SHAABAN v REGINA [2007] NSWCCA 115 | Case summary

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:

(vi) premises considered organised drug premises. 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 in the submissions of the applicant seem to relate more to his complaint about the denial of his parole at or after the parole hearing on 20 December 2006. 9 The current case is yet another example of the vicious circle into which people step when they chose to take a course of conduct that is illegal. In the current circumstances, the applicant says that he embarked upon the use of drugs (together with the abuse of alcohol) in order to self medicate the depression that he suffered following his father's death. The use of drugs and the abuse of alcohol led him to deal in drugs for the purpose of supporting his habits. 10 He was arrested on 21 December 2004 and has been in custody ever since. His arrest came about from a controlled operation by the police in the Mount Druitt area in which police undercover operatives were supplied by the applicant with methylamphetamine with a purity of approximately 19% (the normal street purity being between 3 and 5%). Subsequent supply to undercover operatives occurred on 15 December 2004 and again on 17 December 2004. Admissions were made to the undercover operatives relating to other acts of supply. On 21 December 2004 the undercover operative in question purchased further methylamphetamine and ecstasy tablets, following which the applicant was arrested. 11 The applicant pleaded guilty, which I have already said, which plea has been taken into account by the sentencing judge in the fixing of the sentence imposed. 12 Sentencing is an exercise in the discretion of the judge in which he/she is required to take into account all relevant considerations (and only relevant considerations) in forming the conclusion that is reached. In doing so, a sentencing judge balances the need to protect the community, to deter criminal activity (both by the particular offender and generally within the community), rehabilitation of the offender and community retribution of the criminal offence in question. It is not a purely logical exercise. It is, as stated, an exercise in discretion and an appeal against such an exercise will not be successful unless one of the well known grounds for disturbing an exercise of discretion is established. 13 Reasonable minds may differ on the exact outcome in any sentencing exercise. The only time that the Court of Criminal Appeal (or any appellate court) will interfere with the exercise of such a discretion is in the following circumstances: "It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." ( House v The King (1936) 55 CLR 499 at 505) 14 Whether the error of law or mistake of fact is identifiable or the error arises from a manifest excess in the sentence imposed, it is only where there is error that the Court of Criminal Appeal will intervene. In the present proceedings no error has been displayed. 15 Because the applicant is unrepresented, I examined the remarks on sentencing for errors that may not have been obvious to the applicant. No error is disclosed. All of the relevant matters have been taken into account by her Honour below and only matters that are relevant have been considered. Further, the sentence imposed is a sentence that is within range bearing in mind the discounts that have been applied and the finding of special circumstances. Her Honour found that the special circumstances warranted a more generous ratio between non-parole period and the remainder of sentence than the statute otherwise provides. The assistance given by the applicant while in gaol is not such as would warrant disturbing the sentence imposed by her Honour. The issues of treatment in gaol and the circumstances of the death of his fellow inmate raised in his submissions in this Court are matters for consideration by the Parole Authority, not by the Court of Criminal Appeal at this stage. 16 The other matters of which complaint is made involve issues associated with the denial of benefits during imprisonment and the denial by the Parole Authority of parole. 17 While great attention is paid by judicial officers who are required to sentence to the determination of the correct non-parole period, that period establishes the minimum time during which a prisoner is to remain in gaol. At the conclusion of the non-parole period, a prisoner is first eligible to be granted parole. The grant of parole is governed by the provisions of the Crimes (Administration of Sentences) Act 1999 (NSW) and in particular to the duty imposed upon the Parole Authority by section 135(1) of that Act. The exercise of the duty reposed in the Parole Authority by section 135(1) requires the Parole Authority to take into account a number of matters adumbrated in section 135(2) of the Act. 18 Ultimately the Parole Authority is entitled to grant parole if, and only if, it forms the view that the release of the offender is appropriate in the public interest. In the current circumstances, the applicant has been denied parole, it seems, largely on the basis of his use of illicit drugs while in prison and his failure to behave in a manner that would allow the Parole Authority to have confidence in the appropriateness of his release. No criticism can be made of the Parole Authority for its decision and none is made. The Court of Criminal Appeal cannot on this application, or otherwise, interfere with the exercise of the powers of the Parole Authority. 19 The grant of parole to the prisoner is a matter within the prisoner's own hands. It requires a display of appropriate behaviour in prison. The sentence originally imposed upon the applicant was not imposed in error and discloses no error either identifiable or manifest. In the circumstances, I propose that the following orders be made:

SHAABAN v REGINA

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