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R v Shadi Salameh

R v Shadi Salameh

Case [2017] NSWDC 138 8 June 2017

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Shadi Salameh [2017] NSWDC 138
Hearing dates: 23 March 2017
Decision date: 08 June 2017
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full time custodial sentence. For Orders see [154]

Catchwords: Knowingly facilitate organised car re-birthing activity (two offences); recklessly deal with proceeds of crime; parity in sentencing; aggregate sentence
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Motor Dealers and Repairers Act 2013 (NSW)
Weapons Prohibition Act 1998
Cases Cited: Cicciarello v R [2009] NSW CCA 272
Hajazi v R [2009] NSWCCA 282
Hello v R [2010] NSWCCA 311
Isaako v R [2012] NSWCCA 115
Le v R [2017] NSWCCA 26
Muldrock v R [2011] HCA 39
Pearce v R (1998) 194 CLR 610
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v Di Simone (1981) 147 CLR 383
R v Gibbons [2013] NSWCCA 166
R v Hamieh [2010] NSWCCA 189
R v Hello & Ors [2010] NSWCCA 331
R v Tannous [2012] NSWCCA 243
R v Tuuta [2014] NSWCCA 40
R v Van Ryn [2016] NSWCCA 1
Tan v R [2013] NSWCCA
Veen v R No. 2 (1998) 164 CLR
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Shadi Salameh (Offender)
Representation: Counsel:
S Makin (Crown)
B Walker SC with A Chhabra (Offender)

File Number(s): 11/27584715/27292116/5722516/157422
Publication restriction: Nil

REMARKS ON SENTENCE

The offender is charged with three offences:

H62829984/1 – knowingly facilitate organised car re‑birthing activity pursuant to s 154G of the Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment, and there is a Standard Non-Parole Period of 4 years.

H62005263/2 – recklessly deal with the proceeds of crime pursuant to s 193B(3) of the Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment.

H58863612/3 – knowingly facilitate organised car re-birthing activity pursuant to s 154G of the Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment, and there is a Standard Non-Parole Period of 4 years.

The sentence hearing took place on 23 March 2017. As at that time, the offender had spent 1 year and 1 month in custody as a result of the first of these offences which occurred between 14 January 2014 and 19 February 2016. The offender was arrested on 23 February 2016. The third offence took place between 14 January 2014 and 17 September 2015. Whilst on bail for that offence, the offender committed the first of these offences.
Also charged in relation to the first charge of knowingly facilitate organised car re‑birthing activity, were three co-offenders, Ali Nabulsi, Zacharigh Eid, and Shivneil Reddy. Nabulsi was sentenced by Judge Bennett of this court on 2 March 2017. He was sentenced to a non-parole period of 1 year and 9 months, and a total sentence of 3 years and 6 months. Reddy and Eid were subject to the same sentence hearing which took place on 23 March 2017. They…

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 Shadi Salameh

Details

AGLC: R v Shadi Salameh [2017] NSWDC 138
Case: [2017] NSWDC 138
Decision Date: 08 June 2017

CaseChat Overview and Summary

In the case of R v Shadi Salameh, the defendant was charged with multiple offences related to his involvement in organised car re-birthing activities. The dispute involved whether Salameh knowingly facilitated these activities and whether he recklessly dealt with the proceeds of these crimes. The case was heard in the Supreme Court of Victoria. The defendant pleaded guilty to two counts of knowingly facilitating organised car re-birthing activities, and one count of recklessly dealing with the proceeds of crime. The court was tasked with determining the appropriate sentence, with particular attention to ensuring parity in sentencing and the aggregate sentence.

The legal issues before the court included the principles of parity in sentencing, the nature and extent of Salameh's involvement in the criminal activities, and the appropriate aggregate sentence considering the multiple offences. The court had to consider the totality of Salameh's criminal conduct and the impact of his actions on the community. The defence argued for a lesser sentence, citing personal circumstances and the impact on Salameh's family. The prosecution, however, emphasised the seriousness of the offences and the need for a deterrent sentence.

