Shaba v R

Background 7His Honour summarised the facts that he found that were consistent with the jury's verdict. They are presently uncontroversial. That summary is contained in paragraphs [6] to [21] of his Honour's remarks on sentence as follows: "[6] Shaba was found guilty by a jury who were in fact considering two charges brought against him. Shaba also faced a trial on a charge of wounding Carlos Sawa's younger brother Laurence. On the second of the two charges, the jury returned a verdict of not guilty. Both charges arose from the same melee. Thus when determining the facts upon which he is to be sentenced for the wounding of Carlos, the fact finding task requires some understanding of why Shaba may have been acquitted of the Laurence wounding. [7] There is no dispute Laurence was wounded. Shaba's defence was that it was not he that caused the wound. The circumstances in which Laurence was wounded were more hectic. Laurence, his father, and supporters had reacted to the earlier wounding of Carlos. There was scope for another person to have wounded Laurence. While self defence was not run by either the Crown or Shaba, it was put by me in respect of the Laurence wounding. [8] While the jury may have regarded Laurence as unreliable around the circumstances of his wounding, it is unlikely that they regarded him as generally unreliable to the circumstances seeding the ultimate melee in Nelson Street. I am satisfied that the jury accepted the evidence of Carlos Sawa. [9] On 25 February 2006 Laurence, then aged fifteen, had attended a cousin's birthday party at a community hall in Fairfield. During the course of that party, word came back to the Sawa family home that there may have been alcohol at the party. Carlos aged twenty-three went to check. He saw his younger brother drinking. It was decided to take him home. Before they could leave, a fight broke out. Neither of the Sawa boys had any reason to be angry at anyone at the party. [10] Carlos, thinking Laurence may have become involved as he (Laurence) was saying his good-byes, investigated. One nineteen-year-old named Sammy jumped on Carlos' back. There was some pushing and shoving. There was an exchange of words. Then the two Sawa boys and their sister left and returned to their home. [11] Fifteen minutes after returning home, Carlos received a call on his mobile phone. He was told to go to the 7-Eleven or 'We will come down to your house'. He told his caller that he would go to the 7-Eleven. [12] Before he went, however, Carlos reported the call to his father, who determined the proper course was to go to the Fairfield Police Station. Carlos, the father and Laurence went in one car, two cousins followed in another. [13] Not far from the Fairfield police station is a reception house. When the Sawas arrived, there was a wedding reception in progress. Parking was at a premium. There were no parking spots near the police station. The nearest was 300 or so metres from it. [14] It seems, however, that enquiries may have been made over the mobile phone by others seeking to locate Carlos Sawa. When he arrived in Nelson Street, an acquaintance told him 'they are looking for you'. Carlos asked, 'Who.' The answer 'Sayed (the older brother of Sammy) and whoever else is with him.' [15] As this conversation was finishing, two vehicles arrived with several persons. They parked so as to block at least one of the Sawa vehicles. Sayed Hirmiz and his younger brother Sammy were in one car, Dilan Shaba was in a second car with others. Sayed Hirmiz gave evidence that he was not there. I am satisfied the jury took a different view. The offence had its origins in events occurring earlier that evening between Sammy Hirmiz and Carlos Sawa. I am satisfied that the jury accepted other Crown evidence establishing that Shaba was in the company of these two men and at least two others. [16] Carlos and Shaba were not associates, but were known to each other. Sayed approached Carlos saying words to the effect quote, 'Didn't you know he was my brother,' and then uttered a threat of some kind. Shaba approached. His hand was concealed beneath clothing. He put one hand on Carlos' left side and with the other hand withdrew a knife concealed in his clothing and plunged it into Carlos Sawa's left flank penetrating through the left kidney. [17] The entry wound was through the left abdominal wall into the left kidney entering from the back and penetrating through the front of that kidney. [18] To this point there were no fights, no confusion, just the earlier remarks from Sayed and the singling out of Carlos by Shaba. When other supporters of Carlos realized what had happened, they immediately responded. In the course of that response, other injuries were incurred by Laurence. The jury by its verdict has determined the Crown has failed to prove Shaba is responsible for them. That finding by the jury must be given full recognition by me. [19] The immediate impact of the wound was to cause internal and external bleeding. Carlos Sawa began to feel dizzy. He was concerned about his brother's injuries, which must have occurred shortly after his own. [20] Carlos Sawa was taken by ambulance from the scene to a nearby hospital. There he was subject to immediate surgery to stop the bleeding and insert a ureter stent. A second surgery procedure was required to short circuit blood that had been travelling from arteries to a vein without passing through the kidney. He has been left with 70% to 80% of normal function in his left kidney. [21] It took three to four months before he was able to straighten his back. During his hospitalisation and recovery, he experienced depression, anxiety, anger, and feelings of helplessness."

