New South Wales Court of Criminal Appeal CITATION: SALAH, Dror v R [2009] NSWCCA 2 HEARING DATE(S): 2 October 2008 JUDGMENT DATE: 2 February 2009 JUDGMENT OF: Bell JA at 1; Rothman J at 2; Price J at 45 (i) Leave to appeal be granted; (ii) The appeal against the sentence imposed by his Honour Johnson J be allowed only to the extent necessary to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999; DECISION: (iii) The sentence imposed by Johnson J on Mr Dror Salah on 4 April 2008 be quashed and in lieu thereof Mr Salah be sentenced for the manslaughter of Hernan Dario Guelman to a non-parole period of 5 years and 9 months commencing 7 August 2006 and expiring on 6 May 2012 with the balance of term of 3 years expiring on 6 May 2015. Mr Salah remains first eligible for parole on 6 May 2012; (iv) Otherwise the appeal be dismissed. CATCHWORDS: CRIMINAL LAW – appeal – sentencing – discount for plea – manifest excess – finding of fact – objectively serious offence – allowance for provocation and protective custody – sentence within range – re-sentence to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999, otherwise appeal dismissed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CATEGORY: Principal judgment R v Ahmad [2006] NSWCCA 177 R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported) R v Dodd (1991) 57 A Crim R 349 R v Edwards (1996) 90 A Crim R 510 CASES CITED : R v Harmouche [2005] NSWCCA 398; (2005) 158 A Crim R 357 R v Hill (1981) 3 A Crim R 397 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104 R v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 PARTIES: Dror Salah (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/00002476 COUNSEL: A J Bellanto QC (Applicant) P M MIller (Respondent) SOLICITORS: Uther Webster & Evans (Applicant) Director of Public Prosecutions (Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2007/2476 LOWER COURT JUDICIAL OFFICER: Johnson J LOWER COURT DATE OF DECISION: 4 April 2008 LOWER COURT MEDIUM NEUTRAL CITATION: R v Dror Salah; R v Ezra Salah [2008] NSWSC 311 IN THE COURT OF CRIMINAL APPEAL 2007/00002476 BELL JA ROTHMAN J PRICE J 2 FEBRUARY 2009 SALAH, Dror v R Judgment 1 BELL JA: I agree with Rothman J. 2 ROTHMAN J: Mr Dror Salah seeks leave to appeal the sentence imposed upon him for manslaughter by Johnson J on 4 April 2008. Justice Johnson sentenced Mr Salah to a non-parole period of 5 years and 9 months with the remainder of sentence of a further 3 years. 3 Mr Salah pleaded guilty to manslaughter, having been indicted for murder, on the sixth day of the trial, which plea the Crown accepted in full satisfaction of the indictment. At the time that the plea was entered, most of the witnesses to the incident had already given evidence. That evidence, together with an agreed statement of facts, was taken into account by his Honour. The basis of the plea of manslaughter was excessive self-defence. The maximum penalty that may have been imposed by the Court, for this offence, was 25 years' imprisonment. 4 Save as to one aspect, the findings of fact by his Honour are not in dispute. The one aspect relates to a finding that Mr Salah heard a warning given to him by Mr Arazi prior to the incident that led to the death of the victim, Mr Guelman. The incident occurred on 5 August 2006 at Bondi Beach. 5 Mr Salah presses eight grounds, on which he relies for the grant of leave to appeal, and if leave be granted, for the appeal: (i) His Honour erred in applying an inadequate discount of 10%; (ii) His Honour erred by finding that Mr Salah heard Mr Arazi's warning; (iii) His Honour erred in finding that this was an objectively serious offence of manslaughter … in circumstances where Mr Salah was acting in self defence, albeit excessively; (iv) His Honour erred in finding that Mr Salah had not demonstrated contrition; (v) His Honour erred in failing to take into account the provocative conduct of Mr Guelman; (vi) His Honour erred in not allowing a sufficient and proper discount for the period of time spent by Mr Salah in protective custody; (vii) His Honour erred in failing to give reasons for finding special circumstances (and erred in not first imposing the non-parole period); (viii) The sentence was manifestly excessive. Facts 6 It is unnecessary to repeat all of the facts upon which his Honour relied and which his Honour set out from [3] of the Remarks on Sentence. His Honour was required to sentence both Mr Salah and his brother Ezra. Each of them and Mr Guelman were Israeli nationals. Mr Guelman frequented a cafe in Bondi, located near a business conducted by Mr Salah. 