R v Saleh [2023] NSWDC 645

District Court New South Wales

Medium Neutral Citation: R v Saleh [2023] NSWDC 645 Hearing dates: 27 June, 25 September 2023 Date of orders: 25 September 2023 Decision date: 25 September 2023 Jurisdiction: Criminal Before: Neilson DCJ Decision: See pars [25]-[26]. Catchwords: CRIME – APPEAL – Common Assault on a female and assault occasioning actual bodily harm on male – "Road rage" offences resulting from queuing up to be tested for COVID-19 during pandemic – Prior sentence imposed below replaced with ICO requiring home detention. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Saleh; R v Salim [2023] NSWLC 2 Stanley v DPP (NSW) [2023] HCA 3 Zheng v Rex [2023] NSWCCA 64 at [290] Texts Cited: Nil. Category: Principal judgment Parties: Crown – R (NSW) Appellant – Hessein Saleh Representation: Counsel: Crown – Gourlie, K. Appellant – James, G. KC.

Solicitors: Crown – Office of the Director of Public Prosecutions (NSW). Appellant – One Group Legal. File Number(s): 2021/00367861 Publication restriction: Nil. Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Citation: [2023] NSWLC 2 Date of Decision: 12 May 2023 Before: Magistrate Donnelly

Judgment 1. HIS HONOUR: This is an appeal against severity of a sentence passed by Magistrate Donnelly sitting in the Local Court at Sutherland on 12 May 2023. The appellant pleaded guilty to two offences. The first offence is known as Sequence 3 and was an allegation that on 28 December 2021 at Carlton he did assault Geovana Chavez Quesada. The second offence is known as Sequence 7 and was an allegation that on 28 December 2021 at Carlton he did assault Alexander Leon thereby occasioning actual bodily harm to him. 2. The appellant pleaded guilty to each offence. It is common ground that he is entitled to a discount of 25% on the proper sentence to be passed upon him for each of those offences. 3. Magistrate Donnelly imposed an aggregate sentence. The aggregate sentence was for a period of one year and ten months with a non-parole period of one year and two months. The indicative sentence for Sequence 3 was eight months imprisonment and the indicative sentence for Sequence 7 was 20 months imprisonment. 4. There was a contest about circumstances surrounding the commission of the offences. At around 10am on Tuesday, 28 December 2021 Mr Leon and Ms Quesada were in a Toyota Prado motor vehicle, registered number BNJ 45D in a queue awaiting a COVID test at a drive‑in premises on the corner of the Princes Highway and Ecole Street at Carlton. There was a queue of traffic on the Princes Highway at Carlton stretching south from the corner of Ecole Street and the highway. 5. At the relevant time the victims had been waiting in the queue for between three and four hours. As the victims approached the intersection of O'Meara Street and the Princes Highway at Carlton, two blocks from the intersection of the Princes Highway and Ecole Street, a Lexis motorcar registered number CXT 52V entered the queue ahead of them. Between the intersection of Ecole Street and the Princes Highway and the intersection of O'Meara Street and the Princes Highway only one other street enters the highway on the left‑hand side as one is motoring towards Sydney. That street is known as Wheeler Street. On the corner of O'Meara Street and the Princes Highway there is a Shell service station. 6. Obviously upset by somebody "jumping the queue" Mr Leon started sounding his horn in order to try to persuade the driver of the Lexis to go to the back of the queue which may have been many, many hundreds of metres back along the Princes Highway to the south. At the same time as Mr Leon commenced sounding his horn his passenger Ms Quesada got out of the Toyota Prado and approached the driver of the Lexis motor vehicle to tell the driver to go to the back of the queue. Ms Quesada then returned to the Toyota and Mr Leon then left it and following what Ms Quesada had done, he approached the Lexis motor vehicle and attempted to persuade the driver of the Lexis to go to the back of the queue. 7. There are conflicting versions as to what occurred at this point, however it is agreed that the driver of the Lexis said to Mr Leon words to the effect of, "Fuck off, I'm calling the police". Mr Leon returned to the Toyota but continued to sound his horn trying to annoy the driver in order to try to persuade her to return to the back of the queue. 8. The driver of the Lexis was in fact Natalie Salas, the wife of the appellant. Present in her vehicle was her mother and her one‑year‑old son, the son of the appellant. Like the victims, Ms Salas was intending to visit the COVID testing station. Ms Salas called her husband, but the police were unable to establish what was said by her to the appellant. 