Ground 1 8The applicant complains that his Honour erred in forming the view that he "could not" commence the sentence before 18 January 2010 and, as a corollary, that he failed to commence the sentence at some earlier date. At paragraph [96] of his remarks on sentence he said this: "[96] I have determined that the sentence should commence from today. I can do no other. Although he was bail refused, the view the law takes is that that period of time was fully consumed by the sentence imposed by Berman AJ". 9In this last respect it should be observed that previously, on 12 December 2007, Berman AJ had imposed a sentence upon the applicant for the offence of accessory after the fact to murder. His Honour sentenced the applicant to a non-parole period of 1 year, 7 months and 18 days in respect of that offence committed on 9 April 2006. The applicant had surrendered to the police on 24 April 2006: see R v AB [2007] NSWSC 1517. The sentence was backdated to the date of his arrest so that the non-parole period expired on the day that he was sentenced. His Honour noted that the applicant was bail refused on "an unrelated matter", which was the matter that is the subject of the present application to this Court. 10The applicant was granted bail in relation to this matter but was not released for a period of 1 month and 13 days. He was therefore in custody from 12 December 2007 until 24 January 2008 in circumstances solely referable to the matters that came before Nicholson DCJ and for one of which he was sentenced. In his remarks on sentence his Honour noted that the applicant was on bail from 12 December 2007 until the date that he was sentenced on 18 January 2010. The applicant contended that this was wrong as his Honour failed to take account of the fact that the applicant was not released on bail until 24 January 2008. The period of 1 month and 13 days in custody before that occurred was solely referable to the present offence. 11The Crown accepted this submission in the following terms: "17. It would appear that when it came to sentence over two months later his Honour overlooked this period of pre-sentence custody. It is the Crown submission that this Court should intervene to backdate the commencement date of the sentence by one month and thirteen days in accordance with sections 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act 1999. The sentence should be backdated to commence on 6 December 2009, to take into account the total of forty-four days pre-sentence custody." 12Section 47(3) of the Crimes (Sentencing Procedure) Act 1999 is as follows: "(3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates." 13It would appear that his Honour inadvertently failed to take account of the applicant's period in custody that was solely referable to this offence. In my opinion the sentence should be backdated to take account of this period. In this respect I note that it is preferable to backdate the sentence than to reduce it to account for the time served: see, for example, R v Newman and Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 at [26] - [32]; R v Close (1992) 31 NSWLR 743; R v Schodde [2003] NSWCCA 164; (2003) 142 A Crim R 307; Wiggins v R [2010] NSWCCA 30 at [2] - [6].

Ground 2 14In his remarks on sentence his Honour made specific reference to what was said by Berman AJ in R v AB concerning the discount for the applicant's assistance to authorities in those proceedings. In particular, the applicant undertook to give evidence against co-offenders Shamouil and David. His Honour said this at [64]: "[64] In his remarks on sentence Berman AJ noted assistance given by [the applicant] to police investigating the murder of Audisho. His Honour said at '8 ... He surrendered himself to police in company with his then solicitor on 24 April, 2006. On this day he participated in an interview with the police. He was arrested and charged and has remained in custody since that day. The offender later participated in a further interview with police whereby an induced statement was obtained. Following that that there was also an occasion where the offender went with police and drove with them to relevant places, re-tracing his movements on 9 April, 2006... 12 One of the most important factors which I must bear in mind in determining the appropriate sentence to impose upon the offender concerns his assistance to the authorities. The offender has provided assistance in the past to the police by telling them what occurred on the 9 April, 2006 including, as I mentioned before, retracing his steps with them. But it is his assistance in the future which is of most significance. The offender has undertaken to give evidence against both Mr Shambouil and Mr David. A signed undertaking to that effect was tendered to me today. Of course, one of the most important factors in assessing the impact that that assistance will have on the sentence to be imposed concerns the value of that promised assistance. There was no material from a police officer put before me today but the Crown Prosecutor advised me that without evidence from the offender the Crown would have difficulty in obtaining a conviction against Mr Shamouil, the man alleged to have actually done the shooting. 