District Court
New South Wales
Medium Neutral Citation: R v Al-Salmani [2020] NSWDC 412 Hearing dates: 22 May 2020 – Written submissions
16 July 2020 – Additional written submissions
31 July 2020 – Oral submissionsDecision date: 31 July 2020 Jurisdiction: Criminal Before: O’BRIEN AM DCJ Decision: Aggregate term of imprisonment of 12 years. Non-parole period of 8 years. See order [75].
Catchwords: SENTENCING – reasons for judgment – aggravated dangerous driving causing death – speeding more than 45km/h in excess of applicable speed limit – three deceased – no agreement as to facts upon which sentence to be imposed – totality – special circumstances – aggregate sentence.
Legislation Cited: Crimes Act 1900
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
Cheung v The Queen (2001) 209 CLR 1
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
R v Isaacs (1997) 41 NSWLR 374
R v Jarad Smith [2016] NSWCCA 75
R v Rosenthal [2008] NSWCCA 149
R v Shashati [2018] NSWCCA 167
R v Wilkins (1998) 38 A Crim R 445
Category: Sentence Parties: Mouhimen Al-Salmani (the offender)
Director of Public ProsecutionsRepresentation: Counsel:
Solicitors:
Mr G Scragg (for the offender)
Mr R Kotsis (for Director of Public Prosecutions)
Kings Law Group (for the offender)
File Number(s): 2017/00022300
Judgment
Introduction
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On 20 December 2019 following a trial that proceeded over almost 6 weeks in the District Court at Campbelltown, the offender was found guilty by a jury of ten of three counts of aggravated dangerous driving causing death. These are offences contrary to s.52A (2) of the Crimes Act 1900 and each carries a maximum penalty of 14 years imprisonment. The circumstance of aggravation relied upon by the Crown, and accepted by the jury beyond reasonable doubt, was that the offender was travelling at a speed that exceeded by more than 45 km/h the applicable speed limit.
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The three deceased persons were Ngoi Ngo aged 79 years, his wife Thu Hong Nguyen aged 75 years and their carer Le Tran Thang aged 54 years. Little attention was paid to them during the trial, but it is critical to note from the outset that on 18 January 2017 they were three innocent persons who were simply going about their business in a way typical of all those members of our community who use the roads. Regrettably, shortly after 1pm on that day, they had the fatal misfortune to encounter the offender in circumstances which tragically resulted in their deaths. These completely avoidable deaths, that were solely and directly attributable to the driving conduct of the offender, have caused…
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- AGLC
- R v Al-Salmani [2020] NSWDC 412
- Case
- [2020] NSWDC 412
- Decision Date
CaseChat Overview and Summary
The court considered several legal issues, including the principles of totality and special circumstances in sentencing, and whether the sentence should reflect the aggravated nature of the driving and the loss of life. The court also examined the lack of agreement between the parties on the facts that should underpin the sentence. The court needed to balance the severity of the offence with the need to avoid excessive punishment, considering all relevant factors.
In delivering the judgment, the court acknowledged the gravity of the offence and the loss of life but found that the sentence imposed was not excessive. The court considered the totality principle, which requires that the aggregate punishment should not be disproportionately severe. The court also noted the special circumstances of the case, including the excessive speeding and the resulting fatalities. After carefully weighing all the factors, the court determined that the sentence was appropriate and affirmed the original sentence.
The final orders confirmed an aggregate term of imprisonment of 12 years, with a non-parole period of 8 years. The court's order was detailed in [75], finalising the appeal and confirming the sentence.
Orders
Orders of the court
Aggregate term of imprisonment of 12 years. Non-parole period of 8 years. See order [75].
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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