R v Saleh - [2023] NSWDC 444

District Court

New South Wales

Medium Neutral Citation: R v SALEH [2023] NSWDC 444
Date of orders: 20 October 2023
Decision date: 20 October 2023
Jurisdiction: Criminal
Before: Everson SC, DCJ
Decision:
For the offences that are counts 2-16 on the indictment dated 13 June 2023 and the related offences on the s166 certificate dated 6 September 2021:
a) You are sentenced to an aggregate term of imprisonment of 26 years commencing on 24 May 2021 and expiring on 23 May 2047;
b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a non-parole period of 18 years is set. It expires on 23 May 2039.
I vary the sentence imposed for the appealed stalking offence, as follows:
a) You are sentenced to a minimum term of 11 months and an additional term of 5 months. This sentence will commence on 24 October 2038.
b) Therefore, the non-parole period for the appealed stalking offence will expire on 23 September 2039 and the additional term will expire on 23 February 2040.
Accordingly, the earliest date that you will be eligible to be released on parole is 23 September 2039.

Category: Sentence
Parties: DPP
Ahmed Mahdi SALEH (Defendant)
Representation:
Y Prowse (Crown)
M Coroneos (Defence)

File Number(s): 2020/355946

JUDGMENT ON SENTENCE

Introduction

On 5 July 2023, a jury of twelve returned verdicts of guilty on the 2^nd through to and including the 16^th counts on the indictment upon which he was presented for trial three weeks earlier. He was convicted of those offences.
The following day, Ahmed Mahdi SALEH was acquitted of the 1^st indictment count.
In addition to the 15 counts on indictment, Mr SALEH is also to be sentenced for five related offences, transferred to this Court, pursuant to s.166 of the Criminal Procedure Act 1986. That is a consequence of this Court finding him guilty of those related offences on 22 September 2023.
The offences on indictment and the five related offences, were committed against the same, now 34-year-old female victim, during the time spanning from early August 2016 to 15 December 2017.
There are three offences of common assault, contrary to section 61 of the Crimes Act, namely counts 6, 7 & 16. Each common assault has a maximum penalty of imprisonment for 2 years.
There are five offences of assault occasioning actual bodily harm (AOABH), contrary to section 59 of the Crimes Act, namely counts 9, 10, 13, 14, 15. Each AOABH offence has a maximum penalty of imprisonment for 5 years.
There are two offences of sexual assault, contrary to section 61I of the Crimes Act, namely counts 2 & 8. Each sexual assault offence has a maximum penalty of imprisonment for 14 years and a Standard Non-Parole Period (“SNPP”) of 7 years.
There are five offences of aggravated sexual assault, contrary to section 61J of the Crimes Act, namely, counts 3, 4, 5, 11, & 12. Each aggravated sexual assault has a maximum penalty of imprisonment…

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 Saleh

Details

AGLC: R v Saleh [2023] NSWDC 444
Case: [2023] NSWDC 444
Decision Date: 20 October 2023

CaseChat Overview and Summary

In the case of R v Saleh, the defendant faced a series of charges that included offences against the Crimes (Sentencing Procedure) Act 1999 (NSW). The defendant was convicted on counts 2-16 of an indictment dated 13 June 2023, as well as related offences mentioned on a s166 certificate dated 6 September 2021. The court was tasked with sentencing the defendant for these multiple offences, which involved serious criminal conduct warranting a significant custodial term.

The primary legal issue before the court was determining an appropriate aggregate term of imprisonment, along with the non-parole period, for the defendant's multiple offences. The court also had to address the sentence for the appealed stalking offence, which required separate consideration due to its specific nature and the defendant's appeal against the original sentencing.

The court deliberated on the severity and nature of the offences, the defendant's criminal history, and the principles of sentencing as outlined in the relevant legislation. In arriving at the sentence, the court applied the statutory provisions and took into account the cumulative impact of the offences. The court set an aggregate term of imprisonment of 26 years, with a non-parole period of 18 years. For the appealed stalking offence, the court varied the original sentence to a minimum term of 11 months and an additional term of 5 months, resulting in a non-parole period expiring on 23 September 2039 and an overall term expiring on 23 February 2040. This detailed approach ensured that the sentencing reflected the gravity of the offences and the need for public protection.

Orders

Orders of the court

For the offences that are counts 2-16 on the indictment dated 13 June 2023 and the related offences on the s166 certificate dated 6 September 2021:

a) You are sentenced to an aggregate term of imprisonment of 26 years commencing on 24 May 2021 and expiring on 23 May 2047;

b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a non-parole period of 18 years is set. It expires on 23 May 2039.

I vary the sentence imposed for the appealed stalking offence, as follows:

a) You are sentenced to a minimum term of 11 months and an additional term of 5 months. This sentence will commence on 24 October 2038.

b) Therefore, the non-parole period for the appealed stalking offence will expire on 23 September 2039 and the additional term will expire on 23 February 2040.

Accordingly, the earliest date that you will be eligible to be released on parole is 23 September 2039.

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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Medium Neutral Citation:	R v SALEH [2023] NSWDC 444
Date of orders:	20 October 2023
Decision date:	20 October 2023
Jurisdiction:	Criminal
Before:	Everson SC, DCJ
Decision:	For the offences that are counts 2-16 on the indictment dated 13 June 2023 and the related offences on the s166 certificate dated 6 September 2021: a) You are sentenced to an aggregate term of imprisonment of 26 years commencing on 24 May 2021 and expiring on 23 May 2047; b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a non-parole period of 18 years is set. It expires on 23 May 2039. I vary the sentence imposed for the appealed stalking offence, as follows: a) You are sentenced to a minimum term of 11 months and an additional term of 5 months. This sentence will commence on 24 October 2038. b) Therefore, the non-parole period for the appealed stalking offence will expire on 23 September 2039 and the additional term will expire on 23 February 2040. Accordingly, the earliest date that you will be eligible to be released on parole is 23 September 2039.
Category:	Sentence
Parties:	DPP Ahmed Mahdi SALEH (Defendant)
Representation:	Y Prowse (Crown) M Coroneos (Defence)
File Number(s):	2020/355946