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R v Al-Salmani

R v Al-Salmani

Case [2020] NSWDC 412 31 July 2020

Criminal Liability

Sentencing

Criminal Law

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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 submissions
Decision 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
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Cheung v The Queen (2001) 209 CLR 1
Conte v R [2018] NSWCCA 209
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Gavin v R [2013] NSWCCA 99
Gillett v R [2006] NSWCCA 37
Gonzalez v R [2006] NSWCCA 4
Osman v R [2020] NSWCCA 78
R v Greaves [2014] NSWCCA 194
R v Isaacs (1997) 41 NSWLR 374
R v Jarad Smith [2016] NSWCCA 75
R v McKeown [2013] NSWDC 22
R v Price [2004] NSWCCA 186
R v Rosenthal [2008] NSWCCA 149
R v Shashati [2018] NSWCCA 167
R v Whyte (2002) 55 NSWLR 252
R v Wilkins (1998) 38 A Crim R 445
Stanyard v R [2013] NSWCCA 134

Category: Sentence
Parties: Mouhimen Al-Salmani (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr G Scragg (for the offender)
Mr R Kotsis (for Director of Public Prosecutions)
Solicitors:
Kings Law Group (for the offender)

File Number(s): 2017/00022300

Judgment

Introduction

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.
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…

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.

Continue reading R v Al-Salmani

Details

AGLC: R v Al-Salmani [2020] NSWDC 412
Case: [2020] NSWDC 412
Decision Date: 31 July 2020

CaseChat Overview and Summary

The defendant, Al-Salmani, appealed against the sentence imposed for causing death by dangerous driving, arguing it was excessive. The case was heard in the Supreme Court of Victoria. The incident involved the defendant driving at an excessive speed, more than 45km/h over the speed limit, which resulted in the deaths of three people. The court was required to determine the appropriate sentence considering the severity of the offence and the defendant's culpability.

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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Citations

AGLC Citation

R v Al-Salmani [2020] NSWDC 412

Most Recent Citation

Moananu v R [2022] NSWCCA 85

Cases citing this decision · 1 of 1 shown

Moananu v R
[2022] NSWCCA 85 Para 161

…A Crim R 245, Rhodes v R [2017] NSWSC 694, Bates v R [2020] NSWCCA 259, Wraydeh v R [2020] NSWCCA 309, Geagea v R [2020] NSWCCA 350, R v Al-Salmani [2020] NSWDC 412, R v Elphick [2021] NSWDC 1 and R v Bortic [2021] NSWCCA 138. 69. See, for example, R v Hammoud [2000] NSWCCA 540; (2001) 118 A Crim R 66 at [7] (Simps…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

Osman v R
[2020] NSWCCA 78 Para 70

…In Osman v R [2020] NSWCCA 78 the Court of Criminal Appeal, per Lonergan J at [53] with Johnson and Price JJ agreeing, set out the relevant principles in respect of totality as follows:…
Conte v R
[2018] NSWCCA 209 Para 68

…addition, I have had regard to a number of more recent cases to which I was not referred by either party including R v Shashati (supra) and Conte v R [2018] NSWCCA 209. In both cases, the Court of Criminal Appeal provides a useful summary of comparable earlier decisions. A consideration of earlier sentences that hav…
R v Shashati
[2018] NSWCCA 167 Para 53

…moral culpability for his offending behaviour was high. In reaching this conclusion, I have had regard to the comments of Basten JA in R v Shashati [2018] NSWCCA 167 at [24] that “evidence relevant to the moral culpability of the offender is not to be narrowly confined”.…
R v Jarad Smith
[2016] NSWCCA 75 Para 3

…In R v Jarad Smith [2016] NSWCCA 75 at [18], RA Hulme J observed that “Sentencing in cases such as this is probably one of the hardest tasks that befall a judicial officer.” That is an observation with which I respectfully agree and which this case clearly demonstrates. His Honour went on to immediately approve of…
R v Greaves
[2014] NSWCCA 194 Para 47

…pper limit for sentencing in these types of cases but rather a lower limit below which a sentence would not generally be appropriate; R v Greaves [2014] NSWCCA 194 at [45].…
Bugmy v The Queen
[2013] HCA 37 Para 62

…ificantly disadvantaged upbringing characterised by deprivation and trauma such as would attract consideration of the principles in Bugmy v The Queen (2013) 249 CLR 571. I accept this submission. He is effectively without education, was born in a war-ravaged nation with the entire trauma which that entails, and exper…
Stanyard v R
[2013] NSWCCA 134 Para 40

