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 trigger with the intention required for murder, although he had some suspicions in that regard, related in particular to the ballistics tests which showed the weapon was not prone to accidental discharge. 8   The objective criminality of the applicant his Honour assessed as follows:

"This was a most serious offence. The applicant entered the premises disguised, with a shotgun pumped and the safety catch off ready to fire. Even allowing for what the applicant alleged was an accidental discharge, which I have some doubt about, to go into a jewellery shop to effect a robbery with a shotgun fully loaded ready to fire indicates that the applicant contemplated the use of that weapon if he was thwarted in his attempt to carry out the robbery".

9   His Honour's description of the seriousness of the offence could not in any way be challenged. It was not questioned on this application. Moreover, any suggestion to the effect that felony murder is a less serious offence than one involving a specific intent should, in my view, be rejected as lacking in foundation. Indeed in Mills, Court of Criminal Appeal, 3 April 1995 Gleeson CJ rejected such a proposition. 10   In addition to the conviction for murder the applicant was also found to have been guilty of larceny of a motor vehicle and of possession of a shortened firearm. He was sentenced by his Honour to imprisonment for four years and eight years respectively for those offences. By reason of the life sentence, his Honour declined to set any non-parole period for either offence.

The Subjective circumstances:

11   Before appearing for sentence on 14 April 1989, the applicant had collected numerous convictions for break and enter, stealing, larceny or attempted larceny, as well as convictions for goods in custody, conspiracy to commit armed robbery, receiving, assault and use firearm in a public place. His record had commenced in the Children's Court and he had served several terms of imprisonment. 12   After being sentenced for the murder, but before the hearing of the section 13A application, he had received further sentences for offences of armed robbery, larceny of a motor vehicle, possession of an unlicensed pistol, possession of means of disguising his face, and being armed with intent to commit a felony. 13   These charges related to two separate instances of criminality pre-dating the murder occurring on 21 January 1987 and 21 May 1987. They led to substantial concurrent terms of imprisonment. 14   The sentences related to the January offences, imposed by Gallen DCJ comprised two sentences each of four years' penal servitude for offences of possess unlicensed pistol and larceny of motor vehicle, and two sentences each of eight years' penal servitude for possessing means of disguise with intent, and being armed with intent. A non-parole period was fixed in relation to those matters of seven years. They were specified to commence from 19 April 1989, the date on which the applicant was sentenced. 15   The sentences for the May offences were imposed by Knight DCJ and comprised a sentence of thirteen years' penal servitude for armed robbery, and three years for the larceny of a motor vehicle. They were backdated to 18 July 1987, the date of the applicant's arrest on the murder charge. No non-parole period was specified although his Honour indicated, for the assistance of the Parole Board that, but for the life sentence, he would have fixed a non-parole period of ten years. 16   The May offences and the murder, it should be noted, were committed while the applicant was on bail for the January offences.
17   While serving these sentences the applicant escaped from Goulburn Correctional Centre on 20 July 1993. While at large he stole a motor vehicle. In addition he was charged with, and pleaded guilty to an offence of armed robbery in company. 18   Upon his re-arrest, he was sentenced by McDevitt DCJ in respect of the escape, to a fixed term of penal servitude for three years to date from 14 August 1995, that date being the date, calculated under the transitional provisions then in force, as the expiry date for the longest of the pre-existing determinate sentences. He was sentenced to concurrent terms of two years' penal servitude, and eighteen months, respectively for armed robbery and for larceny of a motor vehicle. The commencement date may not have been entirely correct but, if so, it was only out by a matter of days and no point was taken on the application in relation to it. 19   The applicant has been classified E2 and has been on protection while serving these sentences, at least in recent years. By the time he appeared for re-determination he was aged thirty-four years. His Honour noted that he had been unmanageable from an early age. He left school, at the age of fifteen years, with a record of aggressive behaviour that had become so bad as to lead to his referral, at the age of ten years, to the North Ryde Psychiatric Centre. Although treatment was recommended, his mother (who had his care at the time) did not take advantage of it. 20   His background of employment was spasmodic. He is an inveterate user of marijuana and an associate of the criminal element. He has a history of non co-operation with the Probation & Parole Service. His record, while serving the various sentences, was one of non co-operation with the prison authorities, of suspected involvement in attempts to escape and of involvement in standover tactics. He had shown some signs of co-operating in more recent times, but the assessment made by his Honour was that he had shown little effort overall to rehabilitate himself. His Honour's assessment in this regard is summed up in the following passage of the reasons for sentence:

"The applicant's shocking criminal history and present background cause uncertainty in relation to the question of his rehabilitation. I believe there is a serious question as to the extent to which he would represent a danger to the community on being released to parole. On present indications there is a substantial basis for concluding that he will commit further crimes if he is released. This is not a case of an uncharacteristic aberration. It is a case of an offender who has manifested a complete contempt of the Courts and procedures of law in this country. In such a case retribution, deterrence and protection of society require that a more severe penalty is warranted than would ordinarily be the case".

The principles applied:

21   His Honour noted that, because of the period spent serving the sentences imposed for the other offences, the applicant had served relatively little time exclusively referable to the offence of murder. Upon his Honour's calculations, the sentences imposed by Gallen DCJ would have expired, with a seven year non-parole period, on 18 April 1996, and those imposed by Knight DCJ, assuming a nominal non-parole period of ten years, would have expired on 20 May 1997 - perhaps more correctly 17 July 1997, the difference again being immaterial for present purposes. 22   His Honour reached the conclusion, based upon the decision of Barr J in Fenech 4 December 1997 unreported, that, in re-determining a life sentence, he was to take into account any offences or sentences imposed after the life sentence in order to ensure that the applicant served an appropriate sentence for the murder. It was upon that basis that he paid regard to the various offences noted above and to the sentences imposed in relation to them, as well as to the behaviour of the applicant while in custody. 23   His Honour expressly noted, consistent with the decision in Spinks, Court of Criminal Appeal, 7 August 1997 that the question of totality applied both to the minimum term and the additional term. As to the latter aspect, after noting the applicant's moral capability, his history of offending and his lack of remorse, his Honour concluded that the case was one requiring an additional term for the remainder of his life, because of the need for him to be carefully monitored when released.

