERVENTION OF COURT.

Citation: Shaaban v Regina [2007] NSWCCA 115
Court: NSW Court of Criminal Appeal
Date: 18 April 2007
Judge(s): McClellan CJ at CL, Hidden J, Rothman J

Background

The applicant pleaded guilty in the District Court to ongoing supply of prohibited drugs, specifically methylamphetamine and ecstasy, contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The offending arose from a police controlled operation in the Mount Druitt area, during which undercover operatives purchased methylamphetamine of notably high purity from the applicant on multiple occasions in December 2004. Six further offences, including additional drug supply and possession charges, were taken into account on a Form 1 at sentencing.

District Court Judge English sentenced the applicant to a non-parole period of two years, commencing 21 December 2004, with an overall term of four years. Her Honour found special circumstances, which justified a more generous ratio between the non-parole period and the balance of the sentence than the statute ordinarily requires.

The applicant, who appeared unrepresented in the Court of Criminal Appeal, sought leave to appeal on the basis that the sentence was manifestly excessive. He also raised subjective factors, including his use of drugs and alcohol to self-medicate grief following his father's death, and his claimed assistance to authorities while in custody.

  • Whether the sentence imposed by the District Court was manifestly excessive
  • Whether any identifiable error existed in the sentencing judge's exercise of discretion
  • Whether assistance provided to authorities while in custody warranted a reduction in sentence
  • Whether the Court of Criminal Appeal had any power to intervene in the Parole Authority's refusal of parole

Decision

Rothman J, with whom McClellan CJ at CL and Hidden J agreed, applied the well-established principle from House v The King (1936) 55 CLR 499, which provides that an appellate court may only disturb a sentencing discretion where error is demonstrated. That error may be identifiable, such as reliance on a wrong principle or irrelevant consideration, or it may manifest from a sentence that is so unreasonable or plainly unjust that error can be inferred.

Because the applicant was unrepresented, Rothman J independently examined the sentencing remarks for any error that the applicant may not have identified himself. No error was found. The sentencing judge had considered all relevant matters and only relevant matters, and the sentence fell within the available range after applying appropriate discounts and accounting for the special circumstances finding.

The assistance the applicant provided to authorities while in gaol did not rise to a level warranting interference with the sentence. The court also noted that several complaints raised by the applicant, including his treatment in gaol and the death of a fellow inmate, were matters properly directed to the Parole Authority rather than to the Court of Criminal Appeal.

The Court was unequivocal that it had no power to intervene in the Parole Authority's refusal of parole. Parole had been refused largely because of the applicant's continued use of illicit drugs in prison and his failure to demonstrate behaviour that would give the Parole Authority confidence in releasing him. The Court noted no criticism of the Parole Authority's decision.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No identifiable or manifest error was established in the sentencing discretion, and the Court of Criminal Appeal therefore had no basis to intervene.
  • Where an applicant is unrepresented, the Court of Criminal Appeal may independently examine sentencing remarks for errors the applicant may not have articulated, though this did not alter the outcome here.
  • Assistance provided to authorities while in custody will not automatically warrant a sentence reduction; its weight depends on the circumstances, including whether the information was already known to police.
  • The Court of Criminal Appeal has no jurisdiction to review or interfere with decisions of the Parole Authority; complaints about parole refusal must be directed to that body.
  • Under House v The King, appellate interference with a sentencing discretion requires demonstrated error, whether identifiable in principle or manifest from the result, and the mere fact that reasonable minds might differ on the appropriate sentence is not sufficient.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 135(1) and s 135(2)

Cases:
- House v The King (1936) 55 CLR 499