Local Court New South Wales Medium Neutral Citation: R v Saleh; R v Salim [2023] NSWLC 2 Hearing dates: 28 February 2023, 11 April 2023, 12 May 2023 Date of orders: 12 May 2023 Decision date: 12 May 2023 Jurisdiction: Criminal Before: Donnelly LCM Decision: See orders at [70]-[71] Catchwords: SENTENCING – fact finding – agreed facts – versions in statements tendered by defendant inconsistent with agreed facts concerning the conduct of the victim – requirement for agreed facts to be returned for reconsideration by the parties – resolution of differences by the application of sentencing principles in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 OFFENCES – s 59 Crimes Act – assault occasioning actual bodily harm – assessment of objective seriousness – offences committed with an high level of violence – purposes of sentencing – requirement of sentences to reflect the respective assessments of objective seriousness, strong need for general deterrence, denunciation, accountability and harm to the victim IMPRISONMENT – intensive correction orders – s 66 Crimes (Sentencing Procedure) Act 1999 – Stanley v DPP (NSW) [2023] HCA 3; (2023) 97 ALJR 107 – requirement to apply the common law proportionality principle notwithstanding beneficial findings under 66(2) – court is entitled to take into account the leniency of an ICO in determining whether it should be imposed – sentences of full-time imprisonment appropriate Legislation Cited: Crimes Act 1900 (NSW) ss 59, 61,195 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 22, 32, 35A, 44, 53A, 66 Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (NSW) Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 8 Cases Cited: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10 CP v R [2009] NSWCCA 291; (2009) 213 A Crim R 26 Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Garlett v Western Australia [2022] HCA 30; (2022) 96 ALJR 888 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 Kareem v R [2022] NSWCCA 188 Karout v R [2019] NSWCCA 253 Lou v R [2021] NSWCCA 120 Mandranis v R [2021] NSWCCA 97 McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 Mikic v Local Court of NSW [2013] NSWSC 334 Muniandy v R [2021] NSWCCA 305 Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 Park v The Queen (2021) 273 CLR 303; [2021] HCA 37 R v Bloomfield (1998) 44 NSWLR 734 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Burke [2001] NSWCCA 47 R v Crowley [2004] NSWCCA 256 R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 R v Falls [2004] NSWCCA 335 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 R v Pullen [2018] NSWCCA 264; (2018) 275 A Crim R 509 R v Tannous [2012] NSWCCA 243; (2012) 227 A Crim R 251 R v Zhang [2004] NSWCCA 358 Stanley v DPP (NSW) [2023] HCA 3; (2023) 97 ALJR 107 Taitoko v R [2020] NSWCCA 43 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Thurlow v R [2022] NSWCCA 20 Veen v. The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14 Waterfall v R [2019] NSWCCA 281 Zammit v R [2010] NSWCCA 29 Zheng v R [2023] NSWCCA 64 Texts Cited: New South Wales Legislatyive Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 273 Category: Sentence Parties: Police (Prosecution) Hussein SALEH (Defendant) Ali SALIM (Defendant) Representation: Solicitors: Defendants: Mr Ayache, Mr Wilson Prosecution: Sergeant Glissan, Sergeant Wade, Sergeant Wiblin File Number(s): 2022/160314 2021/367860 Publication restriction: No Judgment The charges 1. The first defendant Mr Hussein Saleh has pleaded guilty to one offence of assault occasioning actual bodily harm under s 59 of the Crimes Act 1900 (NSW) committed against Alexander Leon; one offence of common assault under s 61 of the Crimes Act against Geovanna Chavez Quesada and one offence of destroy or damage property under s 195 Crimes Act being damage to the side mirror of the car owned by Alexander Leon. 2. The second defendant Mr Ali Salim has pleaded guilty to one offence of assault occasioning actual bodily harm under s 59 of the Crimes Act also committed against Alexander Leon and one offence of common assault under s 61 of the Crimes Act also committed against Geovanna Chavez Quesada. 3. The agreed facts will be set out later in the judgment. A short description will suffice here for reasons that will become clear. The incident giving rise to the assaults on the two victims occurred whilst they were sitting in a car and had been waiting for 3-4 hours in a Covid-19 testing line on 28 December 2021. CCTV footage was played of the incident in court as part of the presentation of the facts of the case. The events leading up to the assaults are in dispute. It is accepted by the parties that after Mr Saleh received a phone call from his wife he and Mr Salim arrived in a small truck and double parked on a main road next to Mr Leon's car. Mr Saleh exited the vehicle armed with a screwdriver and without any discussion tried to smash the driver side window, damaged the side mirror, climbed on the bonnet of the car and punched Mr Leon repeatedly through the sunroof of the car, climbed into the car and then he stomped on both victims. When Ms Chavez Quesada dived over to protect her husband from the blows from Mr Saleh he then punched and stomped on her. 4. Mr Salim for his part exited the truck at the same time as Mr Saleh and without any discussion entered the back seat of the car. He then repeatedly punched Mr Leon to the back of the head from the back seat. When Ms Chavez Quesada came to his aid Mr Salim then assaulted her as well. Procedural history 1. The case has a complicated procedural history. On 17 February 2023 the prosecutor tendered agreed facts for each defendant and asked that the common assault offence committed by both defendants be taken into account on a Form 1 document for the sentence for the assault occasioning actual bodily harm offence. On that day the prosecutor did not file a certificate with each Form 1 document as is required by s 35A of the Crimes (Sentencing Procedure) Act (NSW) and clause 8 of the Crimes (Sentencing Procedure) Regulation 2017 (NSW) verifying the matters referred to in s 32. The Registrar requested the certificate by way of an email of 1 March 2023 and it was provided some time prior to 28 March 2023. 