Grounds of appeal:

24   It was submitted that his Honour fell into error in the approach taken so far as he relied upon Fenech. 25   In that case Barr J had said at page 18:

"I think in view of these authorities that the proper approach in re-determining a life sentence is to take into account subsequent offences and sentences not only for the purpose of ascertaining the applicant' stage of rehabilitation but in order to fashion a re-determined sentence which will ensure that the applicant does not go unpunished or insufficiently punished for offences for which he is sentenced after the life sentence. I think that the principle enunciated by Hunt CJ at CL in Regina v Purdey (1982) 65 A Crim R 441 applies to cases like this one just as it applies to life sentences which are imposed on prisoners already serving sentences.

26   But, if there was any doubt about this matter it has been removed, in my opinion, by the enactment by the Parliament of the 1997 amendments to the section. One of the changes was the insertion of sub-section (4A), which is as follows:

‘(4A) In considering such an application, the Supreme Court is to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time (so far as this information is reasonably available to the Supreme Court)’."

27   This approach has been applied by a number of Judges of this Court, at first instance, for example: Sales Studdert J, 7 November 1997; Robinson, Abadee J, 28 November 1997; Picknell Wood CJ at CL, 10 November 1998; Alexander, Kirby J, 1999, NSWSC 413; Gidley, Bell J 1999, NSWSC 498. 28   It was submitted, however, that it was a principle that had to be applied subject to the totality rule described in Thomas, Principles of Sentencing, 2nd ed (1979), pages 56-57, as approved by the High Court in Mill (1988) 166 CLR 59 at 63 in the following terms:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total just to see whether it looks wrong': 'when ... cases of multiplicity of offences come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.'"

29   It was submitted that his Honour erred, in adopting a mathematical exercise, and in then attempting to ensure that appropriate sentences were imposed in relation to each of the offences, in particular, in relation to the offence of murder for which the re-determination was to be carried out. 30   It is beyond question that the totality principle does apply to re-sentencing under section 13A. So much has been made clear by the decision of this Court in Gary James Boreland, Court of Criminal Appeal, 2 August 1994. I am unable to see any significant difference in the approach which was favoured by Barr J in Fenech and that approved in Mill and in Boreland - that is, so long as the principle expressed is understood as one which requires an assessment to be made of to the appropriate sentences for each offence, followed by a review of the manner in which the overall sentence is structured, including questions of concurrence or accumulation, in the light of the principle of totality. 31   That principle has been subject to examination in recent times by the High Court, in particular as to the manner in which it should be applied. In Pearce (1998), 156 ALR 684 at 694, McHugh, Hayne and Callinan JJ ,observed:

[45] "To an offender, the only relevant question may be 'how long', that may suggest that a sentencing Judge or appellate Court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

[46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

[47] Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.

[47] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences."

32   In accordance with the principle expressed in Mill as explained in Pearce, his Honour was required to consider what was an appropriate sentence for each of the offences and then to apply the totality principle to ensure that the criminality involved in all of them was appropriately but not doubly punished. 33   I am not persuaded that his Honour took any other approach, it being clear from the remarks on sentence, that his Honour had not overlooked the application of this principle. His Honour observed at one point, “I take into account the question of non-parole periods on the question of totality of sentence”. As I have observed previously, his Honour also expressly stated that “the question of totality not only applies to the minimum term but to the additional term”. 34   The sentencing exercise which his Honour had to take into account was, no doubt, complicated by the fact that the applicant had been sentenced to a series of sentences for offences both preceding and following the offence of murder. 35   By reason of section 13A(5)of the Sentencing Act 1989, it was necessary for his Honour to backdate the murder sentence to the date of the first remand. It was not possible for him to accumulate the sentence upon any of the other sentences. His Honour was, however, bound to take into account the sentences imposed by Gallen and Knight DCJJ, as well as the sentences he had imposed, back in 1987, for offences other than the murder, in order to undertake the exercise required by Pearce, and then to achieve a result which reflected the totality of the criminality. In so doing it was open to him to foreshorten the sentence for the offence of murder so as to achieve a total result that reflected all of the criminality involved, without any element of double punishment. 36   I am not persuaded, from a careful reading of his Honour's judgment, that he overlooked that principle. However, even if the matter were to be regarded afresh, I would not consider the sentencing order, which was in fact imposed, to have been manifestly excessive. When the totality of the criminality involved is taken into account including the fact that the applicant had been found guilty of, or had pleaded guilty to, one count of murder, one count of possess unlicensed pistol, four counts of larceny of motor vehicle, (including the offence of which he was also convicted at his murder trial), one count of armed robbery, one count of armed robbery in company, one count of being armed with intent, one count of possess means of disguise with intent, being armed, one count of escape, and one count of possess a shortened firearm, it is evident that the submission, in this regard, must fail. 37   The mere reciting of that litany of offences, in the light of the applicant’s criminal history, his subjective circumstances establishes, I would have thought, beyond question that this sentence was not manifestly excessive. 38   I would propose that, while leave to appeal should be granted, the appeal be dismissed.
39   NEWMAN J: I agree.
40   FOSTER AJ: I agree.
41   WOOD CJ at CL: The order of the Court will be as I propose.

**********