R v Salieb

Case [2005] NSWCCA 85

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Saleib [2005]  NSWCCA 85

FILE NUMBER(S):
2004/3219

HEARING DATE(S):               14/3/05

JUDGMENT DATE: 29/03/2005

PARTIES:
Farid Saleib (Applicant)
Regina (Respondent)

JUDGMENT OF:       Adams J Bell J Hall J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/21/1156 & 04/21/1002

LOWER COURT JUDICIAL OFFICER:     Knight DCJ

COUNSEL:
J Girdham (Crown)
P Lakatos / K Avenell (Applicant)

SOLICITORS:
S Kavanagh
S O'Connor (Applicant)

CATCHWORDS:

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
1. Grant leave to appeal
2. Dismiss the appeal

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/3219

ADAMS J
BELL J
HALL J

Tuesday 29 March 2005

Regina v Farid Saleib

Judgment

  1. ADAMS J:  I agree with Bell J.

  2. BELL J:  This is an application for leave to appeal against the severity of sentences imposed on the applicant by his Honour Judge Knight (the Judge) in the District Court at Penrith on 5 March 2004 (as corrected with respect to the specification of the non-parole period for the offence charged in count 2 by order made on 9 March 2004).

  1. The applicant pleaded guilty in the Local Court to each of the offences. The first offence charged the applicant that on 8 December 2002 at Sydney he robbed Mario Figueroa of a mobile telephone and forty-five dollars in cash while in company with four named co-offenders. The maximum penalty for this offence is twenty years’ imprisonment.

  2. The second offence, assault occasioning actual bodily harm in company, concerned events occurring on 20 December 2002 at Blacktown. The maximum sentence for this offence is one of seven years’ imprisonment.

  3. In relation to the first count the applicant asked the Judge under the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999 to take into account two related offences of robbery in company set out in a Form 1.

  4. At the date of sentence the applicant was serving sentences that had been imposed on him in the Sydney District Court on 27 August 2003 following his conviction for three offences of robbery in company. He had been sentenced to concurrent terms of five years’ imprisonment to date from 19 March 2003 for these offences. A non-parole period of three years was specified in each case.

  5. The applicant was sentenced to a term of five years’ imprisonment for the offence charged in count 1, taking into account the two robbery in company offences on the Form 1. The sentence was expressed to commence on 19 March 2005. A non-parole period of three years was specified for this offence. This sentence will expire on 18 March 2010. The non-parole period will expire on 18 March 2008.

  6. The applicant was sentenced to a term of four years’ imprisonment to date from 18 March 2008 for the offence charged in count 2. This sentence will expire on 17 March 2012. A non-parole period of one year was specified with respect to this offence. The non-parole period will expire on 17 March 2009.

  7. The…

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Details
AGLC
R v Salieb [2005] NSWCCA 85
Case
[2005] NSWCCA 85
Decision Date

CaseChat Overview and Summary

The case of R v Salieb involved the applicant challenging aspects of his sentence imposed by the Supreme Court of New South Wales. The primary dispute centred on the manner in which the sentencing judge had assessed the appropriate term for the offence of robbery in company, as well as the consideration of certain factors pertaining to public safety. The High Court of Australia was tasked with evaluating the grounds of appeal presented by the applicant, specifically focusing on whether the trial judge had erred in his application of relevant legal principles and sentencing guidelines.

The legal issues before the court were whether the trial judge had erred in failing to consider the guideline judgment in Henry, in relation to the offence of robbery in company, and whether the judge had misidentified matters relating to public safety and incorrectly treated them as factors aggravating the sentence for the assault occasioning actual bodily harm. The applicant argued that the trial judge should have applied a discount to the sentencing range due to his early plea of guilty and that there was no sufficient evidentiary basis to conclude that the assault was committed without regard for public safety.

In addressing these issues, the court found that the trial judge's starting point of around six years for the robbery in company was well within the bounds of sound discretion. The court held that the Henry guideline was not applicable as the applicant had a significant criminal history, and the judge had correctly identified factors that warranted a higher starting point. Regarding the public safety consideration, the court noted that the applicant's motivation and understanding, which demonstrated a heedless disregard for the consequences of his actions, supported the trial judge’s identification of the offence as one committed without regard for public safety.