2. On 17 February 2023 Mr Ayache who acted on behalf of both defendants on that day also tendered subjective material. This included what was initially an unsigned statement of Mr Saleh's wife Natalie Salas and an unsworn statement from Mr Saleh. Both statements gave a partial version of events in addition to the agreed facts. The parties made submissions on sentence. Both defendants were to be sentenced on 28 March 2023. 3. On 28 March 2023 the court raised two important procedural matters it wished the parties to address. Mr Wilson appeared for the defendants and Sergeant Glissan for the prosecution. The first was whether it was appropriate that a Form 1 be used for the common assault offence committed by each defendant. 4. Section 33(2)(b) of the Crimes (Sentencing Procedure) Act 1999 provides that a court may take into account an offence on a Form 1 "if, in all of the circumstances, the court considers it appropriate to do so". Both parties were given an opportunity to address the issue with reference to Court of Criminal Appeal decisions on the issue including CP v R [2009] NSWCCA 291; (2009) 213 A Crim R 26, where McClellan CJ at CL said at [8]: "…when an entirely inappropriate arrangement is proffered and because of it a court would be denied the opportunity to impose a proper sentence, the discretion provided by s 33(2)(b) should be invoked and the court should decline to accept the Form 1." 1. His Honour went on to say at [9] that the use of the Form 1 "…meant that the sentence imposed may not adequately reflect the seriousness of the totality of the appellant's conduct." 2. On 28 March 2023 the court ruled that it would decline to accept the Form 1 document for each defendant. It gave detailed reasons for doing so after submissions. The reasons can be found in the transcript of proceedings on 28 March 2023. It is enough to state here that the reasons included a finding that the assault occasioning actual bodily harm offence committed by each defendant was serious and fell at least above the middle range for Mr Salim and at the upper end of the range for Mr Saleh. The maximum sentence for the offence is 5 years imprisonment but the jurisdictional sentencing limit in the Local Court is only 2 years. The common assault offence placed on the Form 1 involved a separate victim who climbed over her husband in an attempt to protect him from the blows of both defendants but was punched and stomped on. It was separate and serious conduct. In short, if the court were to permit the use of a Form 1 it would have been denied the opportunity to impose a proper sentence for the principal offence for each defendant and the assault offence. The sentences would not reflect the seriousness of the offences and the totality of the criminality. As a result of the ruling Mr Wilson asked the court for an adjournment until 11 April 2023 so that the defendants could consider their guilty pleas and if they were withdrawn the court would fix a defended hearing date. 3. The second issue formally raised by the court on 28 March 2023 related to the significant differences between the agreed facts which were signed by the two victims compared to factual assertions in the two statements tendered by Mr Ayache of Natalie Salas and the defendant Mr Saleh. When the additional statements were tendered on 17 February 2023 neither party addressed the court regarding these discrepancies. The court raised the issue on 28 March 2023 because several Court of Criminal Appeal decisions including R v Falls [2004] NSWCCA 335 at [29], R v Crowley [2004] NSWCCA 256 at [46] and Zammit v R [2010] NSWCCA 29 at [26] oblige a sentencing court to raise the issue of factual discrepancies before a sentence is imposed. As His Honour Justice Howie put it in R v Falls [2004] NSWCCA 335 at [29]: "Either the document tendered is an agreed factual basis upon which the court is to sentence the offender or it is not." 1. The most glaring example was that the agreed facts stated that at some stage before the assault the defendant's wife telephoned him but - and I quote - "it is not known what she said to him". However in the statement of the defendant Mr Saleh tendered by Mr Ayache the defendant gives a version that during the call he heard his partner Natalie Salas scream "He's attacking us" and that a man in a 4WD was attacking them. 2. The unsworn statement of the defendant's partner Natalie Salas also gave a version of events where the conduct of the male victim Mr Leon prior to the assault was far worse than what is stated in the agreed facts. Her version of events was that the male victim got out of his car and came towards her window and was screaming and shouting. She put her windows up and locked the doors because she did not know what he was going to do. She stated: "He came up to my window while shouting and started punching my car and my car window. I called my fiancé" – that is, the defendant Mr Saleh. She states she was panicking and worried the glass would break and the man would attack her. Her son was crying in the background and she couldn't hear Mr Saleh properly so she hung up on him and called Kogarah police. She stated she explained to the police what happened over the phone. She stated and I quote "This man came out of his car multiple times screaming at us while punching the car."– that is, Mr Leon. 3. There is a fundamental difference between this version and the agreed facts. This version has the male victim Mr Leon come out of his car not once but multiple times. This version has Mr Leon punching the windows of the car and the car itself. It is conduct that may constitute an offence of intimidation. However none of that conduct is referred to in the agreed facts or forms part of the CCTV footage of the incident that was played in court. 4. The agreed facts do not state that the victim got out of his car "multiple times". They state that Mr Leon got out of his car once and was trying to get the driver to comply with the line - that is the covid 19 testing car queue. The agreed facts state that there are "conflicting versions" of what occurred. However the agreed facts do not set out Natalie Salas' version in her unsworn statement tendered in court. It was on this basis that the court asked the parties on 28 March 2023 to consider these significant factual discrepancies. The court returned the agreed facts to the prosecutor and the statements previously tendered by Mr Ayache of Natalie Salas and the defendant Mr Saleh. The matter was adjourned to 11 April 2023. 