The court, in its judgment, carefully weighed the aggravating and mitigating factors. It noted the severity of the offences, which involved not only illegal activities but also the handling of criminal proceeds. The court held that a full-time custodial sentence was necessary to reflect the gravity of Salameh's crimes and to ensure public protection. The judgment highlighted the importance of parity in sentencing, ensuring that similar crimes are met with consistent penalties. The court concluded that an aggregate sentence was appropriate, taking into account the totality of Salameh's criminal conduct. The final orders mandated a full-time custodial sentence, with specific details outlined in the judgment.

Orders

Orders of the court

Full time custodial sentence. For Orders see [154]

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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Citations

AGLC Citation

R v Shadi Salameh [2017] NSWDC 138

Most Recent Citation

Bresnahan v R [2022] NSWCCA 288

Cases citing this decision · 3 of 3 shown

R v FF
[2023] NSWCCA 186 Para 63

…R [2013] NSWCCA 298 at [18] (Blanch J, with whom Hoeben CJ at CL and Price J agreed); R v McGlone [2016] NSWDC 418 at [63] (King DCJ); R v Salameh [2017] NSWDC 138 at [136] (Mahony DCJ); R v Ogbeide [2021] NSWDC 750 at [32] (Williams DCJ). Proceeds of crime type charges by their nature tend to be difficult to dete…
Bresnahan v R
[2022] NSWCCA 288 Para 35

…v R [2013] NSWCCA 298 at [18] (Blanch J, with whom Hoeben CJ at CL and Price J agreed); R v McGlone [2016] NSWDC 418 at [63] (King DCJ); R v Salameh [2017] NSWDC 138 at [136] (Mahony DCJ); R v Ogbeide [2021] NSWDC 750 at [32] (Williams DCJ). Proceeds of crime type charges by their nature tend to be difficult to de…
R v Mercer
[2021] NSWDC 784 Para 56

…l sentences and I have specifically looked at a number of decisions of his Honour Judge Mahony SC included amongst which are the matter of R v Salome [2017] NSWDC 138, R v Eid similarly a decision of Judge Mahony SC [2017] NSWDC 76 and references in those decisions to related results both before Judge Mahony and be…

View all 3 citing cases →

Cases cited in this decision · 18 of 18 shown

R v Holder
[2019] SASCFC 73

…“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not in…
Le v R
[2017] NSWCCA 26 Para 146

…Recently, in Le v R [2017] NSWCCA 26, the Court of Criminal Appeal set out the following statements of principle per Hoeben CJ at CL (Walton and Latham JJ agreeing) at [35]:…
R v Van Ryn
[2016] NSWCCA 1 Para 151

…In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:…
R v Tuuta
[2014] NSWCCA 40 Para 89

…is allowed a longer period on parole, that rehabilitation is likely to be successful, and that this is not merely a possibility, relying on R v Tuuta [2014] NSWCCA 40 at [57].…
R v Gibbons
[2013] NSWCCA 166 Para 88

…second and subsequent offences will be met with significant punishment where the importance of deterrence is heightened, relying on R v Gibbons [2013] NSWCCA 166.…
R v Tannous
[2012] NSWCCA 243 Para 99

…In assessing the objective seriousness of the offending, the offender referred to the three integers identified in R v Tannous [2012] NSWCCA 243, per Basten JA at [40] as follows:…
Isaako v The Queen
[2012] NSWCCA 115 Para 88

…ight of an offence committed earlier in time – particularly where the second offence reflects an escalation in offending, relying on Isaako v R [2012] NSWCCA 115, and Tan v R [2013] NSWCCA. The commission of second and subsequent offences will be met with significant punishment where the importance of deterrence is…
Muldrock v The Queen
[2011] HCA 39 Para 113

…between the offender’s mental health and the offending, or that his moral culpability should be moderated in the manner considered in Muldrock v R [2011] HCA 39. Rather, the diagnoses highlighted the fact that the offender participated in the offending to feed his drug and gambling addictions, and are therefore…
R v Nguyen
[2010] NSWCCA 331 Para 85

…d out more than once, and involves more than one offender, and is carried out for profit or gain, the offence is made out, relying on R v Hello & Ors [2010] NSWCCA 331 at [30].…
Hello v R
[2010] NSWCCA 311 Para 106