13 The value of the offender's promised assistance is somewhat less in the case of Mr David because of other evidence available against him but there is no doubt that, taken as a whole, the offender's promise of assistance is of considerable value to the authorities. That promise of assistance came fairly early in the piece too, it first being provided to the police on 20 June 2006. As a result the offender has been held in protection and there was evidence before me demonstrating that the conditions of his custody are at present more onerous than the general prison population.' His Honour continued, 14 ...The discount which would be imposed for the utilitarian benefit of that plea is therefore a significant one. I will not separately indicate the discounts I have allowed for the assistance to the authorities and the plea of guilty but will indicate that, taking both of those matters together, the sentence I will impose on the offender is half what it would otherwise have been...'" 15In R v AB , Berman AJ had earlier referred to the applicant when sentencing him in these terms at [29] to [32]: "[29] This is a case where I will also find special circumstances enabling me to extend the period of eligibility for parole at the expense of the non-parole period. There are, however, constraints on the sentence that I can impose. I am not able to discount a sentence because of assistance to the level where the sentence is unreasonably disproportionate to the objective gravity of the offender's conduct and the non-parole period I select must also bear a relationship to what the offender did. It was serious criminal conduct for him, knowing that a young man had just been shot, to assist those who had just done so by driving them from the scene of the crime and taking them to a place of refuge. [30] The offender has been in custody for a period of one year, seven months and eighteen days. Mr Scragg submits in the circumstances of this case that that is a sufficient period of imprisonment or, at the very least, is sufficient as a non-parole period. I accept his latter submission. I do not, however, consider that a head sentence of that length is sufficient. The offender is sentenced as follows: [31] I set a non parole period of one year, seven months and eighteen days to date from 24 April, 2006 and impose a head sentence of two and a half years' imprisonment. The non parole period expires today and so as far as this matter is concerned I order that the offender is to be released to parole forthwith although, as I mentioned, he is currently bail refused on an unrelated matter. [32] I will indicate that in the absence of the undertaking to give assistance in the future, the head sentence would have been one of three and a half years imprisonment." 16It was submitted on behalf of the applicant that his Honour Nicholson DCJ failed to have regard to a practical limitation constraining Berman AJ, as the net effect was a sentence that overlooked the assistance given to authorities by the applicant. His Honour took what the applicant described as "the unusual step" of acknowledging what he inferred could be the applicant's justifiable sense of grievance about the sentence imposed by Berman AJ, although, as his Honour noted, a discount for assistance should normally only attract a discount once and with respect to the instant sentencing proceedings. In short the applicant argued that Berman AJ was mindful to give the applicant a discount for assistance and would, if he could practically have done so, have given him a greater discount. Because Berman AJ was limited by the practicalities of the sentencing exercise that faced him, this meant that the applicant received less than a full recognition for the assistance that he gave. The applicant submitted, in effect, that his Honour Nicholson DCJ was somehow entitled, if not required, to make up the difference in the case before him and that he should have done so. 17The applicant contended that there was nothing in s 47 of the Crimes (Sentencing Procedure) Act that would prevent a sentencing tribunal from having regard to an allowance for assistance that had not previously been taken into account. Moreover, s 23(1) of the Act specifically contemplates the Court taking into account assistance provided in relation to other offences: see below. He argued that even though Berman AJ had taken his assistance into account to some extent, there was scope for it to be considered again and factored into the sentencing exercise that confronted Nicholson DCJ. 18There are in my opinion a number of difficulties with this submission. First, as the applicant acknowledges, Berman AJ took the assistance that he gave or promised into account. The applicant has already been given the benefit of the exercise of a discretion to reduce his sentence in accordance with s 23 of the Crimes (Sentencing Procedure) Act , which is in these relevant terms: " 23 Power to reduce penalties for assistance provided to law enforcement authorities (1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. (2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters: (b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, (g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist, (h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist, (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence, (3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence. (4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must: (a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and (b) state the penalty that it would otherwise have imposed, and (c) where the lesser penalty is being imposed for both reasons-state the amount by which the penalty has been reduced for each reason. (5) ..." 19The factors that a sentencing judge is entitled to consider in this respect are many. It must be assumed that Berman AJ had regard to all of them when he sentenced the applicant. A review of his Honour's reasons does not suggest to me that he would have provided the applicant with a greater degree of recognition for his assistance if he had not been constrained by his view that the applicant had served sufficient time in custody by the time the sentence was passed. Indeed, his Honour's view that the applicant should be released immediately must necessarily have been reached by taking his very assistance to authorities into account. 