Salah v The Queen
[2008] NSWCCA 170
•2 June 2008
New South Wales
Court of Criminal Appeal
CITATION: Salah v R [2008] NSWCCA 170 HEARING DATE(S): 2 June 2008 JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 12; Hidden J at 13 EX TEMPORE JUDGMENT DATE: 2 June 2008 DECISION: 1. Allow the appeal.
2. Quash the non-parole period imposed by Johnson J and in lieu thereof impose a non-parole period of one year, nine months and twenty-five days with that non-parole period expiring 2 June 2008.
3. Make an order directing the release of the applicant at the completion of his non-parole period which would expire at midnight 2 June 2008.CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - accessory after the fact to manslaughter - guilty plea entered during trial - whether discount for guilty plea excessively low - whether sentence manifestly excessive CATEGORY: Principal judgment PARTIES: Ezra Salah (Applicant)
The CrownFILE NUMBER(S): CCA 2007/2477 COUNSEL: S Odgers SC (Applicant)
J Dwyer (Crown)SOLICITORS: Uther Webster & Evans (Applicant)
Director for Public Prosecutions (Crown)LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2007/2477 LOWER COURT JUDICIAL OFFICER: Johnson J LOWER COURT DATE OF DECISION: 4 April 2008 LOWER COURT MEDIUM NEUTRAL CITATION: NSWSC 311
2007/2477
MONDAY 2 JUNE 2008McCLELLAN CJ at CL
HULME J
HIDDEN J
1 McCLELLAN CJ at CL: On 3 March 2008 the applicant was indicted with his brother Dror Salah on a charge of murder. They were charged that each did jointly murder the deceased, Hernan Guelman on 5 August 2006 at Bondi Beach. On 10 March 2008 Dror Salah pleaded guilty to manslaughter and the applicant pleaded guilty to accessory after the fact to manslaughter. The Crown accepted each plea in satisfaction of the indictment. The basis of the plea by Dror Salah was of excessive self-defence. The penalty for the offence to which the applicant pleaded guilty is imprisonment for five years.
2 It is apparent from these circumstances that the applicant was sentenced after some days of the trial. However, we are informed that the expectation was that the trial still had approximately 5 weeks to run. The Crown proposed to call many further witnesses in establishing the Crown case.
3 The applicant was sentenced to imprisonment for three years with a non-parole period of one year and eleven months with both periods to date from 8 August 2006. His Honour directed the release of the applicant on completion of his non-parole period on 7 July 2008. That date, of course, is a little more than a month from today. In these circumstances, the court believes it is appropriate to make its decision today and provide the necessary reasons.
4 The applicant supported his appeal by defining 12 grounds of appeal. However, on the hearing of the matter counsel confined the appeal to three matters. These were that the discount, which was 10 per cent, provided by his Honour for the plea of guilty was excessively low and amendable to correction by this Court. It was further submitted that his Honour was in error in giving significance to the fact that the applicant was present when the deceased was killed. Finally, it is submitted that the sentence in all the circumstances was manifestly excessive.
5 The question of the appropriate discount in the circumstances of this case is attended with complexity. Although it was undoubtedly the case that the applicant could have offered to plead to the offence for which he was subsequently convicted at any time after he had been charged with the offence of murder, it could be thought that to impose this obligation would be somewhat artificial when the applicant was not aware of the fate of any charge in relation to the primary offender. The penalty for the offence of accessory after the fact to manslaughter carried a maximum sentence of five years compared with a far greater penalty in relation to the offence of accessory after the fact to murder. Consideration of the appropriate discount for a plea in these circumstances may require careful consideration by this Court on some occasion.
6 The applicant in pursuing this application has not asked the court to review the head sentence but presses only for the court to now confine the non-parole period to a period which would expire today. Given the limited nature of the application, the complexities of the relevant or appropriate discount, in my opinion, need not be further considered. I am of the same view in relation to the question of the presence of the applicant at the scene when the deceased was killed.
7 In my opinion, it is only necessary to consider the circumstances relating to the practical assistance provided by the applicant as against the circumstances in which the offence was committed to reach the conclusion that in this case the sentence was excessive. It is also unnecessary, having regard to the limited argument on appeal to consider further the extent to which the sentence may have been excessive beyond expressing a view in relation to the non-parole period.
8 The court has been assisted by access to the limited statistics available from the Judicial Commission both in relation to the offence of accessory after the fact to manslaughter and also accessory after the fact to murder. Those statistics are limited by reason of the number of offenders for which sentences have been collected, but indicate, in my view, that at least the non-parole period which his Honour imposed in the present circumstances was excessive.
9 As I have indicated, it is unnecessary for the court to describe the non-parole period which would have been appropriate beyond expressing the view that a period which expires today would not be lenient in all the circumstances. In coming to this view I am mindful of the fact that the applicant provided relatively confined assistance to the principal offender over a short period of time. There was also a family relationship between them which was relevant to the sentence which should be imposed.
10 Having regard to these matters, I am of the view that this Court should intervene to the extent of quashing the non-parole period provided by his Honour and imposing a non-parole period of one year, nine months and twenty-five days, that period expiring today.
11 It would follow that this Court would make an order directing the release of the applicant at the completion of his non-parole period which would expire at midnight today.
12 HULME J: I agree.
13 HIDDEN J: I also agree.
14 McCLELLAN CJ at CL: The order of the court will be as I have indicated.
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