R v Salameh [1999] NSWCCA 300

New South Wales Court of Criminal Appeal CITATION : R v Salameh [1999] NSWCCA 300 FILE NUMBER(S) : CCA 60829/98 HEARING DATE(S) : 17/9/99 JUDGMENT DATE : 17 September 1999

PARTIES : Regina (NSW) Sami Salameh JUDGMENT OF : Wood CJ at CL; Newman J; Foster AJ

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : L023/96 LOWER COURT JUDICIAL OFFICER : McInerney J

COUNSEL : T. Golding for Applicant P.G. Berman for Crown SOLICITORS : T.A. Murphy for Applicant S.E. O'Connor for Crown CATCHWORDS : CRIMINAL LAW - appeals - sentencing appeal - redetermination of life sentence - relevance of sentences imposed subsequent to the oife sentence - principle of totality - whether sentence manifestly excessive DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

060829/98 WOOD CJ at CL NEWMAN J FOSTER AJ

FRIDAY 17 SEPTEMBER 1999

REGINA v SAMI SALAMEH

JUDGMENT

1 WOOD CJ at CL: The applicant seeks leave to appeal from a re-determination under section 13A of the Sentencing Act 1989, of a life sentence originally imposed on him by McInerney J on 14 April 1989, and backdated to 18 July 1987, that being the date of arrest. 2 On 15 December 1998, his Honour re-determined that sentence and, in place of the life sentence, imposed a sentence comprising a minimum term of twenty-three years' penal servitude, similarly backdated to 18 July 1987, and an additional term for the remainder of the applicant's natural life.

The Offence 3 The offence of murder was committed on 26 May 1987. On that day the applicant and his co-offender, Billy Cox, stole a motor vehicle. At about midday they entered a jewellery shop owned by the victim and his family. Their premises were selected because they were seen to be a 'soft target'. 4 Each offender was armed with a shortened pump-action shotgun and was disguised with a stocking over his face. The applicant was also wearing socks on his hands to avoid leaving fingerprints behind. The shotgun carried by the applicant was loaded with two cartridges; it was pumped and the safety catch was disengaged. 5 Cox stayed at the door while the applicant went behind the glass display counters which he smashed with the butt of the weapon. Jewellery was removed from the display cases and handed to Cox. 6 Members of the victim's family were in the store at the time. The victim, who was at the rear of the premises, entered the store front where he confronted the applicant. Almost immediately the shotgun of the applicant was discharged into his chest. He died within one or two minutes from the massive effects of a shotgun blast discharged at close range. 7 The applicant pleaded not guilty at his trial but was convicted. At the hearing of the section 13A application, his Honour acceded to the invitation to deal with the offence upon the basis of felony murder rather than as a case of specific intent. His Honour said that he was not able to find, beyond reasonable doubt, that the applicant had deliberately pulled the trigger with the intention required for murder, although he had some suspicions in that regard, related in particular to the ballistics tests which showed the weapon was not prone to accidental discharge. 8 The objective criminality of the applicant his Honour assessed as follows: "This was a most serious offence. The applicant entered the premises disguised, with a shotgun pumped and the safety catch off ready to fire. Even allowing for what the applicant alleged was an accidental discharge, which I have some doubt about, to go into a jewellery shop to effect a robbery with a shotgun fully loaded ready to fire indicates that the applicant contemplated the use of that weapon if he was thwarted in his attempt to carry out the robbery". 9 His Honour's description of the seriousness of the offence could not in any way be challenged. It was not questioned on this application. Moreover, any suggestion to the effect that felony murder is a less serious offence than one involving a specific intent should, in my view, be rejected as lacking in foundation. Indeed in Mills, Court of Criminal Appeal, 3 April 1995 Gleeson CJ rejected such a proposition. 10 In addition to the conviction for murder the applicant was also found to have been guilty of larceny of a motor vehicle and of possession of a shortened firearm. He was sentenced by his Honour to imprisonment for four years and eight years respectively for those offences. By reason of the life sentence, his Honour declined to set any non-parole period for either offence.