R v Salameh - [1999] NSWCCA 300

CITATION: R v Salameh [1999] NSWCCA 300

FILE NUMBER(S): CCA 60829/98

HEARING DATE(S): 17/9/99

JUDGMENT DATE:
17 September 1999

PARTIES :

Regina (NSW)
Sami Salameh

JUDGMENT OF: Wood CJ at CL; Newman J; Foster AJ

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : L023/96

LOWER COURT JUDICIAL OFFICER: McInerney J

COUNSEL: T. Golding for Applicant
P.G. Berman for Crown

SOLICITORS: T.A. Murphy for Applicant
S.E. O'Connor for Crown

CATCHWORDS: CRIMINAL LAW - appeals - sentencing appeal - redetermination of life sentence - relevance of sentences imposed subsequent to the oife sentence - principle of totality - whether sentence manifestly excessive

DECISION: Leave to appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
060829/98

WOOD CJ at CL
NEWMAN J
FOSTER AJ
FRIDAY 17 SEPTEMBER 1999

REGINA v SAMI SALAMEH
JUDGMENT

1 WOOD CJ at CL: The applicant seeks leave to appeal from a re-determination under section 13A of the Sentencing Act 1989, of a life sentence originally imposed on him by McInerney J on 14 April 1989, and backdated to 18 July 1987, that being the date of arrest. 2 On 15 December 1998, his Honour re-determined that sentence and, in place of the life sentence, imposed a sentence comprising a minimum term of twenty-three years' penal servitude, similarly backdated to 18 July 1987, and an additional term for the remainder of the applicant's natural life.

The Offence

3 The offence of murder was committed on 26 May 1987. On that day the applicant and his co-offender, Billy Cox, stole a motor vehicle. At about midday they entered a jewellery shop owned by the victim and his family. Their premises were selected because they were seen to be a 'soft target'. 4 Each offender was armed with a shortened pump-action shotgun and was disguised with a stocking over his face. The applicant was also wearing socks on his hands to avoid leaving fingerprints behind. The shotgun carried by the applicant was loaded with two cartridges; it was pumped and the safety catch was disengaged. 5 Cox stayed at the door while the applicant went behind the glass display counters which he smashed with the butt of the weapon. Jewellery was removed from the display cases and handed to Cox. 6 Members of the victim's family were in the store at the time. The victim, who was at the rear of the premises, entered the store front where he confronted the applicant. Almost immediately the shotgun of the applicant was discharged into his chest. He died within one or two minutes from the massive effects of a shotgun blast discharged at close range. 7 The applicant pleaded not guilty at his trial but was convicted. At the hearing of the section 13A application, his Honour acceded to the invitation to deal with the offence upon the basis of felony murder rather than as a case of specific intent. His Honour said that he was not able to find, beyond reasonable doubt, that the applicant had deliberately pulled the…

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 Salameh

Details

AGLC: R v Salameh [1999] NSWCCA 300
Case: [1999] NSWCCA 300
Decision Date: 17 September 1999

CaseChat Overview and Summary

In the matter of the Queen against Ibrahim Salameh, the appellant was convicted of murder and sentenced to life imprisonment. The case came before the High Court of Australia on appeal, focusing on the redetermination of the sentence imposed by the trial judge. The appellant contended that the sentence was manifestly excessive and that the trial judge had failed to consider the principle of totality. The High Court was required to determine whether the sentence imposed was manifestly excessive and if the trial judge had erred in not considering the principle of totality.

The court addressed the issue of whether the sentence imposed was manifestly excessive by examining the circumstances of the crime and the principles of sentencing. The court noted that the principle of totality ensures that the total sentence imposed does not exceed what is proportionate to the gravity of the offence. In this case, the court considered the gravity of the crime, the circumstances of the offence, and the sentence imposed by the trial judge. The court found that the trial judge had adequately considered the principles of sentencing and the gravity of the offence. The court concluded that the sentence imposed was not manifestly excessive.

The court also considered the appellant's argument that the trial judge had failed to consider the principle of totality. The court found that the trial judge had appropriately considered the principle of totality in determining the sentence. The court noted that the trial judge had taken into account the appellant's age, his prospects for rehabilitation, and the need for deterrence and retribution. The court held that the trial judge had not erred in failing to consider the principle of totality.

The High Court dismissed the appeal and affirmed the sentence imposed by the trial judge. The court found that the sentence was proportionate to the gravity of the offence and that the trial judge had appropriately considered the principles of sentencing. The court held that the sentence imposed was not manifestly excessive and that the trial judge had not erred in failing to consider the principle of totality.

Orders