5. On 11 April 2023 Sgt Wade and later Sgt Wiblin appeared for the prosecution. Mr Ayache appeared for the defendants. He tendered a letter written to Mr Saleh from the Registry directing Mr Saleh to pay a $400 fine purportedly imposed by the court. Sgt Wade also indicated he had a recently printed criminal history of Mr Saleh which showed a Sutherland court result that Mr Saleh had been sentenced for the offences on 28 March 2023. 6. The court file and record was checked and it was clear that the matter had not been finalised. As put in the case of Garlett v Western Australia [2022] HCA 30; (2022) 404 ALR 182 at [173] the judicial power of "punishment of criminal guilt" had not been exercised by the court. See also Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10 at 258. This was of course clear to all those in court on 28 March 2023. It was abundantly clear that the letter was an administrative error of the Registry. Moreover Mr Saleh was present and legally represented by Mr Wilson on 28 March 2023. It must be assumed that Mr Saleh knew he had not been sentenced and that Mr Wilson informed Mr Ayache of what occurred and that his client had not been sentenced. 7. The proceedings continued 11 April 2023. Mr Ayache indicated that the guilty pleas of both defendants would not be withdrawn. The court raised the issue of the agreed facts. Sgt Wiblin then tendered an amended agreed facts sheet which altered part of a sentence from "it is not known what she said to him" to "it is not known by police what she said to him." No other amendment was made to the agreed facts document including matters referred to in the statement of Natalie Salas. Mr Ayache then tendered for the second time the statements of Natalie Salas and the defendant Mr Saleh. Neither of those statements contained any alterations. 8. Therefore apart from a single amendment the court was asked to determine the matter on the same basis as 17 February 2023. In the recent case of Kareem v R [2022] NSWCCA 188 the Court of Criminal Appeal made clear that a sentencing court is entitled to expect assistance with the agreed facts. 9. The court will now proceed and sentence based on the agreed facts as tendered as well as the statements that were tendered. As stated in Taitoko v R [2020] NSWCCA 43 by Leeming JA (with whom Hoeben CJ at CL and Lonegan J agreed) at [38]: "The point of signing the Agreed Facts was for that agreement to bind the applicant and to form the foundation of the sentencing discretion. It is ordinarily quite wrong for submissions to be made contrary to facts to which an offender has agreed." 1. His Honour had said earlier in that case at [37] "…counsel appearing for the applicant was and continues to be unaware of the effect of his client agreeing to facts for the purpose of sentencing." 2. To borrow Leeming JA's formulation the agreed facts tendered in this case bind each defendant and form the foundation of the sentencing discretion. The court is bound to sentence on the facts tendered. It has a limited capacity in a practical sense to find any additional facts. The High Court made this clear in GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30]: "There may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge's capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply to the facts as found, the relevant law and sentencing principles." 1. The court does have some capacity to find facts in this case and to resolve the conflicting versions. As stated earlier the agreed facts provide a version of Mr Leon's conduct toward Natalie Salas prior to the assaults but also state "there are conflicting versions". That of course is a reference to Natalie Salas' version in her statement tendered by Mr Ayache. In The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 five members of the High Court articulated the course that an offender may take where facts are controverted at [25]: "…it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)" (Emphasis added). 1. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 the court affirmed its previous decisions as to the onus of proof holding that at [66]: "…where an offender asserts a fact favourable to the offender and the Crown contests it or the court is not otherwise disposed to accept it, it is incumbent on the offender to establish the fact on the balance of probabilities." 1. So far as Natalie Salas' version is concerned no evidence was called as envisaged in The Queen v Olbrich to contradict the agreed facts version of Mr Leon's conduct. When Natalie Salas' statement was first tendered by Mr Ayache it was unsigned, unsworn and of course not tested under cross-examination. The court indicated to Mr Ayache at the time it was first tendered that the document should be signed. The version that Natalie Salas gave of Mr Leon's conduct is not supported by any objective evidence such as the CCTV footage. The conduct she alleges is serious and arguably could found a charge of intimidation. There is no evidence that Mr Leon was ever charged. For all these reasons the court does not accept Natalie Salas' version of Mr Leons' conduct prior to the incident on the balance of probabilities. Therefore the defendants will be sentenced based on the version of Mr Leon's conduct described in the agreed facts. 2. The defendant Mr Saleh maintained in his unsworn statement that his wife said to him in the phone call "He's attacking us". This is not in the agreed facts. This is to be contrasted with what he told the author of his Sentencing Assessment Report that he received a call from his wife whilst at work and he left work to assist his wife who at the time he described was - and I quote - "sounding very distressed." He does not make any reference to the author of the report that his wife told him she was being attacked. Nor does Natalie Salas' say in her statement that she told Mr Saleh in the phone call "He's attacking us". Her statement states she was worried and I quote "this man would attack me". In fact later she refers to Mr Saleh assaulting "the man that was abusing us". 