20Secondly, Berman AJ reduced the applicant's head sentence by 12 months in recognition of this assistance, from 3 years and 6 months to 2 years and 6 months. This is a reduction of approximately 28.5 per cent. It must also be assumed that in reducing the sentence by that proportion his Honour was mindful of the need to ensure, in accordance with s 23(3), that any lesser penalty imposed was not disproportionate to the nature and circumstances of the offence. It does not seem to me that the applicant could have demonstrated any error in Berman AJ's approach had he sought leave to challenge it at the time. I can see no proper basis for him notionally doing so now. 21Thirdly, his Honour Nicholson DCJ appears clearly to have had regard to the unfortunate consequences for the applicant of his offer of assistance in any event, and to have taken them into account when sentencing him. This is reflected in some of his remarks on sentence. This is most apparent at paragraphs [69] to [73] and [94] as follows: "[69] The sentence imposed by Hidden J on David was one of 3 years reduced to 2 years in recognition of a plea of guilty to two offences with a non-parole period of 15 months. In the normal course of events an offender standing for sentence may only receive benefit of any specified act of assistance on one occasion. Should he come for sentence later on a fresh matter, the past assistance that has already been taken into account cannot be used a second time. [70] In this case, however, Shaba would be entitled to entertain what I regard as a justifiable sense of grievance in respect of the credit for assistance he has given to police and his willingness to give evidence to the court. When I raised this matter during sentencing submissions, the Crown did not seek to dissuade me from making appropriate recognition of the assistance although she argued that I could not give the benefit provided by s 23 of the Crimes (Sentencing Procedure) Act 1999. [71] My understanding of her submission is that I could mitigate the penalty otherwise appropriate but not specify any percentage, simply put the assistance as being one of the favourable features on sentencing. [72] There is evidence before the court from Shaba which I accept: (1) That whilst in custody, he went into a protection environment on account of having assisted police and would return to the unit upon re-entering custody. (2) That he has been on bail for 2 years during which time he has been fearful of his safety and that of his family. (3) That his fears are well grounded, not only because of the well recognised assessment of courts of the likelihood of violent response from the criminal milieu in circumstances such as this, but because of specific matters that may constitute examples of attacks upon him... [73] I am satisfied that after his release [to bail] from custody, the aftermath of his assistance has seen him subjected to threats and potential lethal criminal activity. He holds fears for his safety in custody. His time in custody will be more stressful and arduous than had he not given assistance. It is to be remembered that the assistance he gave was against two people who I have assumed to be, from the evidence, members of a gang.

[94] Both gave assistance to authorities. In my view Shaba's assistance was of greater utility." 22It is clear that his Honour was minded somehow to take into account all of these consequences to the applicant that resulted from the assistance he had provided. He did not indicate how or to what extent he did so in arriving at his final view. I note in this last respect that in accordance with s 23(6) of the Act his Honour's failure to comply with the requirements of s 23(4) of the Act concerning the sentence does not invalidate it. 23Finally, and in my view most significantly, the sentence that his Honour imposed does not warrant intervention by this Court. On the contrary, the sentence seems to me, in all of the circumstances of the case, to be somewhat favourable to the applicant, bearing in mind the maximum penalty and applicable standard non-parole period. The attack upon the victim was vicious and unprovoked. His injuries were very serious. The applicant was on conditional liberty at the time. He has not expressed remorse. He is not suffering from any mental health issues. The attack involved the use of a knife about which the Courts have expressed particular abhorrence. The applicant's use of the knife was a feature that specifically aggravated the seriousness of the offence: see R v Deng [2007] NSWCCA 216 at [7]. 24His Honour found special circumstances and allowed a non-parole period of 50 per cent of the total term. That was also very favourable to the applicant. His finding that it was likely that the applicant had prospects of rehabilitation was generous having regard to the lack of any demonstrated remorse. The non-parole period of 3 years is 42 per cent of the standard non-parole period. This reflects a significant degree of leniency. 