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Court of Criminal Appeal 29 November 2023

Saliba v R

[2023] NSWCCA 298

Assault & violenceFirearms & weapons
CRIMES APPEALS APPEAL AGAINST SENTENCE

Citation: Saliba v R [2023] NSWCCA 298
Court: NSW Court of Criminal Appeal
Date: 29 November 2023
Judges: Ward P; Walton J; Fagan J

Background

The applicant pleaded guilty in the District Court to three offences arising from a single episode on 15 June 2020: possessing an unlicensed .22 calibre Ruger pistol, recklessly causing grievous bodily harm, and discharging a firearm in a manner likely to injure. The applicant, a member of a Middle Eastern organised criminal group, believed a fellow member was paranoid, armed, and intent on shooting him. After receiving escalating threats, he acquired the pistol for self-defence the day before the shooting.

When the victim arrived at the applicant's address and walked quickly toward the property, the applicant emerged carrying the pistol and fired twice in rapid succession. The first shot struck the victim in the jaw and the second struck him in the chest, leaving a projectile lodged in the soft tissues of his back. A third shot was then fired in the victim's direction but did not strike him.

The District Court sentenced the applicant to an aggregate term of 9 years imprisonment with a non-parole period of 5 years and 6 months, allowing a 10% discount for the guilty pleas. The applicant sought leave to appeal on the ground that the sentencing judge had misapprehended the agreed facts when attributing the injuries across the counts.

  • Whether the sentencing judge erred in fact by misidentifying which count was responsible for which gunshot wound.
  • Whether that factual error occasioned a miscarriage of justice warranting a lesser aggregate sentence.

Decision

The Court of Criminal Appeal accepted that the sentencing judge had made a factual error. The judge attributed only the jaw wound to count 2 (recklessly causing grievous bodily harm) and attributed the chest wound to count 3 (discharge of a firearm likely to injure), when in fact both wounds were inflicted by the two shots fired under count 2. The third shot, the subject of count 3, missed the victim entirely and caused no additional injury.

This error had a mirroring effect: it understated the seriousness of count 2 by crediting it with only one injury when it caused two, and overstated the seriousness of count 3 by attributing a wound to it when the projectile did not strike the victim. The Court corrected the indicative sentences accordingly, assigning the greater indicative term to count 2 and a lesser one to count 3.

Despite identifying the error, the Court unanimously dismissed the appeal. The sentencing judge's misapprehension did not distort her understanding of the overall gravity of the offending. The combined harm, danger, and criminality remained identical regardless of how the injuries were allocated across the counts. Because it is the aggregate sentence that operates as the binding sentencing order, and because the Court considered that aggregate to be commensurate with all the objective and subjective circumstances, no lesser sentence was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A factual error by a sentencing judge does not automatically warrant a lesser sentence. Where the error merely reallocates seriousness between counts without distorting the judge's assessment of the overall gravity of offending, the aggregate sentence can stand.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the operative sentencing order is the aggregate sentence, not the individual indicative sentences for each count. Differences in indicative sentences between the original judge and the appellate court carry no consequence where the aggregate is appropriate.
  • Where a sentencing judge's misapprehension understates one count and overstates another by equivalent degrees, the net effect on the total assessment of criminality, culpability, harm, and danger may be nil, precluding any reduction on appeal.
  • The Court acknowledged the corrected factual position by adjusting the indicative sentences in its own reasons, placing the higher indicative term on count 2 (where both wounds were caused) and a lower indicative term on count 3 (where the shot missed), even though those adjustments produced no change to the aggregate.
  • Offending committed while on parole featured as part of the sentencing background, with the commencement date of the aggregate sentence fixed to account for time in custody referable to the earlier sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 93G(1)
- Firearms Act 1996 (NSW), ss 7(1), 74(3)
- Criminal Procedure Act 1986 (NSW), s 166

Cases: No cases were cited in the judgment.