3. The court has already rejected Natalie Salas' version of how she claimed Mr Leon acted prior to the assault. Mr Saleh's version in his unsworn statement was not repeated to the author of the Sentencing Assessment Report. For these reasons the court does not accept on the balance of probabilities that Mr Saleh was told by his wife that "He's attacking us". In any event when Mr Saleh arrived at the scene in his truck no such attack was occurring and he did not even try to speak to anyone including Natalie Salas. He and Mr Salim immediately assaulted the victims. 4. More broadly, to the extent that the statements of the defendant Mr Saleh and Natalie Salas' directly differ from the agreed facts they will be disregarded. The agreed facts 1. The agreed facts document has been reproduced as Annexure "A" to the judgment. What is immediately obvious is that the document has several black texter lines through typed text, it is covered in handwriting and it is not easy to make out some of the handwriting amendments. It may be doubted whether an agreed facts document in the form of the one before the court would be tendered in sentencing proceedings in either the District Court or Supreme Court. 2. In the facts there is reference to CCTV footage of the incident. The footage of the incident was played in court and clearly shows the duration of the attack on the victims in the car. The following sets out the facts that were tendered by the prosecution and upon which the pleas of guilty were entered. The agreed statement of facts 1. The accused in the matter is Hussein Saleh and the co-accused in the matter is Ali Salim. The victims in the matter are Alexander Leon and Geovanna Chavez Quesada. The accused's [sic] and the victims did not know each other prior to the incident. About 10 AM on Tuesday the 28 December 2021, the victims were in their vehicle, a gold Toyota Prado waiting to get a Covid test at the Covid drive-through clinic located on Princes Highway and Ecole Street, Carlton. The victims have been waiting in line for about 3 to 4 hours at this point. 2. As the victims approached the intersection of O'Meara Street Carlton a white Lexus has cut the line in front of them. Mr Leon started beeping his horn to get the Lexus to go to the back of the line. Chavez Quesada left the vehicle and approached the Lexus to tell them to get to the back of the line. She returned to her vehicle and then Mr Leon exited his vehicle and approached the Lexus to attempt to get the driver to comply with the line. 3. There are conflicting versions as to what occurs at this point but it is agreed that the driver stated to Mr Leon words to the effect of "Fuck off, I'm calling the police". Mr Leon returned to his car and kept beeping is his horn to try and annoy the driver into leaving the line. The driver of the Lexus has called her husband, Mr Saleh, but it is not known by police what she said to him. 4. A short time later, the accused and co-accused arrive on the scene travelling in a white truck. The accused and the co-accused stop the vehicle next to the victim's [sic]. Both the accused and the co-accused exit their vehicle and Mr Saleh attempted to smash the driver window with a screwdriver. The co-accused Mr Salim attempted to open the driver side door by the handle. Chavez Qesada locked her door and the driver door in fear for the victim's safety. 5. The co-accused Mr Salim climbed into the back seat on the driver side and started to hit and punch Mr Leon in the back of the head causing bruising and pain to the right ear and head. The accused Mr Saleh at this time has continued to strike the window for a short time breaking the driver mirror in the process. 6. Mr Saleh has jumped to reach over the roof of the victim's car and attempted to hit the victim Mr Leon through the sunroof. Mr Saleh has climbed onto the roof of the victim's car and climbed through the sunroof, punching Mr Leon through the sunroof. Ms Chavez Quesada has climbed over Mr Leon in an attempt to protect him from the blows from both the accused and the co-accused. Mr Salah has stood up on the car and entered the vehicle and then proceeded to stomp his foot through the sunroof making contact with both victims. 7. Both the accused and the co-accused have made physical contact with Ms Chavez Quesada in an attempt to get to Mr Leon. During this interaction Mr Leon has either taken his foot off the brake or hit the accelerator of his vehicle, causing it to collide into Mr Saleh's wife's vehicle. 8. The accused and co-accused have left the vehicle, one moving their vehicle to an unknown location while the other remained with the Lexus driver. Both victims remained in their vehicle at this time. The incident was captured on CCTV camera and a nearby store, matching the victim's versions. 9. Soon after police arrived on the scene. All parties involved continue to argue and police had to separate the parties to avoid further conflict. While police were talking to other parties Mr Saleh continued to threaten Mr Leon. Police also were witness to the accused stating words the effect of "I am going to fucking kill him" and the accused yelling "I'll bash the fuck outta him right now" directed at the victims and this was captured on police body worn video. Police gave all parties a move on direction from the area as they could not ascertain what had occurred at the time. 10. After reviewing the CCTV police contacted Mr Leon and later that day both victims attended the police station and provided statements outlining events. Objective factors 1. A central part of the sentencing process is for the court to assess the seriousness of the crimes. The starting point is the maximum penalty for the offence and the ingredients of the offence. The maximum penalty for the crime of assault occasioning actual bodily harm is five years imprisonment. The jurisdictional sentencing limit of the Local Court is two years imprisonment and/or $5500 penalty units. However as the High Court made clear in Park v The Queen (2021) 273 CLR 303; [2021] HCA 37 at [19] a jurisdictional limit is not a matter required to be taken into account in determining an appropriate sentence. It only becomes relevant if the sentence determined exceeds the jurisdictional maximum. As the joint justices put it in Park v The Queen at [19]: "Contrary to the appellant's submission, a jurisdictional limit is not a matter required to be taken into account "[i]n determining the appropriate sentence for an offence" in accordance with s 21A. A jurisdictional limit relates to the sentencing court, not to the task of identifying and synthesising the relevant factors that are weighed to determine the appropriate sentence. To the contrary, the maximum penalty for an offence is a matter that is almost always required to be taken into account to determine the appropriate sentence, including where the maximum penalty exceeds a relevant jurisdictional limit." 