Saleh v The Queen - [2012] VSCA 210

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2012 0093

MOHAMMED SALEH	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE, WEINBERG JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 August 2012
DATE OF JUDGMENT	31 August 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 210
JUDGMENT APPEALED FROM	R v Saleh [2012] VSC 120 (Almond J)

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CRIMINAL LAW — Application for leave to appeal against sentence— Applicant pleaded guilty to manslaughter by criminal negligence —Victim fatally struck by motor vehicle driven by applicant — Sentence of eight years and six months’ imprisonment with non-parole period of six years —Whether sentencing judge erred in consideration of current sentencing practices — Whether sentencing judge erred in treatment of guilty plea — Whether sentence manifestly excessive — No error demonstrated — Leave to appeal granted on manifest excess ground — Appeal dismissed — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Melasecca Kelly & Zayler
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I agree with T Forrest AJA.

WEINBERG JA:

I also agree with T Forrest AJA.

T FORREST AJA:

The applicant pleaded guilty to manslaughter and was sentenced to eight years six months’ imprisonment with a non-parole period of six years.

The facts of the offending

The circumstances of the applicant’s offending are set out in considerable detail in his Honour’s sentencing remarks. I shall provide a bare summary only. On 27 May 2010, the applicant was one of a group who went to a nightclub in Thomastown. A rival group, including the deceased, was also at that nightclub. There was a history of acrimony between the groups and an altercation took place involving bottle throwing and the discharge of a pen pistol.

The applicant went to a white Holden sedan with two of his friends. Others in his group entered a black Honda four wheel drive. With the Honda leading off, they drove back towards the opposing group. They were pelted with bottles and/or rocks. They drove to a roundabout about one kilometre away and then returned to the opposing group. Again their vehicles were pelted. They again drove past the group and again returned.

The deceased was standing on the side of Settlement Road near a parked car. The applicant approached him at between about 30 kilometres per hour and 50 kilometres per hour. The black Honda travelling in front swerved at but did not strike the deceased. The applicant’s car also swerved at the deceased, striking both

him and the parked car. The applicant failed to stop or slow down and decamped in the damaged Holden.

The deceased survived surgery for a time, suffered post-operative complications, and died on 1 June 2010.

On 29 May 2010, the applicant admitted in a police interview that he was the driver of the Holden. On 7 February 2011, he resiled from this position. He then told police that in…

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.

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Details

Case: [2012] VSCA 210
Decision Date: 31 August 2012

CaseChat Overview and Summary

The case of Saleh v The Queen involved the applicant, Saleh, who had pleaded guilty to manslaughter by criminal negligence after a motor vehicle he was driving fatally struck a pedestrian. The sentence imposed was eight years and six months’ imprisonment, with a non-parole period of six years. Saleh sought leave to appeal against the sentence, arguing that the sentencing judge had erred in several respects.

The primary legal issues for the court to decide were whether the sentencing judge had erred in the consideration of current sentencing practices, whether the judge had erred in the treatment of the guilty plea, and whether the sentence was manifestly excessive. Saleh argued that the sentence was disproportionately harsh when compared to other similar cases and that the sentencing judge had not adequately considered the mitigating factors of his guilty plea.

The court found that while the sentence was at the higher end of the scale, it did not demonstrate any error on the part of the sentencing judge in considering current sentencing practices or in the treatment of the guilty plea. However, the court did conclude that the sentence was manifestly excessive. This finding was based on the disproportionate severity of the sentence relative to the mitigating factors, including the guilty plea. Consequently, the court granted leave to appeal on the ground that the sentence was manifestly excessive, but ultimately dismissed the appeal as there was no point of principle that warranted further consideration by a higher court.

Orders