7 In the morning of 5 August 2006, Mr Salah and Mr Guelman were involved in an altercation, during which Mr Guelman offended Mr Salah by calling him "an Arab". Mr Guelman threatened to kill Mr Salah. Mr Guelman punched Mr Salah in the side of the head, pulled his hair and tried to punch him again. At that point, Mr Salah pushed Mr Guelman's head into the windscreen of a vehicle, cracking the windscreen. 8 Mr Salah returned home after the incident. That night, shortly after 9.00pm, Mr Guelman entered the cafe to which I have earlier referred. Mr Guelman was anxious and angry and told Mr Arazi of the earlier incident. Mr Guelman also told another person in the cafe, Mr Nisanov. Mr Nisanov left the cafe, walked down the street, and, on seeing Mr Salah, headed towards him. Mr Salah was driving a green four-wheel-drive vehicle, with his brother in the front passenger seat. Mr Nisanov "told [Mr Salah]" and his brother that "the deceased was looking for him and confirmed that the deceased was at [the cafe]". The cited words are from paragraph 5 on page 2 of the Agreed Facts on Sentence (Exhibit B on Sentence) and are similar to evidence given by Mr Nisanov at Transcript page 331 ("the first warning"). 9 Mr Salah and his brother, Ezra, drove past the cafe and looked inside. As they did so, Mr Guelman ran into the kitchen of the cafe, grabbed a red-handled Victorinox knife and left the cafe. As he left the cafe, Mr Guelman held his hands (with the knife) under his shirt. On seeing Mr Guelman obtain the knife, Mr Arazi ran to the front passenger side of Mr Salah's vehicle and warned ("the second warning") both Mr Salah and his brother with the following words: "He just go to the kitchen, grabbed a knife, just get out of here". (Transcript page 255) (Remarks on Sentence at [10]). On the same page of transcript, there is another version of the second warning, being: "Just get out of here. He grabbed a knife and he is going to go crazy". There is no substantive difference between these two versions. Mr Arazi gave evidence that he "told them" one or other of those versions. While his Honour conceded that it was "unclear as to whether the passenger window was open at the time" his Honour was satisfied that the words were said, and was "satisfied beyond reasonable doubt that Mr Arazi … warned" Mr Salah and his brother. 10 Mr Salah drove the vehicle around the corner and pulled in towards the kerb. At that point, Mr Arazi ran to the car and gave another warning to Mr Salah and his brother saying: "Get out of here" ("the third warning"). 11 Soon after, Mr Guelman walked the short distance to the intersection, turned left and approached Mr Salah's car. There was an altercation between Mr Guelman and Mr Salah's brother, Ezra, in which Mr Guelman closed the car door on Ezra's hand, causing a fracture. Ezra left the car and Mr Guelman cut him, on the hand, with the knife. 12 Mr Salah left the vehicle, carrying a length of metal vacuum cleaner pole, in an effort to go to the assistance of his brother. Mr Guelman brandished the knife at Mr Salah and tried to stab him. Mr Salah hit the deceased on the head and body with the vacuum cleaner pole, at least four times, pushing him back towards the wall of the adjacent shop. Mr Salah grabbed the knife from the deceased, and in doing so sustained a 28 mm "y-shaped" cut between the thumb and forefinger of his right hand. Having grabbed the knife, Mr Salah stabbed Mr Guelman six times in a struggle. Five of those stab wounds were to the front of Mr Guelman's body, in the area of his left chest, upper right thigh and left leg. The sixth wound was in the back up-left abdomen. Two of those wounds were immediately life threatening. One such stab wound had punctured the aorta; the other cut the femoral artery. The latter caused immediate and massive bleeding. When the blood pooled at the feet of Mr Guelman, Mr Salah stepped back and Mr Guelman collapsed to the ground. Mr Salah picked up the knife and part of the pole (one part having separated) and he and his brother ran to the car and drove off. 13 Following the incident, an ambulance, which had arrived within minutes, took Mr Guelman to the hospital, arriving at 10.05pm, where surgery was performed to repair the femoral artery, but Mr Guelman died at 4.10am the next morning (6 August 2006). 14 While the above has largely been taken from the summary of the facts of his Honour (and parts of it are directly quoted therefrom), what I have referred to as "the second warning", his Honour referred to as "the first warning", his Honour ignoring, for that purpose, the conversation referred to at Paragraph [8] above. Consequently, his Honour refers only to two warnings. Ground (i): Discount For Plea 15 I accept, as submitted on behalf of Mr Salah, that the Crown would not, at committal (or at any substantive time before the plea was entered), accept a plea for manslaughter (or any lesser charge) in full satisfaction of the indictment for murder. 