R v Salim

[2023] NSWDC 646

District Court

New South Wales

Medium Neutral Citation:

R v Salim [2023] NSWDC 646

Hearing dates:

15 December 2023

Date of orders:

15 December 2023

Decision date:

15 December 2023

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See pars [15] and [18].

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:

Nil.

Cases Cited:

R v Saleh; R v Salim [2023] NSWLC 2

R v Saleh [2023] NSWDC 645

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Crown – R (NSW)
Appellant – Ali Salim

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):

2021/00367860

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

1. HIS HONOUR: This is an appeal from a decision made by Magistrate Donnelly, sitting in the Local Court at Sutherland on 12 May 2023.

2. His Honour’s decision may be found at R v Saleh; R v Salim [2023] NSWLC 2. I have previously dealt with the appeal brought by Mr Saleh. I made orders in his case on Monday, 25 September 2023, and gave my reasons for making that decision at that time. Unfortunately, they have not yet been transcribed. However, I will rely upon them in this case to avoid having to repeat what I said previously. At the time of revising my ex tempore judgment those reasons have become available: R v Saleh [2023] NSWDC 645.

3. In the appeal of Mr Saleh, I accepted the indicative sentences for each of the two offences committed by that offender, as fixed by the learned Magistrate and I also maintained the aggregate sentence fixed by the learned Magistrate. His Honour sentenced Mr Saleh to imprisonment for a period of 22 months and fixed a non-parole period of 14 months.

4. I set aside the order for imprisonment and imposed an intensive corrections order for a period of 22 months which, inter alia, required Mr Saleh to serve a period of home detention for the first 14 months of the sentence, and I also required him to complete community service work for 150 hours. There were, of course, the compulsory two conditions of the order that he must not commit any offence and that he was subject to supervision by a community corrections officer.

5. I could not deal with Mr Salim’s case at that time because there was no sentencing assessment report commenting upon the suitability of Mr Salim for home detention.

6. Very shortly I should point out that the facts arose out of what might be thought to be a ‘’road rage incident’’ occurring when a car being driven by Mr Saleh’s wife was thought by the occupants of another car to be jumping a queue. The occupants of that car remonstrated with Mr Saleh’s wife and otherwise annoyed or harassed her by beeping the horn of the other persons car continuously at Mr Saleh’s wife’s car. She had in her car, as a passenger, her young daughter and her elderly mother. She made a complaint to Mr Saleh, her husband, about what was happening to her, and Mr Saleh drove a vehicle to the scene of the confrontation. He recruited Mr Salim into his activity and Mr Saleh then assaulted the male in the other vehicle, Mr Alexander Leon, and occasioned actual bodily harm to him, in that he was accompanied by Mr Salim.

7. Mr Saleh also committed the crime of common assault upon the female in the other car, Ms Geovana Quesada. That was merely a common assault. Again, Mr Salim participated in that crime. It is clear from what the learned Magistrate found that the criminality of Mr Saleh was much greater than the criminality of Mr Salim, particularly in the assault occasioning actual bodily harm on Mr Leon, and also in the common assault on Ms Quesada.

8. The two paragraphs of his Honour’s reasons for judgment concerning their respective criminality are these:

“53. These aggravating circumstances, particularly the very high degree of violence and sustained attack, which included stomping, warrant a finding that the assault occasioning in actual bodily harm offence committed by Mr Saleh falls at the upper end of the range of seriousness. The offence committed by Mr Salim fell above the middle of the range. His conduct did not include stomping but his crime was serious because he inflicted closed fist punches to back of the head of the victim in the confined space of a motor vehicle.

54. The assault offence committed by each defendant on a defenceless woman in the confines of a car is also serious. Again the victim came to the aid of her partner, but was assaulted by the punches, and later stomping, by Mr Saleh. She was assaulted from the back of the car and via the sunroof. Mr Saleh’s crime is worse because he used his feet and was stomping, as the CCTV shows.”

9. For the indicative sentence for the assault occasioning actual bodily harm on Mr Leon was, for Mr Saleh, 20 months, and the indicative sentence for the common assault on Ms Quesada was 8 months. Those are the indicative sentences that I maintained in Mr Saleh’s appeal.

10. For Mr Salim, the learned Magistrate fixed an indicative sentence of 15 months for the assault occasioning in actual bodily harm on Mr Leon and an indicative sentence of 7 months for the common assault on Ms Quesada, as far as the current Appellant, Mr Salim, is concerned. However, in my view, his criminality was less serious than Mr Saleh, as the learned Magistrate found, and in my view the indicative sentences for Mr Salim were too high. In my view the appropriate indicative sentence for Mr Salim was 12 months for the assault occasioning actual bodily harm, and 6 months for the common assault on Ms Quesada.

11. In Mr Salim’s case the learned Magistrate imposed an aggregate sentence of 18 months, but 18 months is the total of the two indicative sentences in which I have fixed. I believe the appropriate aggregate sentence in this case is 14 months.

12. The Magistrate went on to fix, in Mr Salim’s case, a non-parole period of 11 months but were I fixing a non-parole period I would have fixed it at 10 months.

13. Mr Salim has now been certified as being suitable for the imposition of home detention. Home detention is not something that the learned Magistrate considered, because he did not have any Sentencing Assessment Report before him which considered that option.

14. There is currently major debate in the Court of Criminal Appeal as to whether one can take into account the fact that an intensive corrections order may not be imposed because it is seen as being punishment that is ‘too light’. That is in essence what the learned Magistrate found in this case but as I said he did not consider the option of home detention.

15. Like Mr Saleh, I will approach Mr Salim’s appeal in a similar fashion. For those reasons I set aside the sentence imposed by the local court at Sutherland on 12 May 2023.

16. I fix the following indicative sentences:

Sequence 2: Common assault of Chavez Quesada, 6 months.

Sequence 6: Assault occasioning in actual bodily harm on Alexander Leon, 12 months.

I fix an aggregate sentence of 14 months.

17. Those indicative sentences are inclusive of the discount for the offender’s plea of guilty, just as were the indicative sentences fixed by the learned Magistrate.

18. Ali Salim, I sentence you to imprisonment for a term of 14 months commencing today, 15 December 2023, to be served by way of intensive correction in the community. Terms of the order are:

Term 1: You must not commit any offence;

Term 2: You must submit to supervision by a Community Corrections Officer;

Term 3: You are subject to home detention for the initial 10 months of the sentence. You are to report to the Community Corrections Office at Sutherland by telephone before the close of business today, 15 December 2023.

19. Are there any other orders sought?

20. GOURLIE: No your Honour

21. JAMES: No your Honour.

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