9. A short time later the appellant and Mr Ali Salim arrived at the scene of the interaction between the Toyota Prado and the Lexis in a white truck. The appellant and Mr Salim stopped the vehicle next to the Toyota Prado. Both the appellant and Mr Salim left the truck and the appellant attempted to smash the window of the Toyota with a screwdriver. Mr Salim attempted to open the driver's side door of the Toyota. Ms Chavez locked her door and also the driver's door in fear for her safety and the safety of Mr Leon. 10. Mr Salim then climbed into the back seat of the Toyota Prado and started to hit and punch Mr Leon at the back of his head causing bruising and pain to the back of his right ear and the back of his head. In the meantime Mr Saleh, the appellant, continued to strike the window of the Toyota for a short time and broke the driver's mirror in the process of doing that. 11. The appellant then jumped up onto the roof of the Toyota and attempted to hit Mr Leon through the sunroof. The appellant was successful in doing that and began punching Mr Leon through the sunroof. Ms Quesada then climbed over Mr Leon in an attempt to protect him from the blows that were being rained upon him by both the appellant and Mr Salim. The appellant then stood up on the roof of the car and entered it by stomping his foot through the sunroof making contact with both the victims. Both the appellant and Mr Salim made physical contact with Ms Quesada in an attempt to get at Mr Leon. 12. When that started Mr Leon either took his foot off the brake of his vehicle or put his foot on the accelerator causing it to collide with the Lexis being driven by Ms Salas, the appellant's wife. The appellant and Mr Salim then left the Toyota, one moving to the white truck and the other staying with the driver of the Lexis. This interaction was captured on closed‑circuit television. Soon after that, police arrived at the scene. The parties continued to argue and the police had to separate the two parties to avoid further conflict. While the police were talking to others the appellant continued to threaten Mr Leon. Police were witnesses to the appellant's making threats using bad language to Mr Leon. The bad language clearly indicates that he was very upset, perhaps an appropriate word would be "outraged". 13. The police gave all parties a move on direction from the area until such time as they could ascertain what had actually happened. To do that they reviewed closed‑circuit television from nearby premises. Later on, the same day the police took statements from Mr Leon and Ms Quesada and at 8:40pm that evening they attended the appellant's residence and arrested him. 14. There were a number of procedural irregularities in the running of the case in the Local Court which were addressed at some length by the learned magistrate in reasons given on 28 March 2023. The sentencing hearing appears to have occurred on 11 April and his Honour, Magistrate Donnelly, gave his reasons for judgment on 12 May 2023. Those reasons can be conveniently found in R v Saleh; R v Salim [2023] NSWLC 2. 15. His Honour declined to impose a sentence of imprisonment to be served by way of intensive correction in the community because his Honour did not believe that that would be a sufficient punishment for what he regarded as serious offences of assault occasioning actual bodily harm and common assault. One can easily understand that, when one considers that the sentencing assessment report bearing date 28 February 2023 said this: "Due to Mr Saleh's T1/low risk of re‑offending, if the Court makes a supervised order, Community Corrections will monitor him for any indicators of increased risk. Mr Saleh will be required to advise of any change to his address or contact details, and any significant changes to his circumstances. Community Corrections will receive an automatic notification if he has contact with the NSW Police Force or enters an NSW correctional centre. Mr Saleh will not be required to participate in face‑to‑face reporting with a Community Corrections officer. However, if an automatic notification or any other information indicates that his risk of re‑offending has increased, Community Corrections will review the case. This review may result in Community Corrections commencing face‑to‑face reporting with Mr Saleh or submitting a breach report. Mr Saleh should telephone the Sutherland Community Corrections office within seven days to receive instructions about his obligations. RECOMMENDED ORDER CONDITIONS Community Corrections considers that no conditions other than a supervision condition are required to implement the supervision plan above. COMMUNITY SERVICE ASSESSMENT Community Corrections has assessed Mr Saleh is suitable to undertake community service work. Community Corrections can provide the equivalent of up to 21 hours of work per month." 1. Provided that the appellant did not have any adverse interaction with the NSW Police during the period of the head sentence of 22 months then essentially, he was merely required to be of good behaviour, albeit that the learned magistrate could have imposed some community service order. 2. At [55] of his reasons the learned magistrate formally found that serving a sentence by way of an Intensive Correction Order (ICO) would more likely address any risk of re‑offending than a sentence of full‑time detention. In making that finding his Honour referred to Stanley v DPP (NSW) [2023] HCA 3 and Zheng v R [2023] NSWCCA 64 at [290]. 