16 Mr Salah was entitled to a discount on his sentence by reason of his plea of guilty (ss 21A(3)(k) and 22 of the Crimes (Sentencing Procedure) Act 1999) to reflect the utilitarian benefit to the administration of justice in the timing of the plea: R v Thompson; R v Houlton (2000) 49 NSWLR 383; 115 A Crim R 104 at [160]. There is little doubt that the plea on day six of the trial (following discussions with the Crown on day five) saved approximately five weeks of hearing time and the consequent inconvenience to witnesses and jurors and associated costs of the trial. 17 The range of discount for a plea of guilty is between 10% and 25%, the lowest figures often being utilised for pleas entered after the first day of trial. However, the amount of any such discount is a matter within the discretion of the sentencing judge. 18 It was open to Mr Salah to have indicated, formally or informally, at or before the committal proceedings, or on indictment in this Court, that he pleaded not guilty to murder, but guilty of manslaughter. There is no evidence to suggest any substantially earlier indication, even informally, by Mr Salah that he was prepared to plead to manslaughter. 19 The utilitarian benefit to the administration of justice to which this Court referred in R v Thompson and Houlton, supra, includes evidence gathering, the costs of preparing for trial and the inconvenience to and costs of the jury: R v Harmouche [2005] NSWCCA 398; (2005) 158 A Crim R 357 at [39]-[40]. This plea was entered more than a week after the commencement of the trial. As earlier stated, the plea saved some significant court time. If no court time were to have been saved, there would be little or no discount. 20 The discount of 10% applied by his Honour was, in the circumstances, within the range available and within the discretion available to his Honour. This ground of appeal fails. Ground (ii): The Finding That The Warning Was Heard 21 As earlier stated, this ground relates to the warning, referred to in his Honour's judgment as the second warning, being the conversation recited at paragraph [9] above. The submission asserts that the evidence did not support a finding that Mr Salah heard this warning. Essentially, the submission is based upon the finding of his Honour that it was "unclear" whether the passenger window of the car was open at the time that the words were spoken. Because the proof of facts adverse to Mr Salah must be proved beyond reasonable doubt (R v Olbrich [1999] HCA 54; 199 CLR 270), it is submitted that the possibility that the window of the car was closed has the result that the hearing of the warning was not proved to the requisite standard and could not be relied upon by his Honour. 22 The evidence, relevantly summarised above, is to the effect that Mr Arazi "told" Mr Salah that which was recited. The mere fact that the window of the car was closed, if that were the case, does not qualify that evidence to such a degree that it would disentitle his Honour from finding, to the requisite standard, that the warning was heard. 23 The subsequent conduct of Mr Salah and his brother is consistent with their knowledge that Mr Guelman had acted in a way of which Mr Arazi had spoken. The Crown relies on answers given by Mr Salah in a record of interview. The agreed facts refers to Mr Salah's brother, Ezra, receiving a phone call warning him that Mr Guelman was waiting for them with two knives in his pocket [Agreed Facts on Sentence at page 4(b)]. The Agreed Facts also refer (at the same page at (e)) to the window of the car being open and to Mr Salah and his brother being "told" of the likely actions of Mr Guelman, with reference to the record of interview of Mr Salah at Q551 – Q553, and in particular at Q547. The finding of fact, as to the warning, was open to his Honour, and this ground of appeal also fails. Ground (iii): Finding Of Objective Seriousness 24 Mr Salah submits that his Honour erred in finding that this was an objectively serious offence of manslaughter. In so doing, his Honour elevated the role of Mr Salah to a serious example of manslaughter, in circumstances where Mr Salah was acting in self-defence. Further, Mr Salah criticises his Honour's Remarks for taking into account, in assessing objective seriousness, that Mr Salah did not drive away from the scene in circumstances where Mr Guelman may have been obstructing the vehicle. 