R v Saleh - [2023] NSWDC 645

District Court

New South Wales

Medium Neutral Citation: R v Saleh [2023] NSWDC 645
Hearing dates: 27 June, 25 September 2023
Date of orders: 25 September 2023
Decision date: 25 September 2023
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
See pars [25]-[26].

Catchwords:
CRIME – APPEAL – Common Assault on a female and assault occasioning actual bodily harm on male – “Road rage” offences resulting from queuing up to be tested for COVID-19 during pandemic – Prior sentence imposed below replaced with ICO requiring home detention.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v Saleh; R v Salim [2023] NSWLC 2
Stanley v DPP (NSW) [2023] HCA 3
Zheng v Rex [2023] NSWCCA 64 at [290]

Texts Cited:
Nil.

Category: Principal judgment
Parties: Crown – R (NSW)
Appellant – Hessein Saleh
Representation:
Counsel:
Crown – Gourlie, K.
Appellant – James, G. KC.
Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW).
Appellant – One Group Legal.

File Number(s): 2021/00367861
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Citation:

[2023] NSWLC 2

Date of Decision:

12 May 2023

Before:

Magistrate Donnelly

Judgment

HIS HONOUR: This is an appeal against severity of a sentence passed by Magistrate Donnelly sitting in the Local Court at Sutherland on 12 May 2023. The appellant pleaded guilty to two offences. The first offence is known as Sequence 3 and was an allegation that on 28 December 2021 at Carlton he did assault Geovana Chavez Quesada. The second offence is known as Sequence 7 and was an allegation that on 28 December 2021 at Carlton he did assault Alexander Leon thereby occasioning actual bodily harm to him.
The appellant pleaded guilty to each offence. It is common ground that he is entitled to a discount of 25% on the proper sentence to be passed upon him for each of those offences.
Magistrate Donnelly imposed an aggregate sentence. The aggregate sentence was for a period of one year and ten months with a non-parole period of one year and two months. The indicative sentence for Sequence 3 was eight months imprisonment and the indicative sentence for Sequence 7 was 20 months imprisonment.
There was a contest about circumstances surrounding the commission of the offences. At around 10am on Tuesday, 28 December 2021 Mr Leon and Ms Quesada were in a Toyota Prado motor vehicle, registered number BNJ 45D in a queue awaiting a COVID test at a drive‑in premises on the corner of the Princes Highway and Ecole Street at Carlton. There was a queue of traffic on the Princes Highway at Carlton stretching south from the corner of Ecole Street and the highway.
At the relevant time the victims had been waiting in the queue for between three and four hours. As the victims approached the intersection of O’Meara Street and the Princes Highway at Carlton, two blocks from the intersection of the Princes Highway and Ecole Street, a Lexis motorcar registered number CXT 52V entered the queue…

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 645
Case: [2023] NSWDC 645
Decision Date: 25 September 2023

CaseChat Overview and Summary

The appellant, Saleh, was convicted of common assault on a female and assault occasioning actual bodily harm on a male, following a series of incidents in a queue at a COVID-19 testing site. The lower court imposed a sentence, which Saleh appealed on the basis of its severity and the court's failure to consider appropriate alternative sentencing options. The appeal centred on whether the sentence was manifestly inadequate or excessive, and whether the court had failed to consider suitable alternatives to imprisonment, such as an intensive correction order (ICO).

The court examined the principles governing the sentencing of offenders in cases of serious violence, including the need to balance the interests of justice with public safety. The court noted the nature of the offences, which occurred in the context of road rage during the COVID-19 pandemic, and the appellant's otherwise good character and lack of prior convictions. The court concluded that the original sentence was manifestly inadequate, as it did not reflect the seriousness of the offences or adequately deter the appellant from future offending. Additionally, the court found that the lower court had failed to adequately consider alternative sentencing options, such as an ICO requiring home detention, which would better serve the interests of justice and public safety.

In light of the foregoing, the appeal was allowed, and the sentence imposed by the lower court was quashed. The court imposed an ICO requiring home detention for a period of six months, with various conditions designed to ensure the appellant's rehabilitation and compliance with the order. The court also made orders for the appellant to participate in specified programs and counselling, and to pay compensation to the victims. The court emphasised the importance of considering alternative sentencing options in appropriate cases, particularly where the offender has no prior criminal history and the offences were committed in a unique context, such as during a pandemic.

Orders

Orders of the court

See pars [25]-[26].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Saleh [2023] NSWDC 645
Hearing dates:	27 June, 25 September 2023
Date of orders:	25 September 2023
Decision date:	25 September 2023
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See pars [25]-[26].
Catchwords:	CRIME – APPEAL – Common Assault on a female and assault occasioning actual bodily harm on male – “Road rage” offences resulting from queuing up to be tested for COVID-19 during pandemic – Prior sentence imposed below replaced with ICO requiring home detention.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Saleh; R v Salim [2023] NSWLC 2 Stanley v DPP (NSW) [2023] HCA 3 Zheng v Rex [2023] NSWCCA 64 at [290]
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Crown – R (NSW) Appellant – Hessein Saleh
Representation:	Counsel: Crown – Gourlie, K. Appellant – James, G. KC. Solicitors: Crown – Office of the Director of Public Prosecutions (NSW). Appellant – One Group Legal.
File Number(s):	2021/00367861
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Citation: [2023] NSWLC 2 Date of Decision: 12 May 2023 Before: Magistrate Donnelly