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District Court 15 December 2023

R v Salim

[2023] NSWDC 646

Assault & violence
CRIME APPEAL 19 DURING PANDEMIC

Citation: R v Salim [2023] NSWDC 646
Court: District Court of New South Wales
Date: 15 December 2023
Judge: Neilson DCJ

Background

The appellant, Mr Salim, was one of two co-offenders convicted of assault offences arising from a confrontation at a COVID-19 testing queue. The incident began when occupants of another vehicle believed a car driven by Mr Saleh's wife was jumping the queue, leading them to continuously beep their horn at her. Mr Saleh's wife, who had her young daughter and elderly mother in the car, contacted her husband.

Mr Saleh drove to the scene and recruited Mr Salim to accompany him. Mr Saleh then assaulted the male victim, Mr Leon, occasioning actual bodily harm, while both men also committed common assault on the female victim, Ms Quesada. The Magistrate in the Local Court found that Mr Saleh's criminality was considerably greater than Mr Salim's, noting in particular that Mr Saleh had stomped on the victims whereas Mr Salim's conduct involved closed-fist punches to the back of the male victim's head.

At first instance, Magistrate Donnelly at Sutherland Local Court sentenced Mr Salim to an aggregate term of 18 months' imprisonment with a non-parole period of 11 months, and did not consider a home detention component under an intensive corrections order (ICO). Mr Salim appealed to the District Court. The companion appeal by Mr Saleh had already been decided on 25 September 2023 (R v Saleh [2023] NSWDC 645).

  • Whether the indicative sentences fixed by the Magistrate for each offence were excessive in light of Mr Salim's lesser degree of criminality relative to Mr Saleh
  • Whether the aggregate sentence of 18 months was appropriate
  • Whether an intensive corrections order incorporating home detention was available and appropriate, given that no sentencing assessment report addressing home detention had been before the Magistrate

Decision

Neilson DCJ found that the Magistrate's indicative sentences for Mr Salim were too high. His Honour reduced the indicative sentence for assault occasioning actual bodily harm from 15 months to 12 months, and the indicative sentence for common assault from 7 months to 6 months, reflecting Mr Salim's lesser culpability compared to Mr Saleh.

His Honour also reduced the aggregate sentence from 18 months to 14 months, and fixed what would have been a non-parole period at 10 months. These figures were reached on the same basis as the Magistrate's own indicative sentences, namely inclusive of a discount for Mr Salim's guilty plea.

The Magistrate had not considered home detention because no sentencing assessment report addressing that option was before the court at first instance. By the time of the appeal hearing, Mr Salim had been assessed as suitable for home detention. Applying the same approach taken in the Saleh appeal, Neilson DCJ set aside the Local Court sentence and imposed an ICO requiring home detention for the first 10 months of the 14-month term.

Orders Made

  • The sentence imposed by Sutherland Local Court on 12 May 2023 was set aside
  • Indicative sentence for common assault on Ms Quesada (Sequence 2): 6 months
  • Indicative sentence for assault occasioning actual bodily harm on Mr Leon (Sequence 6): 12 months
  • Aggregate sentence: 14 months' imprisonment, to be served by way of intensive correction in the community, commencing 15 December 2023
  • Home detention for the initial 10 months of the sentence
  • Mandatory ICO conditions: no commission of any offence; supervision by a Community Corrections Officer
  • Mr Salim to report to the Community Corrections Office at Sutherland by telephone before close of business on 15 December 2023

Key Takeaways

  • The District Court reduced both the indicative sentences and the aggregate term for the less culpable co-offender, emphasising that the degree of personal violence inflicted is a meaningful differentiator even between participants in the same offences.
  • Where a sentencing assessment report addressing home detention was not before the original sentencing court, the absence of that option at first instance did not preclude the District Court from considering and imposing an ICO with a home detention condition on appeal, once a suitable report became available.
  • Indicative sentences remained inclusive of the guilty plea discount, consistent with the approach taken at first instance by the Magistrate.
  • The decision illustrates that co-offenders sentenced together may receive meaningfully different outcomes on appeal if their individual degrees of criminality are sufficiently distinct, even where the underlying facts arise from the same incident.
  • At the time of judgment, the Court noted an unresolved debate in the Court of Criminal Appeal concerning whether an ICO may be declined on the basis that it constitutes insufficient punishment, a question that Neilson DCJ did not need to resolve given his approach to the sentencing discretion.

Legislation and Cases Referenced

Cases:
- R v Saleh; R v Salim [2023] NSWLC 2 (the Local Court decision under appeal)
- R v Saleh [2023] NSWDC 645 (companion District Court appeal, decided 25 September 2023)

Legislation: No specific legislation was cited in the judgment text or metadata.