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2
Local Court 12 May 2023

R v Saleh; R v Salim

[2023] NSWLC 2

Assault & violence
SENTENCING FACT FINDING AGREED FACTS [1999] HCA 54 OFFENCES S 59 CRIMES ACT ASSAULT OCCASIONING ACTUAL BODILY HARM

Citation: R v Saleh; R v Salim [2023] NSWLC 2
Court: Local Court of NSW
Date: 12 May 2023
Judge: Donnelly LCM

Background

Two defendants pleaded guilty to offences arising from a violent incident on 28 December 2021, when a queue of cars was waiting at a COVID-19 testing site. After receiving a phone call from his wife, the first defendant arrived with the second defendant in a truck. Without any discussion, the first defendant exited armed with a screwdriver and attacked the male victim, who was sitting in his car. He attempted to smash the car window, damaged the side mirror, climbed onto the bonnet, punched the male victim repeatedly through the sunroof, climbed into the vehicle, and stomped on both occupants. The second defendant simultaneously entered the back seat and punched the male victim repeatedly from behind.

The first defendant faced charges of assault occasioning actual bodily harm, common assault, and property damage. The second defendant faced charges of assault occasioning actual bodily harm and common assault. Both pleaded guilty. The female victim was assaulted by both defendants after she attempted to shield her husband from the attacks.

Sentencing was complicated by two significant procedural issues: the proposed use of Form 1 documents to deal with the common assault charges, and material inconsistencies between the agreed facts signed by the parties and factual accounts contained in statements tendered on behalf of the defendants.

  • Whether it was appropriate to place the common assault offences on a Form 1 document, given the seriousness of those offences and the separate victim involved
  • How the court should resolve significant factual discrepancies between the agreed facts and versions of events in the defendants' subjective material
  • Whether the defendants were eligible for, and should receive, intensive correction orders (ICOs) rather than full-time imprisonment
  • What sentences were appropriate having regard to objective seriousness, general deterrence, denunciation, and the harm caused to the victims

Decision

Form 1 Refusal

The court declined to accept the Form 1 documents for each defendant. The common assault offences involved a separate and identifiable victim (the female partner), who had been punched and stomped on while trying to protect her husband. Placing those offences on a Form 1, rather than sentencing for them separately, would have denied the court the ability to impose sentences properly reflecting the totality of each defendant's criminality. The court drew on Court of Criminal Appeal authority confirming that a Form 1 arrangement is inappropriate where it would produce an inadequate sentence.

Factual Disputes

The agreed facts stated it was "not known" what the first defendant's wife said to him during the phone call before the attack. However, statements tendered by defence counsel described the wife screaming that someone was attacking her, and attributed significantly more threatening conduct to the male victim, including allegations that he had exited his car multiple times and had punched her vehicle. None of that conduct appeared in the agreed facts or was visible in the CCTV footage. Drawing on Court of Criminal Appeal authority requiring sentencing courts to address such discrepancies before proceeding, the court returned the agreed facts to the parties for reconsideration. Where differences remained, the court applied the principle from The Queen v Olbrich (1999) 199 CLR 270, resolving contested factual matters in the manner least favourable to the defendants.

Intensive Correction Orders

The court considered whether ICOs were appropriate alternatives to full-time custody. Following the High Court's decision in Stanley v DPP (NSW) [2023] HCA 3, the court confirmed that even where beneficial findings under s 66(2) of the Crimes (Sentencing Procedure) Act 1999 are made, the common law proportionality principle still operates. A sentencing court is also entitled to take into account the relative leniency of an ICO when deciding whether it should be imposed. In the second defendant's case, Community Corrections indicated that supervision would be suspended and community service work was unavailable, providing an additional basis for declining to impose an ICO. Full-time imprisonment was appropriate for both defendants.

Sentences Imposed

The first defendant's offences were assessed as falling at the upper end of the objective seriousness range. The second defendant's offences fell at least above the middle of the range. The court identified strong needs for general deterrence, denunciation, accountability, and recognition of harm to the victims as the dominant sentencing considerations. Special circumstances were found in each case to justify varying the statutory ratio between the non-parole period and the balance of the sentence, based on each defendant's need for rehabilitation.

Orders Made

  • First defendant (Mr Saleh): aggregate sentence of 22 months imprisonment, commencing 12 May 2023 and expiring 11 March 2025, with a non-parole period of 14 months expiring 11 July 2024; Community Correction Order of 18 months with supervision for the property damage offence, with reporting requirements upon release
  • Second defendant (Mr Salim): aggregate sentence of 18 months imprisonment, commencing 12 May 2023 and expiring 11 November 2024, with a non-parole period of 11 months expiring 11 April 2024

Key Takeaways

  • A sentencing court may decline to accept a Form 1 arrangement where doing so would prevent the imposition of sentences that properly reflect the seriousness of the offending and the totality of the defendants' criminality, particularly where a separate victim is involved.
  • Factual material tendered in mitigation that is inconsistent with agreed facts must be addressed before sentence is passed. Where inconsistencies are not resolved by the parties, the court is required to apply the Olbrich principle and act on the version least favourable to the defendant.
  • Under Stanley v DPP (NSW) [2023] HCA 3, the proportionality principle at common law continues to apply even after a court makes beneficial findings under s 66(2) of the Crimes (Sentencing Procedure) Act 1999, and the relative leniency of an ICO is a relevant consideration in deciding whether to impose one.
  • Practical unavailability of ICO conditions, such as where Community Corrections indicates supervision will be suspended and community service work cannot be offered, provides an independent basis for declining to impose an ICO.
  • Where assaults are committed with a high degree of violence against multiple victims, general deterrence, denunciation, accountability, and the harm caused to victims are likely to be dominant sentencing considerations pointing toward full-time imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 61, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 22, 32, 33, 35A, 44, 53A, 66, 73A
- Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 8

Cases
- Stanley v DPP (NSW) [2023] HCA 3; (2023) 97 ALJR 107
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- CP v R [2009] NSWCCA 291; (2009) 213 A Crim R 26
- R v Falls [2004] NSWCCA 335
- R v Crowley [2004] NSWCCA 256
- Zammit v R [2010] NSWCCA 29
- Kareem v R [2022] NSWCCA 188
- Karout v R [2019] NSWCCA 253
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Park v The Queen (2021) 273 CLR 303; [2021] HCA 37
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Bloomfield (1998) 44 NSWLR 734