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Salah v R

Salah v R

Case [2009] NSWCCA 2 2 February 2009

Objectively Serious Offence

Allowance for Provocation and Protective Custody

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: SALAH, Dror v R [2009] NSWCCA 2

HEARING DATE(S): 2 October 2008

JUDGMENT DATE:
2 February 2009

JUDGMENT OF: Bell JA at 1; Rothman J at 2; Price J at 45

DECISION:
(i) Leave to appeal be granted;
(ii) The appeal against the sentence imposed by his Honour Johnson J be allowed only to the extent necessary to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999;
(iii) The sentence imposed by Johnson J on Mr Dror Salah on 4 April 2008 be quashed and in lieu thereof Mr Salah be sentenced for the manslaughter of Hernan Dario Guelman to a non-parole period of 5 years and 9 months commencing 7 August 2006 and expiring on 6 May 2012 with the balance of term of 3 years expiring on 6 May 2015. Mr Salah remains first eligible for parole on 6 May 2012;
(iv) Otherwise the appeal be dismissed.

CATCHWORDS: CRIMINAL LAW – appeal – sentencing – discount for plea – manifest excess – finding of fact – objectively serious offence – allowance for provocation and protective custody – sentence within range – re-sentence to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999, otherwise appeal dismissed

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v Ahmad [2006] NSWCCA 177
R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported)
R v Dodd (1991) 57 A Crim R 349
R v Edwards (1996) 90 A Crim R 510
R v Harmouche [2005] NSWCCA 398; (2005) 158 A Crim R 357
R v Hill (1981) 3 A Crim R 397
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104
R v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

PARTIES: Dror Salah (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/00002476

COUNSEL: A J Bellanto QC (Applicant)
P M MIller (Respondent)

SOLICITORS: Uther Webster & Evans (Applicant)
Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2007/2476

LOWER COURT JUDICIAL OFFICER: Johnson J

LOWER COURT DATE OF DECISION: 4 April 2008

LOWER COURT MEDIUM NEUTRAL CITATION: R v Dror Salah; R v Ezra Salah [2008] NSWSC 311

2007/00002476

BELL JA
ROTHMAN J
PRICE J
2 FEBRUARY 2009

SALAH, Dror v R

Judgment

1 BELL JA: I agree with Rothman J.

2 ROTHMAN J: Mr Dror Salah seeks leave to appeal the sentence imposed upon him for manslaughter by Johnson J on 4 April 2008. Justice Johnson sentenced Mr Salah to a non-parole period of 5 years and 9 months with the remainder of sentence of a further 3 years.

3 Mr Salah pleaded guilty to manslaughter, having been indicted for murder, on the sixth day of the trial,…

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 Salah v R

Details

AGLC: Salah v R [2009] NSWCCA 2
Case: [2009] NSWCCA 2
Decision Date: 2 February 2009

CaseChat Overview and Summary

The appellant, Salah, appealed against his conviction and sentence for an offence committed in the Supreme Court of New South Wales. Salah had been convicted of an objectively serious offence, and the appeal focused on the sentence imposed, specifically the discount for a plea of guilty and the overall severity of the punishment. The Court of Criminal Appeal was tasked with determining whether the original sentence was manifestly excessive and if the sentence imposed complied with statutory requirements.

The court considered whether the original sentence was manifestly excessive and whether the trial judge had erred in the application of the discount for Salah's plea of guilty. It also examined if the judge had appropriately considered the circumstances of provocation and the need for protective custody. Additionally, the court scrutinised whether the sentence was within the range of appropriate penalties for the offence and whether the overall punishment was proportionate to the crime.

The Court of Criminal Appeal found that while the trial judge had made an error in the application of the discount for the plea of guilty, this did not render the sentence manifestly excessive. The court noted that the judge had adequately considered the circumstances of provocation and the need for protective custody, and the overall sentence was within the appropriate range. However, the court determined that the sentence did not fully comply with section 44 of the Crimes (Sentencing Procedure) Act 1999, necessitating a re-sentencing. The appeal was dismissed in all other respects. The court ordered a re-sentencing to ensure compliance with the statutory requirements, maintaining the conviction but adjusting the sentence to align with legislative provisions.

Orders