Saliba v R [2023] NSWCCA 298

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Saliba v R [2023] NSWCCA 298 Hearing dates: 10 November 2023 Date of orders: 29 November 2023 Decision date: 29 November 2023 Before: Ward P; Walton J; Fagan J Decision: 1. Grant leave to appeal. 2. Appeal dismissed. Catchwords: CRIMES – appeals – appeal against sentence – where applicant pleaded guilty to possession of a pistol and two counts involving discharge of the weapon – where sentencing judge misapprehended agreed facts as to which count involved the infliction of second gunshot wound – whether despite factual error no lesser aggregate sentence warranted for the three counts Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Firearms Act 1996 (NSW) Category: Principal judgment Parties: Rex (Respondent) Adam Saliba (Applicant) Representation: Counsel: E Wilkins SC (Respondent) D Barrow SC (Applicant)

Solicitors: Solicitor for Director of Public Prosecutions (Respondent) Sans Law (Applicant) File Number(s): 2020/194217 Publication restriction: No Decision under appeal Court or tribunal: District Court NSW Jurisdiction: Criminal Date of Decision: 2 September 2022 Before: Judge NL Williams File Number(s): 2020/194217

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty to possession of a prohibited pistol (.22 calibre Ruger) (count 1), recklessly causing grievous bodily harm (count 2), and discharging a firearm in a manner likely to injure (count 3). The applicant was a member of the same criminal organisation as his victim. The applicant feared the victim intended to shoot him after receiving threats and he acquired the pistol to defend himself. The next day the applicant sent more threatening messages and then attended at the applicant's address. When the victim walked rapidly towards the applicant's home, the applicant approached him carrying the pistol (count 1) and fired twice in rapid succession (count 2). The first shot occasioned a gunshot wound to the victim's jaw and the second caused a wound to his chest (anterior thoracic) and left a projectile in the soft tissues of his back. The applicant then discharged a third shot in the victim's direction, which did not strike him (count 3). Allowing a 10% discount, her Honour imposed an aggregate sentence of 9 years imprisonment with a non-parole period of 5 years and 6 months. The sole ground of appeal was that the learned sentencing judge erred in sentencing for counts 2 and 3 on the basis that each involved a discharge of the pistol that had caused a gunshot wound. The Court held (Ward P, Walton and Fagan JJ) granting leave to appeal against sentence and dismissing the appeal: 1. 1. The sentencing judge's error of fact involved an understatement of the seriousness of count 2 by attributing to it only one injury (to the jaw) whereas there was a second injury (to the anterior thoracic) and overstating the seriousness of count 3 by attributing to it the second gunshot injury whereas the projectile discharged from the weapon in that count had not struck the victim (at [23] and [24]). 2. 2. No lesser sentence was warranted. The factual error did not involve a material misconception concerning the totality of the gravity of offending, it merely called for a reallocation of seriousness from one count to another (at [41] and [42]).