25 Notwithstanding the submission that some of these matters were incapable of proof beyond a reasonable doubt, each of them reflects the evidence before his Honour, both oral evidence and the Statement of Agreed Facts. It seems that the submission on the standard of proof relates to the existence of the warning and whether it was heard and, in that regard, repeats the earlier ground of appeal. 26 There can be no doubt, given the existence of the conversation that I have referred to as the first warning, the telephone call to which reference has earlier made and the later warnings, that Mr Salah had ample opportunity to drive away from the scene, to avoid any confrontation, and to avoid placing himself in what he understood would be a dangerous situation. On one view of the evidence, Mr Salah welcomed and/or sought out the confrontation. It is unnecessary to develop that view. It is sufficient to remark that his Honour's findings, in this regard, were open to his Honour, were relevant to the objective seriousness of the offence for which sentence was to be imposed, and rendered the manslaughter in question a more serious offence than would otherwise have been the case. The finding that this particular offence was an objectively serious offence of manslaughter was open to his Honour, and this ground of appeal also fails. Ground (iv): Finding Of Lack Of Contrition 27 Mr Salah refers to the fact that he handed himself into Waverley Police Station on the evening of 7 August 2006 (this is two days after the offence and a day after the demise of Mr Guelman), that a number of phone calls to others were made by Mr Salah to enquire as to Mr Guelman's injuries or health, and that Mr Salah requested his girlfriend to take his clothes (and those of his brother) to the police. This, Mr Salah submits, together with the fact that he was originally charged with murder, evidences some remorse, to which his Honour failed to have regard in a finding that Mr Salah had not demonstrated contrition and, consequently, failing to take contrition into account as a mitigating factor on sentence. 28 Mr Salah's attendance on the Police, and the instruction to provide them with the clothing, is equally consistent with a genuine voluntary desire to cooperate and also with a realisation of the strength of the case against him, in circumstances where there were a number of witnesses to the event who knew him and could identify him. Further, Mr Salah's telephone calls enquiring of Mr Guelman's condition are equally consistent with remorse and with an attempt to ascertain the consequences of Mr Salah's actions. 29 Mr Salah presented no other material, and gave no evidence, oral or otherwise, expressing any contrition for that which had occurred. His Honour (Remarks on Sentence at [37]) expressly determined that the telephone conversations did not demonstrate remorse and that otherwise Mr Salah did not demonstrate remorse. This finding was open to his Honour and the ground of appeal fails. Ground (v): Failure To Take Into Account The Deceased's Provocative Conduct 30 There are two aspects to this submission. There can be little doubt that his Honour was aware of the facts, recited them, and took them into account. The first of the two aspects is the conduct of Mr Guelman earlier in the day to which his Honour expressly refers (Remarks on Sentence at [38]). He did not consider the earlier altercation and the verbal abuse constituted provocative conduct of the kind, which would mitigate the offence. If this ground of appeal were directed at that earlier conduct, his Honour expressly referred to it, and expressly rejected it as provocation of the kind that would ameliorate the sentence. This finding was open to his Honour. 31 If, on the other hand, the submission were referring, as seems to be the case, to the fact that Mr Guelman was the aggressor in the incident and Mr Salah felt under threat, this is a necessary element of the manslaughter, in that, Mr Salah's subjective belief that he was required to defend himself was the only basis upon which the offence was manslaughter, and not murder. While that subjective element may be present without the objective existence of aggression on the part of Mr Guelman, the circumstance of the aggression in the incident itself is so much a part of the feature of the offence for which sentence was imposed that it is inconceivable that his Honour failed to take into account that aspect. This ground of appeal is also rejected. Ground (vi): Insufficient Discount For Protective Custody 32 His Honour expressly refers to, and accepts, that protective