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Court of Criminal Appeal 17 September 1999

R v Salameh

[1999] NSWCCA 300

HomicideTheft & propertyFirearms & weapons
CRIMINAL LAW APPEALS SENTENCING APPEAL REDETERMINATION OF LIFE SENTENCE PRINCIPLE OF TOTALITY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: R v Salameh [1999] NSWCCA 300
Court: New South Wales Court of Criminal Appeal
Date: 17 September 1999
Judge(s): Wood CJ at CL; Newman J; Foster AJ

Background

The applicant had been convicted of murder following an armed robbery at a jewellery shop in May 1987. During the robbery, in which he and a co-offender were each armed with a loaded, pump-action shotgun, the applicant's weapon discharged into the victim's chest at close range, killing him almost instantly. He was originally sentenced to life imprisonment, backdated to his date of arrest on 18 July 1987.

On redetermination under section 13A of the Sentencing Act 1989, the primary judge replaced the life sentence with a minimum term of twenty-three years' penal servitude and an additional term for the remainder of the applicant's natural life. The applicant sought leave to appeal that redetermined sentence to the Court of Criminal Appeal.

The applicant's criminal history was extensive. In addition to the murder conviction, he had been sentenced for a series of offences committed before and after the murder, including armed robbery, possession of an unlicensed pistol, being armed with intent, escape from lawful custody, and further robbery. Several of those sentences were running concurrently with the murder sentence.

  • Whether the sentencing judge properly applied the principle of totality when redetermining the life sentence, given the existence of concurrent sentences imposed for other offences both before and after the murder
  • Whether the redetermined sentence, comprising a twenty-three year minimum term plus an additional term for the remainder of natural life, was manifestly excessive

Decision

On the totality argument, the Court found no error in the primary judge's approach. The sentencing judge had expressly stated that the principle of totality applied not only to the minimum term but also to the additional term. The Court accepted that the redetermination exercise was complicated by the statutory requirement under section 13A(5) to backdate the murder sentence, which prevented accumulation on other sentences. The sentencing judge was nonetheless required to account for the full range of concurrent sentences in arriving at a result that reflected the totality of the applicant's criminality without double punishment.

The Court held that even approaching the totality question afresh, the sentence imposed was not manifestly excessive. It enumerated the full catalogue of offending, which included murder, multiple armed robberies, four counts of larceny of a motor vehicle, possession of firearms and means of disguise, escape, and further offences committed while on bail. When set against that history and the applicant's subjective circumstances, including his longstanding non-cooperation with authorities, limited rehabilitation, and assessed danger to the community, the Court found the sentence well within range.

The Court also rejected any suggestion that a felony murder conviction carries lesser objective seriousness than murder involving specific intent, citing a prior decision of Gleeson CJ in Mills. The primary judge's characterisation of the offence as involving the highest objective criminality was not challenged and was upheld without qualification.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the principle of totality applies to both the minimum term and the additional term when a life sentence is redetermined under section 13A of the Sentencing Act 1989.
  • Under section 13A(5), a redetermined sentence must be backdated to the date of first remand, which prevents accumulation on other sentences; the sentencing court must instead account for concurrent sentences by calibrating the redetermined sentence to avoid double punishment while reflecting the totality of criminality.
  • Felony murder carries no lesser objective seriousness than murder with specific intent; the Court affirmed that framing a killing as felony murder does not itself reduce the gravity of the offending.
  • No error was established in the primary judge's application of totality, and the Court confirmed it would have reached the same conclusion had it approached the question independently.
  • In dismissing the appeal, the Court treated the sheer volume and seriousness of the applicant's offending as, in itself, sufficient to defeat a manifest excess argument.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 13A (redetermination of life sentences), s 13A(5) (backdating requirement)

Cases:
- Mills (Court of Criminal Appeal, 3 April 1995, Gleeson CJ) (felony murder not of lesser seriousness than specific intent murder)
- Pearce (cited in relation to the totality principle in concurrent sentencing)