AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 25 September 2023

R v Saleh

[2023] NSWDC 645

Assault & violenceTraffic & driving
CRIME APPEAL 19 DURING PANDEMIC

Citation: R v Saleh [2023] NSWDC 645
Court: District Court of New South Wales
Date: 25 September 2023
Judge: Neilson DCJ

Background

The appellant pleaded guilty in the Local Court to two assault offences arising from an incident on 28 December 2021 at Carlton, NSW. The victims had been waiting three to four hours in a vehicle queue for a drive-in COVID testing facility when another vehicle cut in ahead of them. After the victims confronted the queue-jumping driver (who was the appellant's wife), the appellant arrived with another man in a white truck.

What followed was a serious physical attack. The appellant attempted to smash the window of the victims' Toyota Prado with a screwdriver, climbed onto the roof of the vehicle, punched one victim through the sunroof, and ultimately stomped through the sunroof making contact with both victims. The co-offender entered the car and punched the male victim repeatedly.

In the Local Court, Magistrate Donnelly imposed an aggregate sentence of one year and ten months imprisonment, with a non-parole period of one year and two months. The magistrate declined to order the sentence be served by way of an Intensive Correction Order (ICO), concluding that would be insufficient punishment for what he viewed as serious offences. The appellant appealed to the District Court on the ground of severity.

  • Whether the Local Court magistrate erred in declining to impose an ICO in place of a full term of imprisonment
  • Whether the magistrate's view that an ICO was insufficient punishment was justified in light of the sentencing assessment report and the circumstances of the offending
  • Whether home detention could appropriately be incorporated as a condition within an ICO under section 73A(4) of the Crimes (Sentencing Procedure) Act 1999

Decision

Neilson DCJ acknowledged that the magistrate's reluctance to impose an ICO was understandable given the nature of the offences. However, his Honour noted the sentencing assessment report had assessed the appellant as presenting a low risk of re-offending, and that under the conditions originally contemplated, supervision would have been minimal.

On appeal, his Honour referred the matter back to Community Corrections for a further assessment specifically considering home detention. That report confirmed the appellant's accommodation was suitable for home detention and identified no associated risks. The appellant remained at a low supervision level but would have contact with a Community Corrections Officer every eight weeks.

His Honour determined that an ICO incorporating a home detention condition for the initial 14 months, followed by community service work for the balance, struck an appropriate balance between punishment and rehabilitation. The indicative sentences for each offence remained the same as those imposed below, each reflecting a 25% discount for early guilty pleas.

Orders Made

  • The sentence imposed by the Local Court at Sutherland on 12 May 2023 was set aside
  • Aggregate sentence of one year and ten months imprisonment imposed, commencing 25 September 2023, to be served by way of Intensive Correction Order (ICO)
  • Indicative sentence for Sequence 3 (common assault): 8 months imprisonment
  • Indicative sentence for Sequence 7 (assault occasioning actual bodily harm): 20 months imprisonment
  • ICO conditions:
  • The appellant must not commit any offence
  • The appellant must submit to supervision by a Community Corrections Officer
  • Home detention for the initial 14 months of the sentence (pursuant to s 73A(4) of the Crimes (Sentencing Procedure) Act 1999)
  • 150 hours of community service work
  • Report to Sutherland Community Corrections Office on 25 September 2023

Key Takeaways

  • The District Court confirmed that a magistrate's view that an ICO constitutes insufficient punishment does not automatically preclude one from being imposed on appeal, particularly where updated assessment reports support a more structured community-based order.
  • Under section 73A(4) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court may limit the period during which a home detention condition within an ICO operates, allowing different conditions to apply across different phases of the sentence.
  • A low assessed risk of re-offending, confirmed by Community Corrections, was a significant factor in the District Court's decision to depart from a full term of imprisonment in favour of a community-based sentence.
  • The 25% discount for early guilty pleas was applied and was not in dispute on appeal, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999.
  • Serious and violent offending in a public context, including attacks involving weapons and multiple victims, does not necessarily preclude an ICO where suitability for home detention is established and the sentencing assessment supports it.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 73A(4)

Cases
- R v Saleh; R v Salim [2023] NSWLC 2 (Local Court sentencing reasons below)
- Stanley v DPP (NSW) [2023] HCA 3
- Zheng v Rex [2023] NSWCCA 64