3. His Honour then considered the case law referring to whether an ICO might meet the perceived seriousness of the offence. His Honour went on to say this: "72. Applying these principles in the case of Mr Saleh 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 into the upper range of objective seriousness of the assault occasioning actual bodily harm and the related findings regarding [the] 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) [1998] HCA 14; (1988) 164 CLR 465 by reference to the objective gravity of the offence. An intensive correction order also would not meet the purposes of sentencing of general deterrence. In this case the purpose of sentence 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." 1. I must point out that the sentencing assessment report before the learned magistrate contained under the heading "Insight into Impact of Offending" the following: "● Mr Saleh reported that in hindsight, he feels very bad about what happened, and it is etched in his memory, along with regrets regarding his behaviour. ● Mr Saleh had now recognised that he could have handled this situation more appropriately by taking the time to ascertain what had occurred before reacting in the way he did. ● Mr Saleh reported feeling very sorry for the victims and now understands that they would have been fearful of how he had behaved. ● Mr Saleh gave an assurance that he would never react like that again and that there was no excuse for it. Mr Hussein denied any issues with anger management, although conceded this was a very bad example of how he reacted on this occasion." 1. That to me speaks of contrition and remorse on the part of the appellant which is not reflected in my view in his Honour's comments. His Honour took a very severe view of what had happened but it must be borne in mind that the actual bodily harm suffered by Mr Leon appears to have only been superficial, that is, that there were some red marks and bruises at the back of his head behind his right ear and at the back of his skull. There was no suggestion that Ms Quesada suffered from any actual bodily harm. 2. The circumstances occurred during a time when there were many, many frustrated people in the cities of Australia reacting to the COVID-19 pandemic and the many restrictions that were placed upon people and it is clear that Mr Saleh and also Mr Salim were concerned about their ability to continue to do their work during the pandemic. One can understand that a man when told by his wife on the telephone that she was in a car with their one‑year‑old child and her mother and that there was some disquiet, upset, annoyance, bad interaction between herself and another motorist and his passenger might overreact adversely to the situation, and that appears to be what happened here. Fortunately, it appears that no severe damage was done to either victim. 3. Since the matter first came before me and bearing in mind the submissions that were put to me by Mr James KC, I referred the matter back to Community Corrections for a further sentencing assessment report with a consideration to home detention. Community Corrections had determined that the appellant's accommodation is suitable for a period of home detention and that there were no risks associated with the appellant's serving a sentence by way of home detention condition. 4. Mr Saleh will continue to be monitored at a low supervision level, but he will have contact with a Community Corrections Officer every eight weeks. Again, the appellant was found to be suitable to undertake community service work for a period of up to 21 hours of work per month. 5. Under s 73A(4) I am permitted to limit the period during which an additional condition of an ICO operates on an ICO in force. I have taken the view that I should impose an ICO, that I should require home detention for the period of 14 months and that during the balance of the term the appellant can undertake community service work for a period of 150 hours. 6. For those reasons I set aside the sentence imposed by the Local Court at Sutherland on 12 May 2023. I shall impose a sentence similar to that of the learned magistrate. For Sequence 3 I give an indicative sentence of eight months imprisonment after allowing a discount of 25% for the early plea of guilty. For the Sequence 7 offence I give an indicative sentence of 20 months imprisonment after allowing for a 25% discount for the offender's early plea of guilty. I impose an aggregate sentence of 22 months. 7. Hessein Saleh, I sentence you to imprisonment for a term of one year and ten months commencing today, 25 September 2023, to be served by way of intensive correction in the community. Terms of the order are: firstly, you must not commit any offence; secondly, you must submit to supervision by a Community Corrections Officer; thirdly, you are subject to home detention for the initial 14 months of the sentence pursuant to s 73A(4) of the Crimes (Sentencing Procedure) Act 1999; fourthly, you must complete community service work for 150 hours. You are to report to the Community Corrections Office at Sutherland today, 25 September 2023. 8. Any other orders sought in Mr Saleh's case? 9. SPEAKER: No, if your Honour please.