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Court of Criminal Appeal 2 February 2009

SALAH, Dror v R

[2009] NSWCCA 2

Homicide
CRIMINAL LAW APPEAL SENTENCING DISCOUNT FOR PLEA MANIFEST EXCESS FINDING OF FACT

Citation: SALAH, Dror v R [2009] NSWCCA 2
Court: NSW Court of Criminal Appeal
Date: 2 February 2009
Judge(s): Bell JA, Rothman J, Price J

Background

The appellant was convicted of manslaughter following his plea of guilty entered on the sixth day of a murder trial. The plea was accepted by the Crown in full satisfaction of the indictment. The basis of the plea was excessive self-defence.

The offence arose from an incident at Bondi Beach on 5 August 2006. Earlier that day, the deceased had punched the appellant, pulled his hair, and threatened to kill him. That evening, the deceased obtained a knife from a nearby cafe and approached the appellant's vehicle. A confrontation followed in which the deceased cut the appellant's brother with the knife and brandished the knife at the appellant. The appellant struck the deceased with a metal vacuum cleaner pole and then stabbed him six times after seizing the knife. Two of the stab wounds proved fatal.

Johnson J in the Supreme Court sentenced the appellant to a non-parole period of 5 years and 9 months with a balance of term of 3 further years. The appellant sought leave to appeal, pressing eight grounds.

  • Whether the sentencing judge applied an inadequate discount (10%) for the late guilty plea
  • Whether the sentencing judge erred in finding that the appellant had heard a warning that the deceased was armed with a knife before the fatal confrontation
  • Whether the sentencing judge erred in characterising the offence as objectively serious, given the self-defence context
  • Whether the sentencing judge erred in finding that the appellant had not demonstrated contrition
  • Whether the sentencing judge gave insufficient weight to the provocative conduct of the deceased
  • Whether the sentencing judge gave insufficient allowance for the time the appellant spent in protective custody
  • Whether the sentencing judge erred in failing to give reasons for finding special circumstances and in the procedural ordering of the sentence components (raising compliance with s 44 of the Crimes (Sentencing Procedure) Act 1999)
  • Whether the sentence was manifestly excessive

Decision

Plea discount: The Court found no error in the 10% discount applied for the guilty plea. The plea was entered on the sixth day of trial, after most witnesses had already given evidence. The utilitarian value of such a late plea was significantly reduced, and a discount in the range of 10% to 15% was appropriate in those circumstances.

Finding of fact regarding the warning: The Court upheld the sentencing judge's finding that the appellant had heard warnings that the deceased was armed with a knife. The finding was open on the evidence, including testimony from witnesses and the agreed statement of facts. The Court of Criminal Appeal noted that it does not lightly disturb findings of fact made by a sentencing judge, particularly where the finding is supported by evidence.

Objective seriousness, contrition, provocation, and protective custody: The Court rejected each of these grounds. The offence remained objectively serious notwithstanding the self-defence context: the appellant continued to stab the deceased after disarming him, inflicting six wounds. The sentencing judge was entitled on the evidence to conclude that genuine contrition had not been demonstrated. The provocative conduct of the deceased had been taken into account, as had the time spent in protective custody. No error was established in the weight attributed to any of these factors.

Manifest excess and s 44 compliance: The Court found the sentence was within the available range and declined to interfere on the ground of manifest excess. However, it identified a procedural error: the sentencing judge had not imposed the sentence in accordance with s 44 of the Crimes (Sentencing Procedure) Act 1999, which requires the non-parole period to be set first. The Court allowed the appeal only to the extent necessary to correct this, re-imposing the same substantive sentence in the proper form.

Orders Made

  • Leave to appeal granted
  • Appeal allowed only to the extent necessary to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Original sentence quashed and replaced with: a non-parole period of 5 years and 9 months commencing 7 August 2006 and expiring 6 May 2012, with a balance of term of 3 years expiring 6 May 2015; first eligibility for parole on 6 May 2012
  • Appeal otherwise dismissed

Key Takeaways

  • A guilty plea entered on the sixth day of trial, after most witnesses have testified, warrants only a modest discount. The Court of Criminal Appeal confirmed that 10% to 15% falls within the appropriate range in such circumstances.
  • Where a plea of manslaughter is based on excessive self-defence, the offence may still be characterised as objectively serious if the fatal conduct extended beyond what was necessary to defend against the threat, including multiple stab wounds inflicted after disarming the deceased.
  • Findings of fact made by a sentencing judge will not readily be disturbed on appeal, provided they are supported by evidence, even where there is some uncertainty in the underlying material.
  • Sufficient allowance for provocation and time in protective custody does not require a specified or formulaic reduction; the Court found that appropriate weight had been given to those factors without appellate intervention being warranted.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, the non-parole period must be fixed before the balance of the term. A failure to follow this procedure required re-sentencing, even where the substantive length of the sentence was otherwise unimpeachable.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Ahmad [2006] NSWCCA 177
- R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported)
- R v Dodd (1991) 57 A Crim R 349
- R v Edwards (1996) 90 A Crim R 510
- R v Harmouche [2005] NSWCCA 398; (2005) 158 A Crim R 357
- R v Hill (1981) 3 A Crim R 397
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104
- R v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168