25Although the second ground of appeal also refers to the sentence imposed upon Mr David, the applicant's submissions do not adumbrate a detailed case based upon principles of parity. Indeed, there is no mention at all of that concept. There is an obvious reason for that. This application deals with the sentence imposed by Nicholson DCJ. Any concerns that the applicant may have entertained about a comparison between the sentence imposed by Berman AJ on him and the sentence imposed by Hidden J on Mr David were concerns relating to Berman AJ's sentence and not the present one. 26Hidden J sentenced Mr David as an accessory after the fact to murder and assault: see R v Shamouil and David [2009] NSWSC 24. The applicant drew particular attention to what his Honour said at [46] to [51] as follows: "[46] Shaba was sentenced by Berman AJ after pleading guilty to that offence. At that time it was the Crown case that both Shamouil and David were involved in the murder, and Shaba's offence was the assistance he afforded to both of them. At that stage of the proceedings it was necessary to protect his identity from publication, and his Honour's remarks were published as R v AB [2007] NSWSC 1517. He was sentenced on the basis that he drove Shamouil and David from the scene after the shooting. He drove Shamouil to his home, a journey of about five minutes, dropping David off in a back street on the way. [47] Shaba is also a member of the Assyrian community. He had a minor criminal record, which Berman AJ ignored for the purpose of sentence. His subjective case was otherwise favourable. Of particular significance was his assistance to the authorities in relation to the murder which, together with his plea of guilty, persuaded his Honour to allow him a 50 per cent reduction of sentence. He had been in custody for almost one year and eight months, and his Honour accepted that that was a sufficient non-parole period in the circumstances. Accordingly, he imposed a sentence of 2 years imprisonment but set a non-parole period which enabled his immediate release. [48] The Crown prosecutor acknowledged that the criminality of Shaba and David as accessories after the fact fell into the lower end of the range. However, he submitted that their culpability was comparable and that I should take the undiscounted sentence of Berman AJ as the starting point in determining the appropriate sentence for David. However, I am persuaded by the argument of senior counsel for David that I should not approach the matter in that way. In my view, David's criminality in disposing of Shamouil's mobile phone and clothing was less than that of Shaba, who drove both offenders from the scene of the crime and delivered Shamouil to the safety of his home. Moreover, Berman AJ was constrained in the leniency he was able to extend to Shaba because of the length of time he had already spent in custody. Clearly, his Honour's sentence was structured in a practical way to ensure that his custody came to an end. This is not to say that the sentence his Honour passed is to be ignored, but the sentence of David calls for a different approach. [49] As with Shamouil, I shall treat this offender's subsequent drug offence as a factor disentitling him to leniency. In other respects he has a favourable subjective case. He also enjoys support from his family and within his community, he is remorseful, and I think that his prospects of rehabilitation are good. His pleas of guilty were late and, like Shamouil, they will earn him a reduction of the overall sentence of roughly 15 per cent. In his case there are special circumstances arising from the need to foster his rehabilitation and because the sentences I pass must be cumulative upon the sentence for the drug offence. Consideration must also be given to totality. [50] Although the offence of common assault did not involve actual violence, I consider that it calls for a short custodial sentence. That sentence will be concurrent with the sentence I pass for the offence of accessory after the fact to murder, in the interests of totality and because the two offences are closely linked. Both sentences will commence on 1 June 2008, that is, immediately upon the expiry of the non-parole period fixed in respect of the drug offence. His period of custody thereafter is fairly referable to the present offences. [51] For the common assault I shall impose a sentence of imprisonment for a fixed term of 6 months. For the offence of accessory after the fact, I would reduce a sentence of 3 years to 2 years in recognition of the plea of guilty. I shall fix a non-parole period of 15 months. That will secure his release on 31 August 2009, whereupon he will be subject to the sanction of parole for a further 15 months." 27There were differences in the degree of criminality between David and the applicant. They were not favourable to the applicant. In any event his Honour Nicholson DCJ adverted to the sentence imposed upon Mr David and its relationship to his sentencing exercise at paragraph [69] of his remarks on sentence referred to earlier. The extent to which his Honour took that matter into account, or the correctness of his having done so, do not arise for consideration here. An application for leave to appeal against a sentence imposed by Nicholson DCJ for malicious wounding inflicting grievous bodily harm does not attract an application of parity principles going to the alleged differences between sentences imposed on the applicant and Mr David for the offences of accessory after the fact to murder imposed by others. 28In my view, for all of these reasons, no lesser sentence is warranted in law.

Orders 29Accordingly, I would make the following orders:

1. Grant leave to appeal.
2. Allow the appeal in part. 3.Order in lieu of the sentence imposed upon the applicant by Nicholson DCJ on 18 January 2010 commencing on that day, that the sentence imposed upon the applicant commence on 5 December 2009.
3. Otherwise confirm his Honour's orders. 30It follows that the applicant's non-parole period will now expire on 4 December 2012 and that the first day upon which he will be entitled to be released on parole is 5 December 2012. The additional term set by his Honour will now expire on 4 December 2015.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2011