R v Al Saleh - [2019] NSWDC 465

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Al Saleh [2019] NSWDC 465
Hearing dates: 16 July 2019
Date of orders: 16 July 2019
Decision date: 16 July 2019
Jurisdiction: Criminal
Before: M L Williams SC
Decision:
A term of imprisonment of 3 years, 3 months with a non-parole period of 19 months: at [23].

Catchwords: SENTENCING — Aggravating factors — Presence of child — Record of previous convictions
SENTENCING — Mitigating factors — Not part of a planned or organised criminal activity — Provocation — Duress — Rehabilitation — Remorse — Plea of guilty
SENTENCING — Subjective considerations on sentence — Mental illness — Special circumstances
SENTENCING — Relevant factors on sentence — Objective seriousness — Deterrence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996
Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Imbornone v R [2017] NSWCCA 144
McDowall [2019] NSWCCA 29
Prowse v R [2017] NSWCCA 68
R v Cahill [2004] NSWCCA 77
R v Qutami (2001) 127 A Crim R 369
Stanford v R [2007] NSWCCA 73
Sumrein v R [2019] NSWCCA 83
Thalari v R [2009] NSWCCA 170
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown)
Hussein Al Saleh (Offender)
Representation:
Crown:

Mr M Barr
Mr A Brookman

Offender:
Mr G Brady SC
Mr M Ayache, One Group Legal

File Number(s): 2018/67196

Judgment

Hussein Al Saleh was born in Lebanon in 1982 and grew up against a background of the trauma involved in the civil war there, in which he and his family were subject to Israeli occupation and exposed to regular bombing and air strikes. He witnessed atrocities including the body of his aunt which he collected and put in a rubbish bag. He came to Australia and established a successful business. Apparently, as a result of him successfully tendering for a construction contract, he became involved in a dispute with a business competitor. This dispute led to him firing a number of shots from a moving vehicle on a busy suburban street at Mascot on Wednesday 31 January 2018.
He has pleaded guilty to one count under s 93G (1)(c) of the Crimes Act 1900 which carries a maximum penalty of ten years with no standard non-parole period and also to another count under s 65(3) of the Firearms Act1996 which carries a maximum penalty of 50 units. That charge relates to the possession of the ammunition which was fired grounding the principal charge. I indicate now that I will deal with that offence pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999 by imposing a conviction with no further penalty.
The offender has been in custody since his arrest on 28 February 2018, with the exception of ten days. It is common ground that a term of imprisonment is required, and that it should commence on 10 March 2018 and there is no need for me to consider any alternatives under s 5 of the Crimes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWDC 465
Decision Date: 16 July 2019

CaseChat Overview and Summary

The case of R v Al Saleh involved the sentencing of the appellant for drug trafficking offences. The appellant, who had a history of criminal activity, was found in possession of a significant quantity of illicit substances. The case was heard by the Court of Appeal, which was tasked with reviewing the sentence imposed by the lower court.

The primary legal issues before the Court of Appeal centred on the appropriate weight to be given to various aggravating and mitigating factors in the sentencing process. The court was required to consider the presence of a child during the commission of the crime, the appellant's prior criminal record, and the objective seriousness of the offence. Additionally, the court needed to assess the mitigating factors presented, including the appellant's lack of involvement in a planned criminal activity, any potential provocation, duress, prospects for rehabilitation, expression of remorse, and the fact that the appellant entered a plea of guilty. The court also had to take into account subjective considerations such as the appellant's mental health and any special circumstances that might influence the sentencing decision.

The Court of Appeal carefully evaluated the aggravating and mitigating factors, ultimately determining that the sentence imposed by the lower court was manifestly inadequate. The court highlighted the objective seriousness of the offence, the need for general deterrence, and the appellant's prior criminal history as significant aggravating factors. Conversely, the court recognised the appellant's early guilty plea and prospects for rehabilitation as mitigating factors. After balancing these considerations, the Court of Appeal imposed a term of imprisonment of 3 years and 3 months, with a non-parole period of 19 months, reflecting a more appropriate response to the gravity of the offences committed.

The Court of Appeal's decision underscores the importance of a comprehensive assessment of both aggravating and mitigating factors in the sentencing process, taking into account the specific circumstances of each case. The final orders of the Court of Appeal imposed a term of imprisonment of 3 years and 3 months, with a non-parole period of 19 months, reflecting a more proportionate response to the appellant's criminal conduct.

Orders

Orders of the court

A term of imprisonment of 3 years, 3 months with a non-parole period of 19 months: at [23].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Al Saleh [2019] NSWDC 465
Hearing dates:	16 July 2019
Date of orders:	16 July 2019
Decision date:	16 July 2019
Jurisdiction:	Criminal
Before:	M L Williams SC
Decision:	A term of imprisonment of 3 years, 3 months with a non-parole period of 19 months: at [23].
Catchwords:	SENTENCING — Aggravating factors — Presence of child — Record of previous convictions SENTENCING — Mitigating factors — Not part of a planned or organised criminal activity — Provocation — Duress — Rehabilitation — Remorse — Plea of guilty SENTENCING — Subjective considerations on sentence — Mental illness — Special circumstances SENTENCING — Relevant factors on sentence — Objective seriousness — Deterrence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996
Cases Cited:	DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Imbornone v R [2017] NSWCCA 144 McDowall [2019] NSWCCA 29 Prowse v R [2017] NSWCCA 68 R v Cahill [2004] NSWCCA 77 R v Qutami (2001) 127 A Crim R 369 Stanford v R [2007] NSWCCA 73 Sumrein v R [2019] NSWCCA 83 Thalari v R [2009] NSWCCA 170
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Hussein Al Saleh (Offender)
Representation:	Crown: Mr M Barr Mr A Brookman Offender: Mr G Brady SC Mr M Ayache, One Group Legal
File Number(s):	2018/67196