Regina v Sabelgunst [2001] NSWCCA 408

New South Wales Court of Criminal Appeal

CITATION : Regina v Sabelgunst [2001] NSWCCA 408 FILE NUMBER(S) : CCA 60286/01 HEARING DATE(S) : Monday 8 October 2001 JUDGMENT DATE : 8 October 2001

PARTIES : Regina v Russell Sabelgunst JUDGMENT OF : Grove J at 1; Howie J at 7

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/3033 LOWER COURT JUDICIAL Sides DCJ OFFICER :

COUNSEL : P.G. Berman SC (Crown) In person (Applicant) SOLICITORS : S.E. O'Connor (Crown) CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - NO SPECIAL MATTER OF PRINCIPLE DECISION : APPEAL DISMISSED

IN THE COURT OF CRIMINAL APPEAL 60286/01 GROVE J HOWIE J

Monday 8 October 2001 REGINA v RUSSELL SABELGUNST

Judgment

1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed upon the applicant by his Honour Judge Sides in the District Court at Campbelltown. The applicant appeared upon indictment charging four separate offences. In short his Honour imposed concurrent sentences of 18 months fixed terms in respect of charges of breaking, entering and stealing, taking and driving a conveyance and malicious damage by fire. The first count in the indictment, which was manifestly the most serious charged, was robbery, and on that offence the learned judge imposed a sentence of 5 years imprisonment cumulative upon the fixed term which I have mentioned and he set a non-parole period of 2 years 3 months, thus rendering the applicant eligible for parole from the earliest date at 27 May 2004. 2 The applicant has represented himself before this Court. It was indicated to him, and I confirm, that if the Court was minded to grant him leave to appeal against sentence then any necessary extension of time would be granted. In response to the Registrar's direction the applicant has set out a number of matters in a letter dated 3 September 2001. It is appropriate to move to those matters without recapitulating the facts of the offences which are adequately set out in the remarks on sentence by the learned judge in the District Court. It should be observed in passing that on the third count of the indictment some 12 further offences were taken into account on a schedule. All of the matters which are set out in the letter of submissions received from the applicant relate to matters which were known at the time of sentence. These can be summarised by noting that the applicant has referred to the circumstances that his natural father left his mother before he was born and that he was raised in a dysfunctional family. He has explained that he was, himself, sexually abused at the age of 14 and commenced to use drugs at a young age. He said: "I ended up with a habit and needing drugs to feel normal in my life and it became out of control and I couldn't keep a job and money became a problem so I had to break the law by stealing to get money to feel normal." 3 The applicant has, before this Court today, repeated orally the assurance contained in his letter that he is anxious to have a chance to demonstrate to others that he can lead a law-abiding life. It is apparent from the content of that letter and the applicant's remarks today that he does not possess a full appreciation of the nature and jurisdiction of this Court, which is what is described as a court of error in distinction from being a court of review. It is not open to this Court simply to reassess matters which were available to be considered at first instance and substitute any sentence which this court might feel it would have imposed in substitution for that already indicated in the District Court. 4 There is no error detectable in the proceedings below. There are a number of other matters adverted to by the applicant including an assertion that he has been bashed and almost raped whilst in gaol. He is only 20 years of age. It is not open to this Court to investigate matters subsequent to sentence for the purposes of detecting asserted error below. Those sorts of matters can be looked at but only if there is some basis upon which this court should proceed to resentence. 5 The applicant appears today as a young man of sincerity. It is to be hoped that he is able to fulfil the assurance which he has offered to the Court. Regrettably, however, as I have said, it is necessary for there to be circumstances which lawfully trigger the exercise of jurisdiction by this Court and an examination of the papers reveals none to my mind. 6 In those circumstances I would grant an extension of time for leave to appeal, grant leave to appeal but dismiss the appeal. 7 HOWIE J: The sentence imposed upon the applicant no doubt appears to him to be a lengthy one in light of his young age and the fact that he will have to serve until 27 May 2004 before becoming eligible for parole. However, as the presiding judge indicated there is no error at all apparent in the remarks of the sentencing judge and in my view the sentence imposed, in light of the seriousness of the criminal conduct of the applicant, was well within the sentencing judge's discretion. In those circumstances, whilst one feels some sympathy for the applicant looking at such a long sentence at such a young age and with his background it is quite impossible for this court to interfere in any way with the sentence imposed. Therefore, I agree with the orders of the presiding judge. 8 GROVE J: The orders of the Court will be, therefore, as I have proposed. **********