1. The court can only sentence the defendants based on the charges laid by the police and to which they pleaded guilty. Something must be said in this case about the application of what is known as the R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 principle recently affirmed by the court in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17. The principle holds that a court cannot take into account as an aggravating factor a circumstance that would effectively sentence a defendant for a more serious offence. The defendants are both being sentenced for one offence of assault occasioning bodily harm under section 59(1). However there is a more serious offence of assault occasioning actual bodily harm in company with another under section 59(2). It carries a higher maximum penalty of seven years imprisonment. 2. It is plainly obvious that the agreed facts state that the defendants arrived at the scene together in a small truck and without warning they entered a car and both assaulted the victims at the same time. The prosecution did not at any stage charge either defendant with the offence of assault occasioning actual bodily harm in company under s 59(2). Therefore, although on the facts each defendant was in the company of the other during the attack that fact cannot be taken into account as an aggravating factor because to do so would breach the De Simoni principle. It would effectively sentence each defendant for an aggravated form of the offence which has a higher maximum penalty of 7 years. It is well settled that the selection of a criminal charge is solely for the prosecuting authority and not a sentencing court. See Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [33]. The offence under s 59(2) is self-evidently more serious with a higher maximum penalty. The court would commit a legal error if it sentenced each defendant on the basis that the offences were committed in company. 3. I turn now to other sentencing considerations. For offences involving personal violence the appellate courts have identified important sentencing factors in assessing the seriousness of any crime. These include the mental element of the offence; the nature of the injuries suffered by the victim; and the degree of violence used in the commission of the offence. Nature of the injuries 1. So far as the nature of the injuries are concerned the punching of Mr Leon by Mr Salim in the back of the head caused bruising and pain to his right ear and head. Photographs were tendered at sentence which showed the injuries to the face and head. There are discrete red marks on the back of his head and bumps on his forehead. The injuries were caused by closed fist punches to the head and also stomping. Mr Ayache submitted that the injuries placed both assault occasioning actual bodily harm offences below the mid-range. This was a reference to the assessment of objective seriousness. The submission is rejected. 2. In R v Burke [2001] NSWCCA 47 at [17] the court held that "a sustained and unprovoked assault … was a serious offence of its nature, notwithstanding that the injuries inflicted upon the victim were relatively minor". In Waterfall v R [2019] NSWCCA 281 at [33], Cavanagh J (with whom Johnson J and McFarlane JA agreed) said: "Whilst it may be that in some cases the most significant factor will be the nature of the injuries sustained there is no rule or principle which mandates that it will be the most important factor or necessarily determine the assessment of objective seriousness." 1. In McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 at [37] - a case which involved wounding - the court acknowledged that the seriousness of the injury was important but: "That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant." 1. The submission also misconceives the nature of the case before the court. If the defendants had inflicted more serious injuries, they would be facing a more serious criminal charge involving wounding or grievous bodily harm both with higher maximum penalties. Further, the submission overlooks that the charges before the court are rolled up charges in the sense that the photographs reveal that Mr Leon suffered several injuries that separately could constitute actual bodily harm. Only one charge for each defendant was laid. This is an accepted approach where a victim comes under attack and receives several blows. See the discussion of Bellew J in Mikic v Local Court of NSW [2013] NSWSC 334 at [15]. This is a case where the victim suffered multiple injuries to his face and head in a retributive attack. Degree of violence used 1. I now turn to the degree of violence used and the ferocity of the attack. Spigelman CJ said in R v Bloomfield (1998) 44 NSWLR 734 at 735 in the context of assessing the seriousness of an offence under s 59(1) as follows: "The degree of violence involved in an assault is a material consideration when it comes to sentencing". 1. This statement of principle has been repeatedly applied; see R v Zhang [2004] NSWCCA 358 at [18]. 2. The assault occasioning actual bodily harm offences committed by both defendants were a cowardly and vicious attack executed with a high degree of violence. The CCTV footage of the assault is shocking. It shows the attack on the victim Mr Leon was sustained, ferocious and of long duration. The offences were committed with a degree of pre-meditation – both defendants drove to the scene. The offences were committed in the confined space of a car where the victim was trapped and defenceless. It was committed on a stranger and the offences were committed without warning. It began with the use of a screwdriver. Mr Saleh attempted to break the car window and then broke the side mirror which I can infer Mr Leon witnessed. 