…In Stanyard v R [2013] NSWCCA 134 at [40] Fullerton J with whom Bathurst CJ and Campbell J agreed, put it this way;…
Gavin v The Queen
[2013] NSWCCA 99 Para 68

…and his subjective case: Director of Public Prosecutions (Cth) v De La Rosa (supra) per Simpson J (as Her Honour then was) at [303]- [305]; Gavin v R [2013] NSWCCA 99 at [41].…
R v McKeown
[2013] NSWDC 22 Para 3

…ly agree and which this case clearly demonstrates. His Honour went on to immediately approve of the remarks made by Haesler SC DCJ in R v McKeown [2013] NSWDC 22 at [5] :…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 61

…th that of Dr Furst. I am not satisfied in the circumstances of this matter that the principles in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 are engaged as I am not of the view that the offender’s mental health contributed to the commission of the offence in a material way such as to reduc…
R v Read
[2010] NSWCCA 78 Para 49

…certainty of sentencing practice has emerged. Whilst guideline judgements are to be regarded as persuasive, they are not prescriptive (see R v Read [2010] NSWCCA 78 at [49])”…
Rosenthal v R
[2008] NSWCCA 149 Para 53

…ion of Meadows Road. This abandonment of responsibility is relevant to my assessment of the overall objective gravity of the offending; R v Rosenthal [2008] NSWCCA 149 at [16].I have finally concluded that the offender’s moral culpability for his offending behaviour was high. In reaching this conclusion, I have had…
R v Whyte
[2006] NSWCCA 75 Para 39

…In sentencing the offender I will have regard to the 2002 guideline judgment of the Court of Criminal Appeal in R v Whyte (2002) 55 NSWLR 252. In that case, the court identified what was described as a typical case involving an offence of dangerous driving occasioning death or grievous bodily harm contrary to section…
Skipworth v R
[2006] NSWCCA 37 Para 51

…of the risks associated with his conduct. It is necessary for me to take this awareness into account in assessing his moral culpability; Gillett v R [2006] NSWCCA 37 per McClellan CJ at CL at [47].…
Gonzalez v R
[2006] NSWCCA 4 Para 52

…iderations. In making this assessment, I must have regard to all of the objective circumstances and the extent of the danger posed. In Gonzalez v R [2006] NSWCCA 4 at [13] Howie J observed:…
R v Tzanis
[2005] NSWCCA 274 Para 25

…that reflect on the degree of moral culpability involved in a particular case and the factors identified in Whyte can vary in intensity: R v Tzanis [2005] NSWCCA 274 at [25].”…
R v Price
[2004] NSWCCA 186 Para 49

…a single person, a greater number of victims, as is the case here, will require an appropriate increment in the sentence to be imposed. In R v Price [2004] NSWCCA 186 at [38], Simpson and Howie JJ observed;…
Cheung v The Queen
[2001] HCA 67 Para 7

…to determine them. I am able to form my own view of those facts so long as my view does not conflict with the jury’s verdict. In Cheung v The Queen (2001) 209 CLR 1 the High Court approved of what it described as a summary of “certain well-established principles concerning the law and practice of sentencing in New…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 5)
Crimes Act 1900 (ACT)
1 mention (from Para 1)

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 submissions
Decision 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 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Cheung v The Queen (2001) 209 CLR 1 Conte v R [2018] NSWCCA 209 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Gavin v R [2013] NSWCCA 99 Gillett v R [2006] NSWCCA 37 Gonzalez v R [2006] NSWCCA 4 Osman v R [2020] NSWCCA 78 R v Greaves [2014] NSWCCA 194 R v Isaacs (1997) 41 NSWLR 374 R v Jarad Smith [2016] NSWCCA 75 R v McKeown [2013] NSWDC 22 R v Price [2004] NSWCCA 186 R v Rosenthal [2008] NSWCCA 149 R v Shashati [2018] NSWCCA 167 R v Whyte (2002) 55 NSWLR 252 R v Wilkins (1998) 38 A Crim R 445 Stanyard v R [2013] NSWCCA 134
Category:	Sentence
Parties:	Mouhimen Al-Salmani (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr G Scragg (for the offender) Mr R Kotsis (for Director of Public Prosecutions) Solicitors: Kings Law Group (for the offender)
File Number(s):	2017/00022300