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Court of Criminal Appeal 16 May 2007

Saban v Regina

[2007] NSWCCA 139

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING HISTORY OF REPEAT OFFENDING SUBJECTIVE CIRCUMSTANCES OFFENCES ON FORM 1 SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: Saban v Regina [2007] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 16 May 2007
Judge(s): Price J; McClellan CJ at CL; Hidden J

Background

The applicant pleaded guilty in the District Court at Bathurst to aggravated robbery under s 95 of the Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. The offence involved the applicant approaching a man, physically manhandling him, pressing a knife to his chest, threatening to stab him, and stealing his mobile phone. Three further offences were placed on a Form 1 (meaning they were taken into account at sentencing without separate convictions being recorded): one common assault involving a knife and another victim on the same day, one further demand with menaces, and one incident at a K-Mart store.

The sentencing judge, Nield DCJ, imposed a total sentence of six years and nine months, with a non-parole period of four years and nine months. The Judge applied a 25 per cent discount for the utilitarian value of the guilty plea, treated the applicant's lengthy criminal history as an aggravating factor, and emphasised general and personal deterrence.

The applicant sought leave to appeal on the ground that the Judge gave insufficient weight to his difficult personal background and prospects of rehabilitation, rendering the sentence manifestly excessive.

  • Whether the sentencing judge gave insufficient weight to the applicant's subjective circumstances, including a traumatic childhood, alcohol dependency, psychological difficulties, and emerging signs of rehabilitation.
  • Whether the resulting sentence of six years and nine months was manifestly excessive for an aggravated robbery offence committed by a repeat offender.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Price J, with whom McClellan CJ at CL agreed, found that the sentencing judge had not erred in the weight assigned to the applicant's subjective circumstances. The applicant's history included prior sentences of imprisonment in New South Wales and Western Australia for serious offences including robbery, and he was on parole at the time these offences were committed. Those factors legitimately elevated the weight given to retribution, personal deterrence, and community protection.

The Court applied the guideline judgment in R v Henry (1999) 46 NSWLR 346 on armed robbery sentencing. Price J confirmed that the applicant's criminal history and the Form 1 offences justified a sentence above the range identified in Henry. An undiscounted starting point of nine years was found to be within an appropriate range, notwithstanding the applicant's subjective features.

A technical error was identified: the balance of term (parole period) exceeded one-third of the non-parole period, which would ordinarily require a finding of special circumstances. However, because this error favoured the applicant, the Court declined to intervene. Hidden J, agreeing in the result, described the sentence as undoubtedly severe but not outside the bounds legitimately open to the sentencing judge.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A repeat offender's criminal history, including prior imprisonment and offending while on parole, justifies greater weight being placed on retribution, personal deterrence, and community protection at sentencing, potentially pushing a sentence above guideline ranges.
  • Upholding the sentence, the Court of Criminal Appeal confirmed that Form 1 offences taken into account at sentencing are a legitimate factor in justifying a sentence above the range established in R v Henry for armed robbery.
  • Significant subjective circumstances, including a traumatic and violent childhood, alcohol dependency, psychological conditions, and early rehabilitation efforts, do not automatically reduce a sentence to within a lower range where a serious offending history exists.
  • Where a sentencing error favours the applicant (here, a parole period exceeding one-third of the non-parole period without a finding of special circumstances), an appellate court may decline to correct it.
  • No error was established in the sentencing judge's exercise of discretion, reinforcing that appellate intervention for manifest excess requires more than a finding that the sentence was severe.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): s 61 (common assault), s 85, s 95 (robbery in circumstances of aggravation), s 99(1) (demanding property with menaces)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- R v M.A.K; R v M.S.K [2006] NSWCCA 381
- R v McNaughton [2006] NSWCCA 242
- Des Rosiers v R [2006] NSWCCA 16
- Regina v Stankovic [2006] NSWCCA 229