Citation: R v Al Saleh [2019] NSWDC 465
Court: District Court of New South Wales
Date: 16 July 2019
Judge: M L Williams SC DCJ
Background
The offender was a Lebanese-born civil construction business operator who had successfully won a tender for a $940,000 contract, beating a rival company. The rival's associate subsequently threatened the offender, including threats to shoot up his home, and arranged a meeting at a cul-de-sac in Bardwell Valley where the offender found himself confronted by a group of at least six men, one of whom gestured as if armed.
The offender fled by vehicle and was pursued for approximately seven kilometres before firing five rounds from a semi-automatic pistol out of his car window at the pursuing vehicle in Jackson Drive, Mascot. Two rounds struck the car. A woman with a young child was visible nearby, approximately 30 to 40 metres from the shooting.
The offender pleaded guilty to firing a firearm in a manner likely to injure a person or property under s 93G(1)(c) of the Crimes Act 1900, and to possessing ammunition without a licence under s 65(3) of the Firearms Act 1996.
Legal Issues
- What was the objective seriousness of the offending, and where did it sit in the range for offences of this type?
- What weight should be given to the mitigating factors, including the offender's complex chronic PTSD, the provocation and duress he experienced, and his plea of guilty?
- What aggravating factors applied, and how did they affect the sentence?
- Whether special circumstances existed that warranted a non-parole period shorter than the statutory default ratio.
- What penalty was appropriate for the ammunition possession offence?
Decision
The District Court assessed the offending as mid-range in objective seriousness. Discharging a firearm in a residential neighbourhood, where innocent bystanders could easily have been struck, was characterised as extremely serious conduct warranting severe punishment and denunciation. The presence of a child in the immediate vicinity and the offender's prior criminal record were accepted as aggravating factors under the Crimes (Sentencing Procedure) Act 1999.
The court accepted the psychologist's diagnosis of complex chronic PTSD, which had been reactivated in the week before the offending. Drawing on the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, the court found that the reactivated PTSD contributed materially to the commission of the offence, that the offender's moral culpability was somewhat reduced, and that the significance of both general and specific deterrence was accordingly diminished. The court also took into account the provocation and duress arising from the threats and the confrontation at the cul-de-sac, as well as the offender's misguided belief he was acting to protect his family.
Further mitigating factors included the guilty plea, genuine remorse, good prospects of rehabilitation, and the fact that the conduct was not part of a planned or organised criminal enterprise. The court also considered the impact of the offender's incarceration on his wife and children, not as exceptional hardship but as a strong mitigating factor. These considerations collectively supported a sentence at the lower end of the mid-range.
Special circumstances were found on three bases: this was the offender's first period of full-time custody; his ongoing PTSD meant he would benefit from an extended period of supervised parole; and his rehabilitation prospects were assessed as good. This finding justified a non-parole period shorter than the standard ratio. The ammunition possession offence was dealt with by conviction under s 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty.
Orders Made
- Count 1 (Fire firearm in manner likely to injure person or property, s 93G(1)(c) Crimes Act 1900): Convicted. Sentence of imprisonment of 3 years and 3 months, commencing 10 March 2018 and expiring 9 June 2021. Non-parole period of 19 months, expiring 9 October 2019.
- Count 2 (Possess ammunition without licence, s 65(3) Firearms Act 1996): Convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. No further penalty imposed.
- Special circumstances found.
Key Takeaways
- A diagnosis of complex chronic PTSD that materially contributed to the commission of an offence can reduce an offender's moral culpability and diminish the weight given to general and specific deterrence, consistent with the principles articulated in DPP (Cth) v De La Rosa.
- Provocation and duress falling short of a complete defence may nonetheless influence the assessment of objective seriousness and moral culpability, particularly where the offender acted from a misguided belief in the need to protect family members.
- Discharging a loaded firearm on a residential street in circumstances where bystanders, including children, could have been struck remained mid-range offending despite the mitigating factors, reflecting the legislature's and community's view of such conduct as extremely serious.
- Special circumstances justifying a reduced non-parole period ratio may be established by the combination of first-time custody, continuing mental illness requiring post-release supervision, and strong rehabilitation prospects.
- Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for a secondary offence while imposing no further penalty, which the District Court applied here to the ammunition possession charge.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 93G(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 10A
- Firearms Act 1996 (NSW), s 65(3)
Cases
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Imbornone v R [2017] NSWCCA 144
- McDowall [2019] NSWCCA 29
- Prowse v R [2017] NSWCCA 68
- R v Cahill [2004] NSWCCA 77
- R v Qutami (2001) 127 A Crim R 369
- Stanford v R [2007] NSWCCA 73
- Sumrein v R [2019] NSWCCA 83
- Thalari v R [2009] NSWCCA 170