…In Hello v R [2010] NSWCCA 311, the Court of Criminal Appeal had characterised a re-birthing activity that involved 20 vehicles and had traversed several months, as “substantially above the mid-range of objective gravity”. At least some of those cars had been sold to members of the public and presumably were operate…
R v Hamieh
[2010] NSWCCA 189 Para 103

…The offender relied on the Court of Criminal Appeal’s decision in R v Hamieh [2010] NSWCCA 189, in which the Court dealt with an offence concerning two vehicles, considerable planning, enterprise and purpose, and financial motive. The Court assessed the offending conduct to lie “about half-way between the lowest end…
Hejazi v R
[2009] NSWCCA 282 Para 112

…The offender relied on Hajazi v R [2009] NSWCCA 282, and Cicciarello v R [2009] NSW CCA 272. In respect of one vehicle there was no financial motive. That concerned vehicle number 3 in the Milperra offence, which the offender intended to keep as a “track car”.…
Cahyadi v R
[2007] NSWCCA 1 Para 152

…public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:…
Pearce v The Queen
[1998] HCA 57

…2 Hajazi v R [2009] NSWCCA 282 Hello v R [2010] NSWCCA 311 Isaako v R [2012] NSWCCA 115 Le v R [2017] NSWCCA 26 Muldrock v R [2011] HCA 39 Pearce v R (1998) 194 CLR 610 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Di Simone (1981) 147 CLR 383 R v Gibbons [2013] NSWCCA 166 R v Hamieh [2010] NSWCCA 189 R v Hello & Or…
Postiglione v the Queen
[1997] HCA 26

…regard to the different circumstances of the co-offenders in question and their different degrees of criminality.” ( Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301-302 per Dawson and Gaudron JJ).…
Veen v The Queen (No 2)
[1988] HCA 14 Para 135

…I have regard to what the High Court said in Veen v R (No. 2) (1998) 164 CLR 465 at 477 where the plurality said:…
R v De Simoni
[1981] HCA 31 Para 110

…It was submitted that the offences, contrary to s 154G of the Crimes Act 1900 , were more serious, and that being so, the principle in R v Di Simone (1981) 147 CLR 383, required the Court to disregard any notion that 21 vehicles were used in or being prepared for car re-birthing.…
Lowe v R
[1984] HCA 46

…requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them (see Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610-611, per Mason J). In the case of co-offenders, different sentences may reflect different degrees of culpability or their different…

Legislation cited in this decision · 4

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 65)
Crimes Act 1900 (ACT)
1 mention (from Para 1)
Motor Dealers and Repairers Act 2013 (NSW)
1 mention (from Para 20)
Weapons Prohibition Act 1998 (NSW)
1 mention (from Para 67)

Medium Neutral Citation:	R v Shadi Salameh [2017] NSWDC 138
Hearing dates:	23 March 2017
Decision date:	08 June 2017
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For Orders see [154]
Catchwords:	Knowingly facilitate organised car re-birthing activity (two offences); recklessly deal with proceeds of crime; parity in sentencing; aggregate sentence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Motor Dealers and Repairers Act 2013 (NSW) Weapons Prohibition Act 1998
Cases Cited:	Cicciarello v R [2009] NSW CCA 272 Hajazi v R [2009] NSWCCA 282 Hello v R [2010] NSWCCA 311 Isaako v R [2012] NSWCCA 115 Le v R [2017] NSWCCA 26 Muldrock v R [2011] HCA 39 Pearce v R (1998) 194 CLR 610 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Di Simone (1981) 147 CLR 383 R v Gibbons [2013] NSWCCA 166 R v Hamieh [2010] NSWCCA 189 R v Hello & Ors [2010] NSWCCA 331 R v Tannous [2012] NSWCCA 243 R v Tuuta [2014] NSWCCA 40 R v Van Ryn [2016] NSWCCA 1 Tan v R [2013] NSWCCA Veen v R No. 2 (1998) 164 CLR
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Shadi Salameh (Offender)
Representation:	Counsel: S Makin (Crown) B Walker SC with A Chhabra (Offender)
File Number(s):	11/27584715/27292116/5722516/157422
Publication restriction:	Nil