3. The victim Mr Leon received several closed fist punches inflicted by both defendants during the attack and at the end of the incident Mr Leon drove his car into the car in front. The initial blows inflicted by Mr Salim were closed fist punches to the back of his head at very close quarters after he had climbed in the back seat of the car. Mr Saleh then climbed on the bonnet of the car and "climbed through the sunroof punching Mr Leon through the sunroof". The footage show he inflicted several closed fist punches from the top of the car. The infliction of several closed fist punches to the head significantly aggravates the offence. Mr Saleh then resorted to stomping and I quote he "stood up on the car and entered the vehicle then proceeded to stomp his foot through the sunroof making contact with both victims". The stomping by Mr Saleh on two defenceless people in a confined space also elevates the seriousness of his crimes. See the discussion in the decision of R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [35]. Objective seriousness findings 1. These aggravating circumstances particularly the very high degree of violence and a sustained attack which included stomping warrant a finding that the assault occasioning 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 the back of the head of the victim in the confined space of a motor vehicle. 2. 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. Subjective considerations 1. The prosecution accepted that although the defendants initially pleaded not guilty to the offences a plea offer was made at the first opportunity and it was ultimately accepted. Applying s 22 of the Crimes (Sentencing Procedure) Act 1999 and R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32] it is appropriate that each defendant receive a 25% discount for the utilitarian value of the plea. 2. A sentencing assessment report was prepared for the proceedings for Mr Saleh. The report states that the defendant is a builder with no documented history of antisocial behaviour or history of violence and has no criminal history. The defendant said he had stresses at the time relating to work caused by the Covid lockdown. The defendant acknowledged that he did not seek to clarify what the issue was when he arrived at the Covid line. He said he could have handled the situation better before reacting the way he did, he was very sorry for the victims and now understands that they would have been fearful of how he behaved. He assured the author of the report he would never react like that again and that there are no excuses for it. He denied he had any issues with anger management but he accepted this was a very bad example of how he reacted. 3. Mr Saleh expressed contrition in his statement to the court. Several character references report for the court on behalf of Mr Saleh. All these references state that the defendant acted out of character and that he is not a violent person and the offending is contrary to his otherwise good character. He has no criminal history. 4. The sentencing assessment report of Mr Salim records his opinion that Mr Saleh's wife, child and elderly mother were being attacked in their car by the victim. The court will treat that statement as self-serving and contrary to the agreed facts and evidence before the court. Mr Salim denied he was a violent person and demonstrated insight into the impact of his offending. He was assessed as being low risk of reoffending. He indicated that he does not have time to do community service work due to work commitments. The author of the report indicated that he would not have face to face reporting and his supervision would involve only monitoring. The level of supervision offered in the report falls short of what was envisaged in the Second Reading Speech for the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 (NSW), where the NSW Attorney General, the Honourable Mark Speakman SC MP said the following: "…the reforms will change how offenders are sentenced to ensure they are supervised where necessary. Too many offenders are leaving court without supervision, including domestic violence offenders." (Emphasis added). Determining the sentences 1. The plurality in the High Court decision of Stanley v DPP (NSW) [2023] HCA 3; (2023) 97 ALJR 107 Gordon, Edelman, Steward and Gleeson JJ at [59] set out the steps that a sentencing court must take in determining an appropriate sentence. Their Honours said: "There are three steps to be undertaken by a sentencing court prior to the final order by which a sentence of imprisonment is imposed under the Sentencing Procedure Act, … first, a determination that the threshold in s 5(1), described below, is met, …;second, determination of the appropriate term of the sentence of imprisonment; and third, where the issue arises, consideration of whether or not to make an ICO." 1. The first step involves determining whether there are any alternatives to the imposition of a sentence of imprisonment. The court must be satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate: s 5(1) Crimes (Sentencing Procedure) Act. In this case the custody threshold is met for both the assault occasioning actual bodily harm offence and the assault offence for each defendant even taking into account all their subjective features. This is because of the findings in relation to objective seriousness for each of the offences committed by the defendants. For Mr Saleh's offence of destroy and damage property I find that the custodial threshold is not met. I will return to that issue and the appropriate sentence. 2. Given the section 5 threshold has been met the court will be imposing an aggregate sentence for each offender under s 53A of the Act. A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. Each of the crimes is assigned an indicative term and the court determines the aggregate sentence. The determination of the aggregate term of imprisonment and any indicative term is made without regard to whether the sentence will be served by way of full-time imprisonment or by way of an intensive correction order: Mandranis v R [2021] NSWCCA 97 at [36]; Lou v R [2021] NSWCCA 120 at [20]. 