The court rejected both grounds of appeal, affirming that the trial judge had correctly exercised his discretion and appropriately considered the relevant factors in determining the sentence. The reasoning provided by the court underscored the importance of tailoring the sentence to the individual circumstances of the offender, taking into account their criminal history and the specific nature of the offence. The trial judge’s assessment was upheld as being within the bounds of reasonable judicial discretion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ADAMS J
I would reject ground two. Ground three – His Honour erred in failing to consider and apply the guideline judgment in Henry (1999) 46 NSWLR 346 in relation to the offence of robbery in company The Judge did not refer to the guideline judgment in Henry in the course of his reasons. The applicant notes that the guideline applies to offences of robbery in company as well as to those s 97(1) offences involving the use of a weapon: Murchie (1999) 108 A Crim R 424 per Simpson J at paragraph [20]. While counsel realistically acknowledged that the present case differs from the paradigm in the guideline, it was contended that the facts and circumstances of the principal offence (and the two matters taken into account on the Form 1) were sufficiently similar to the guideline to make it appropriate for his Honour to take it into account. Counsel noted that the sentence range given in the guideline is a head sentence of four to five years in a case in which there is a late plea of guilty (Thomson at 419, [161]). Thus, it was submitted, the applicant was entitled to a fifteen percent discount from the starting range in recognition that his plea had been entered at the earliest reasonable opportunity. From this it was said to follow that the appropriate starting term for the robbery in company offence was in the range of three years five months to four years three months. To my mind there is no substance to this ground. The Henry guideline posits a young offender with little or no criminal history. This was a young offender with a lengthy criminal history who had served periods of custody in both juvenile and adult institutions. The commission of the subject offence might be characterised as having manifested the applicant’s continuing attitude of disobedience to the law: Veen v R(No. 2) (1988) 164 CLR 465 at 477. The applicant was at the time of the commission of the offence the subject of three bonds under s 9 of the Crimes (Sentencing Procedure) Act. This was a significant factor aggravating the commission of the offence: R v Fernando (2002) NSWCCA 28 at [40] – [42]. Additionally, the Judge was required to take into account the two related offences on the Form 1. It was necessary for the Judge to have as his starting point a sentence above the range indicated in the Henry guideline. His Honour’s starting point of around six years was well within the exercise of sound discretion. I would reject ground three.Ground four – His Honour erred in his identification of matters going to “regard for public safety” and in his treatment of this as a factor in aggravation of the sentence for the assault occasioning actual bodily harm The applicant contends that the Judge’s finding that the assault occasioning actual bodily harm was committed without regard for public safety for the purposes of s 21A(2)(i) was questionable and that, in any event, there was no evidentiary basis to admit of this circumstance being found beyond reasonable doubt. In written submissions, the applicant points to the discussion of subsection (2)(i) in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 198, [172]:“We also consider that it was appropriate for his Honour to have regard of the offence as one committed without regard for public safety (another s 21A(2) factor). The applicant was not to know that the buyer was an undercover operative and that the drugs would be seized and destroyed. What was relevant in this context was his motivation or understanding, so far as that went to an assessment of his moral culpability. He undertook the transaction expecting a considerable personal profit, and in the understanding that the drugs would be re-sold, heedless of the consequences of those who purchased and consumed them, or of the fact that users commonly resort to property offences to feed a habit, leaving other victims in their wake. The observations of Smart AJ in R v Chan [1999] NSWCCA 103 at [21] as to the limited relevance of the fact that drugs which are supplied to undercover agents will not reach the community, apply. As his Honour pointed out, that circumstance was not due to any act of the offender” (emphasis added).The discussion of the application of subsection (2)(i) in Way was in the context of the offence of supplying prohibited drugs in a case in which the public safety had not as a matter of fact been endangered. That the dissemination of prohibited drugs into the community puts the public safety at risk was not in issue.

Ratio Decidendi

Legal Principle Established

Established by: ADAMS J

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