AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 31 July 2020

R v Al-Salmani

[2020] NSWDC 412

HomicideTraffic & driving
SENTENCING REASONS FOR JUDG MENT THREE DECEASED TOTALITY SPECIAL CIRCUMSTANCES AGGREGATE SENTENCE.

Citation: R v Al-Salmani [2020] NSWDC 412
Court: District Court of New South Wales
Date: 31 July 2020
Judge: O'Brien AM DCJ

Background

Following a six-week jury trial at the District Court at Campbelltown, the offender was convicted on 20 December 2019 of three counts of aggravated dangerous driving causing death under s 52A(2) of the Crimes Act 1900. Each offence carries a maximum penalty of 14 years imprisonment. The aggravating circumstance, accepted by the jury beyond reasonable doubt, was that the offender was travelling at a speed exceeding the applicable limit by more than 45 km/h.

The three people killed on 18 January 2017 were an elderly couple and their carer, all travelling on Cabramatta Road West in Western Sydney. The court noted at the outset that all three were entirely innocent road users going about their ordinary business. The offender was in a relationship with his passenger, Dalia Olwan, and the two had been travelling to an insurance appointment for which they were running late after sleeping in.

The Crown alleged the offender drove aggressively, sped extensively, weaved through traffic, and was impaired by methylamphetamine. The defence disputed several of those factual propositions, meaning the sentencing court had to resolve the contested facts before imposing sentence.

  • What facts, consistent with the jury's verdict, could be found beyond reasonable doubt for the purpose of sentencing?
  • What was the offender's speed and manner of driving in the period leading up to the collision?
  • Whether the offender was affected by methylamphetamine at the time of the crash
  • Whether the passenger, Ms Olwan, contributed to the crash by activating the handbrake without warning, or by distracting the offender
  • How to apply the totality principle when sentencing for three separate offences arising from a single course of conduct
  • Whether special circumstances existed to vary the statutory ratio of non-parole period to total sentence
  • Whether an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate

Decision

The court worked through each contested factual issue applying the principles confirmed in Cheung v The Queen (2001) 209 CLR 1 and R v Isaacs (1997) 41 NSWLR 374. Under those principles, the sentencing judge must find facts consistently with the jury's verdict, must be satisfied of adverse findings beyond reasonable doubt, and must resolve any reasonable doubt in the offender's favour. The judge could not, however, be required to adopt whichever view of the facts was most favourable to the offender where the evidence permitted a more adverse finding to be made to the requisite standard.

Eyewitness evidence from six motorists travelling in the same direction as the offender established that he was speeding and weaving aggressively through traffic on Cabramatta Road West in the moments before impact. The court found that the speeding itself supported a finding of aggressive driving. The exact speed at the moment of impact was uncertain, but the jury had already accepted the offender exceeded the limit by more than 45 km/h. The court addressed, and rejected on the evidence, the defence contentions that Ms Olwan had activated the handbrake or otherwise caused or contributed to the crash.

General deterrence was identified as the primary sentencing purpose for offences of this type, although all the purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 were engaged. The court applied the totality principle with care, observing that the principle cannot be used to suggest any discount is available for committing multiple offences. It also noted that an aggregate sentence under s 53A was well suited to offending that arose from a single course of conduct.

The court set indicative sentences of 5 years and 6 months imprisonment for each individual count, then imposed an aggregate term. The aggregate was structured to reflect the full criminality of the offending without resulting in a crushing sentence disproportionate to the offender's circumstances.

Orders Made

  • The offender was convicted on counts 1, 3 and 5.
  • Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence of imprisonment was imposed comprising a total term of 12 years and a non-parole period of 8 years, commencing 21 January 2017.
  • The offender will be eligible for release on parole on 20 January 2025.
  • The sentence will expire on 20 January 2029.
  • The offender was disqualified from holding or obtaining a driver licence for the automatic period prescribed by the Road Transport legislation.

Key Takeaways

  • Following a jury trial, a sentencing judge determines the facts for the purpose of sentence independently of the jury, provided those findings are consistent with the verdict and are established beyond reasonable doubt, as confirmed in Cheung v The Queen and R v Isaacs.
  • Where parties cannot agree on the facts for sentencing purposes, the court resolves the dispute, resolving any reasonable doubt in the offender's favour, but is not obliged to adopt the most favourable view of the facts where the evidence supports a more adverse finding to the requisite standard.
  • General deterrence is the primary sentencing objective in cases of aggravated dangerous driving causing death, though all purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 remain relevant.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 is a suitable mechanism where multiple offences arise from a single course of conduct, and the totality principle must be applied without suggesting any discount for the commission of multiple offences.
  • Indicative sentences of 5 years and 6 months per count, producing an aggregate of 12 years total with an 8-year non-parole period, reflected the court's balancing of objective seriousness, the three deaths caused, and the applicable sentencing purposes.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 52A(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Cheung v The Queen (2001) 209 CLR 1
- Conte v R [2018] NSWCCA 209
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Gavin v R [2013] NSWCCA 99
- Gillett v R [2006] NSWCCA 37
- Gonzalez v R [2006] NSWCCA 4
- Osman v R [2020] NSWCCA 78
- R v Greaves [2014] NSWCCA 194
- R v Isaacs (1997) 41 NSWLR 374
- R v Jarad Smith [2016] NSWCCA 75
- R v McKeown [2013] NSWDC 22
- R v Price [2004] NSWCCA 186
- R v Rosenthal [2008] NSWCCA 149
- R v Shashati [2018] NSWCCA 167
- R v Whyte (2002) 55 NSWLR 252
- R v Wilkins (1998) 38 A Crim R 445
- Stanyard v R [2013] NSWCCA 134