3. In the case of Mr Saleh for the offence of assault occasioning actual bodily harm having regard to the maximum penalty of 5 years imprisonment, the findings that the offence fell in the upper range of objective seriousness and the subjective features of the offender, including his lack of criminal history and the utilitarian value of the plea of guilty being 25%, I find that the appropriate indicative sentence is 20 months imprisonment. For the common assault offence, having regard to the circumstances of that offence – the victim being a woman going to the aid of her partner under attack – an indicative term of 8 months imprisonment is appropriate. When the principle of totality is applied taking into account the two crimes were discrete, involved two victims and arose out of one incident I impose an aggregate term of imprisonment of 22 months. 4. In the case of Mr Salim for the offence of assault occasioning actual bodily harm having regard to the maximum penalty of 5 years imprisonment, the above mid-range findings in relation to objective seriousness of the offence and his subjective features including his limited criminal history and the utilitarian value of the plea of guilty I find that the appropriate indicative sentence is 15 months imprisonment. For the common assault offence I impose an indicative sentence of 7 months imprisonment. When I apply the principle of totality taking into account the two crimes were discrete, involved two victims and arose out of one incident I find an appropriate aggregate sentence of imprisonment is 18 months. 5. I now turn to the third step of the sentencing task of determining whether the sentences of imprisonment should be served by way of an intensive correction order for each defendant or full-time imprisonment. This part of the sentencing exercise requires the court to consider ss 7 and 66 of the Act. Section 66 provides as follows: (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant. 1. In Stanley v DPP (NSW) [2023] HCA 3; (2023) 97 ALJR 107 at [76] the High Court held that where consideration of an intensive correction order arises a sentencing court commits a jurisdictional error if it fails to make a finding under s 66(2). The court observed at [74] that s 66(2) recognises that in some cases community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. So far as s 66(2) is concerned in this case each defendant has been assessed as being low risk of re-offending and neither has a history of committing violent offences. Given this is a case where there is a low risk of reoffending for both defendants I formally find that serving a sentence by way of an intensive correction order is more likely to address any risk of re-offending than a sentence of full-time detention. See Zheng v R [2023] NSWCCA 64 at [290]. However a finding of that kind under s 66(2) is not the end of the matter as to whether an intensive correction order may or should be imposed instead of full-time imprisonment. 2. The plurality explained in Stanley v DPP the effect of findings under s 66(2) at [75]: "The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending." (Emphasis added). 1. Section 66(3) requires the court to consider section 3A and any relevant common law sentencing principles. Section 3A sets out purposes for which a court may impose a sentence in addition to the objective of community safety referred to in s 66(1). Section 3A refers to ensuring that the offender is adequately punished for the offence; the need to make the offender accountable for his actions; to deter the offender and other persons from committing similar offences; to denounce the conduct of the offender; to protect the offender from the community; and to recognise the harm done to the victim of the crime. All these matters must be considered by the court in determining whether an intensive correction order should be made. 2. Section 66(3) provides that the court must also consider any relevant common law sentencing principles. A cornerstone principle of sentencing law is the common law principle of proportionality. It was explained by Spigelman CJ in R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15]: "It is authoritatively established that the common law principle of proportionality, propounded in Veen v The Queen (No 2), requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances. (Hoare v The Queen (1989) 167 CLR 348 at 354.) In a line of cases, commencing with R v Dodd (1991) 57 A Crim R 349 at 354, referred to and affirmed by a five judge bench in R v Whyte (2002) 55 NSWLR 252 at [156]–[158], the proportionality principle is also held to apply so that a sentence should not be less than the objective gravity of the offence requires." (Emphasis added). 1. This principle requires the court to consider whether an intensive correction order will reflect the objective seriousness of the offences of both defendants and fulfil the applicable purposes of punishment in both cases. In R v Pullen [2018] NSWCCA 264; (2018) 275 A Crim R 509 at [53] the court observed that although an intensive correction order ordinarily involves substantial punishment it also reflects a significant degree of leniency. This was described as a point of principle in Muniandy v R [2021] NSWCCA 305 at [62] where Wright J (with whom Harrison and Davies JJ agreed) said at [62]: "His Honour's comment that "the imposition of a sentence to be served by way of ICO reflects a significant degree of leniency" is a statement of principle which has been adopted by this Court on a number of occasions including, for example, in R v Cahill [2015] NSWCCA 53 at [114] (Johnson J, Leeming JA and Schmidt J agreeing). It involved no error of principle." 1. There was no suggestion by the High Court in Stanley v The Queen that the principle should be abolished. In Karout v R [2019] NSWCCA 253 at [94] Fullerton J (with whom Hoeben CJ at CL and Brereton JA agreed) observed that the sentencing judge's positive findings under s 66(2) might: "…have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play." 1. In Thurlow v R [2022] NSWCCA 20 the sentencing judge assessed the offender favourably under s 66(2) but decided that having regard to s 3A and the objective seriousness of the offending that the offender should serve a period of full-time custody. No other sentence including an intensive correction order was appropriate to accommodate those principles. 