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District Court 6 September 2019

R v Saliba

[2019] NSWDC 519

Assault & violencePublic order & justice offences

Citation: R v Saliba [2019] NSWDC 519
Court: District Court of New South Wales
Date: 6 September 2019
Judge: Grant DCJ

Background

The offender was charged with detaining a person without consent and with intent to obtain an advantage, in circumstances of aggravation, contrary to section 86(3) of the Crimes Act 1900. The offence occurred in the early hours of 18 January 2012 in Prairiewood. The offender was part of a group of five who believed the victim owed money connected to drug supply.

The group located the victim's car in a cul-de-sac, surrounded it, broke the window, and dragged the victim out. He was assaulted, forced into the boot of a Ford Territory, and driven to a house where he was further assaulted before being released. The entire episode turned out to be a case of mistaken identity.

The Crown ran a circumstantial case. Key evidence included the offender's palm prints found on the victim's car, witness statements from three men connected to the group, a triple-zero call from an anonymous female, and telephone records linking the offender to the ringleader. The jury found the offender guilty on 17 June 2019. The judgment before the court concerned sentencing.

  • How serious was this offence within the range of offences under section 86(3) of the Crimes Act 1900?
  • What mitigating weight, if any, should be given to the substantial delay between the offence (January 2012) and sentencing (September 2019)?
  • Whether disparity with the sentence imposed on the co-offender (the ringleader) should inform the sentence.
  • Whether special circumstances existed to justify extending the parole period beyond the statutory norm.

Decision

Grant DCJ assessed the offence as a serious example of its type. It involved pre-planning, a group of five offenders acting together, actual bodily harm to the victim, and detention that extended beyond the initial assault to include further violence at a private address. The court noted that the offender was an active participant throughout: he drove the vehicle to find the victim, his palm prints were on the car, he drove the victim to the house, and he participated in the continued assault there. The maximum penalty of 25 years was treated as an important benchmark, though the court did not aim for it.

The court addressed disparity by reference to the sentence imposed on the ringleader, Mohammed Hussein, who had been dealt with separately in June 2018. The court considered the offender's role relative to Hussein's and ensured the sentences were not disproportionate in a manner that would produce a justifiable sense of grievance.

On delay, the court gave the factor substantial weight. The offence occurred in January 2012, the offender was arrested in August 2013, and sentencing did not occur until September 2019, more than seven years after the offence. The court found the delay was not the offender's fault. Drawing on Mill v The Queen, R v Todd, and Sabra v Regina, the court held that sentencing for a stale crime called for flexibility and a measure of leniency, with fairness to the offender playing a dominant role. The court also applied the principle from R v Moon that where delay is lengthy and the offender has rehabilitated, the fact of imprisonment rather than its length becomes the primary vehicle for punishment and denunciation.

The court found good prospects of rehabilitation, noting the offender was 31, had no relevant criminal history, had maintained full-time employment since leaving school, and had demonstrated self-rehabilitation over the intervening years. Special circumstances were found on account of his age, his status as a first-time prisoner, and the need for supervised reintegration.

Orders Made

  • The offender is sentenced to four years (48 months) imprisonment with a non-parole period of two and a half years (30 months).
  • Sentence commences 12 June 2019.
  • Head sentence expires 11 June 2023.
  • Non-parole period expires 11 December 2021, at which point the offender is eligible for release on parole.

Key Takeaways

  • A conviction under section 86(3) of the Crimes Act 1900 for detaining a person in company with actual bodily harm carries a maximum of 25 years, which the District Court confirmed serves as an important guidepost in calibrating a sentence, without being the target.

  • Substantial, unexplained delay between the commission of an offence and sentencing can, in accordance with Mill v The Queen (1988) 166 CLR 59 and R v Todd (1982) 2 NSWLR 517, justify a sentencing court extending an "undue degree of leniency" where the offender has not caused the delay and has self-rehabilitated in the interim.

  • Where delay is lengthy and rehabilitation is established, R v Moon [2000] NSWCCA 534 supports the proposition that the fact of imprisonment, rather than its duration, bears the primary weight of punishment and denunciation.

  • The court treated the offender's active role in the joint criminal enterprise as a significant aggravating feature, distinguishing mere presence from driving the vehicle, physically participating in the assault, and assaulting the victim again at a second location.

  • Special circumstances within the meaning of the sentencing legislation were found to exist where an offender is a first-time prisoner of relatively young age who requires extended supervision for reintegration into the community.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(3)

Cases
- Mill v The Queen (1988) 166 CLR 59
- R v Moon [2000] NSWCCA 534
- R v Newell [2004] NSWCCA 183
- R v Todd (1982) 2 NSWLR 517
- Sabra v Regina [2015] NSWCCA 38