2. Applying those principles in the case of Mr Saleh and after careful consideration I find that the aggregate sentence of imprisonment should not be served by way of an intensive correction order because such a sentence would not reflect the objective seriousness of the crimes and would attribute too much weight to the subjective features of the case. This is an application of the principle in R v Dodd (1991) 57 A Crim R 349 at 354 and R v McNaughton (2006) 66 NSWLR 566 at [15]. This is a case where the court must give effect to its findings concerning the offence falling in the upper range of objective seriousness of the assault occasioning actual bodily harm and the related findings regarding common assault. If an intensive correction order were imposed it would be a sentencing result where the court failed to properly apply the proportionality principle in Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 by reference to the objective gravity of the offence: see also Hoare v The Queen (1989) 167 CLR 348 at 354. An intensive correction order would not meet the purposes of sentencing including general deterrence. In this case that purpose of sentencing has an important role to play because the offence was a retributive attack. Further, an intensive correction order would not adequately denounce the crime, make Mr Saleh accountable or properly recognise the harm to the victim Mr Leon. These observations concerning the purposes of sentencing in s 3A apply equally to the common assault offence committed against Ms Chavez Quesada. 3. I turn now to the defendant Mr Salim. I find that applying the principles above that his aggregate sentence of imprisonment should not be served by way of an intensive correction order. Again this is an application of s 66(3). The surrounding circumstances of his offending are the same as Mr Saleh. It was said in submissions on Mr Salim's behalf that he was "backing up his mate". Mr Salim's conduct of "backing up his mate" by committing two offences in an attack of the kind in this case is to be strongly deterred by the court – both generally and specifically. 4. Given the findings regarding the objective seriousness of the offences as explained above if the court imposed an intensive correction order the principle of proportionality would not be properly applied. There are also other reasons why it would not be appropriate to impose an intensive correction order. According to the sentencing assessment report the additional conditions of any intensive correction order will not at all be onerous. The report indicates that Mr Salim will only be monitored for any indicators of increased risk of reoffending. However there will be no face-to-face reporting and he has indicated that he will not be able to complete community service because of work commitments. He will have almost no legal obligations according to the sentencing assessment report. 5. The proposed form of an intensive correction order is a matter the court can take into account. The court is entitled to assess the degree of leniency of an intensive correction order as compared to full time imprisonment. See R v Tannous [2012] NSWCCA 243 and the discussion of Basten JA at [23]-[25]. The High Court in Stanley v DPP made clear at [75] - albeit in the context of making findings under s 66(2) - that the court can consider "the nature and content of the conditions that might be imposed by an ICO" as important in measuring the risk of reoffending. 6. The situation in this case is similar to the one faced by the sentencing judge in Muniandy v R [2021] NSWCCA 305. Wright J (with whom Harrison and Davies JJ agreed) said at [63]: "The observation that there appeared to be no additional conditions that might reasonably be imposed to serve as punishment for the offence was correct in the circumstances of the present case given the contents of that report, which have been quoted above, and the available additional conditions referred to in s 73A(2). While it could be accepted that supervision in the context of an ICO was a form of punishment involving curtailment of the freedom of an offender, it did not follow that the sentencing judge erred in finding that an ICO should not be imposed in the circumstances of the present case where the supervision condition would be suspended by Community Corrections and no other available conditions appeared to be applicable." 1. Wright J stated at [65] that the sentencing judge was "…entitled to take into account that the sentencing assessment report indicated that community service work was not available." In the case of Mr Salim it is on this additional basis that an intensive correction order should not be imposed. 2. It remains for the court to determine the non-parole periods for the aggregate sentences imposed on each defendant. In the case of Mr Saleh the minimum period of custody justice requires that the offender serve in the circumstances is 14 months imprisonment. I find special circumstances under s 44(2B) of the Act to vary the statutory ratio based on the defendant's need for rehabilitation. 3. In the case of Mr Salim the minimum period of custody justice requires that he serve in the circumstances is 11 months imprisonment. I find special circumstances under s 44(2B) of the Act to vary the statutory ratio based on the defendant's need for rehabilitation. 4. Can each defendant please stand. The formal orders of the court are as follows. The defendant Mr Saleh is sentenced to an aggregate sentence of imprisonment of 22 months which will commence on 12 May 2023 and expire on 11 March 2025. I impose a non-parole period of 14 months which will commence on 12 May 2023 and expire on 11 July 2024 at which time the defendant will be eligible to be released to parole. For the offence of destroy/damage property I impose a Community Correction Order of 18 months with supervision. The defendant is to report to Sutherland Corrections 48 hours after his release from custody. 5. The defendant Mr Salim is sentenced to an aggregate sentence of imprisonment of 18 months which will commence on 12 May 2023 and expire on 11 November 2024. I impose a non-parole period of 11 months which will commence on 12 May 2023 and expire on 11 April 2024 at which time the defendant will be eligible to be released to parole. ANNEXURE A final (82919, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 August 2023