custody involves greater hardship than ordinary custody and, on the material before his Honour, this referred to Mr Salah's custodial history. Mr Salah submits that no clear discount is expressed. It is unnecessary (and may be overly mathematical) for discounts to be expressed in relation to every factor considered by his Honour. His Honour refers to the greater hardship and the submission that his Honour did not have appropriate regard to that circumstance is not made out. As to the issue of future terms of incarceration, his Honour seems, quite properly, to have given no discount in that regard. The terms of that custody were a matter of speculation and there was no evidence before the Court, or his Honour, as to the nature and extent of protection, if any, that would be imposed on Mr Salah: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [178], [179]. Ground (vii): Special Circumstances and Order of Sentencing 33 It is unclear how it can be said that Mr Salah is prejudiced by any error in this regard. Section 44 of the Crimes (Sentencing Procedure) Act 1999 requires that, in imposing a sentence, the non-parole period shall be imposed first. This is a wholly procedural issue, which does not affect the sentence imposed. His Honour, an extremely experienced sentencing judge, seems to have reverted to the practice prior to the recent amendments. Nevertheless, it is a requirement of the Act and, without altering the sentence in that regard, will be implemented. 34 Further, within the total sentence imposed, his Honour has reduced the non-parole period from the statutory ratio of 3:1. Mr Salah has obtained a benefit from that course. 35 His Honour expressly found special circumstances, but did not give reasons. However, the absence of any substantial criminal record, the otherwise good character of Mr Salah, and the lack of a substantial likelihood of reoffending allow special circumstances to be found, and, notwithstanding the absence of reasons below, I would confirm his Honour's approach. Ground (viii): Manifest Excess 36 As has been stated on a number of occasions, the principles that govern interference with sentencing stress the discretionary nature of the exercise and the limited basis upon which an appeal court will interfere with the sentence imposed. A party seeking to alter a sentence imposed must convince the appeal court of some identified or manifest error by the sentencing judge. There is, as has been set out above, in my view, no identified error. Manifest error is displayed when the sentence imposed is manifestly excessive (or in the case of Crown appeals, manifestly inadequate), and the sentence must, in that regard, be outside the range appropriate for the particular offence. 37 Manslaughter is an offence for which there is an extremely wide range of culpability and a correspondingly extremely wide range of appropriate sentences: see R v Warren Alan Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1, per Spigelman CJ at [133]-[135]; R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397; R v Blacklidge (Court of Criminal Appeal, Gleeson CJ, 12 December 1995, unreported). A form of "comparative sentencing justice" cannot form the basis for manifest excess; there is no doctrine of parity for offenders other than co-offenders. It is necessary for an appellant to show sufficient to the Court to establish the range of sentence available and that the offence in question is outside of it, such that the Court can find that the sentence is unreasonable or plainly unjust. Notwithstanding the wide range of offences that are within manslaughter, there is still an appropriate range of sentence, and, even though the range may be difficult to ascertain, the Court is still required to determine whether the sentence imposed is outside it and, consequently, manifestly excessive. 38 There is no doubt that the offence here in question, and the circumstances of Mr Salah, render this not in the worst category. But his Honour has not imposed the maximum sentence or anything approaching it. Manslaughter involves the felonious taking of human life (R v Edwards (1996) 90 A Crim R 510) and, when it arises as a result of self-defence, involves an intention to kill, an intention to cause grievous bodily harm or an indifference to human life. 39 The fact that it involves excessive self-defence is the reason the offence is manslaughter, and not murder, and self-defence cannot, of itself, be double-counted in the assessment of the offence. There are many cases involving no self-defence that are far less serious than this offence, e.g. the assault that, but for an accidental knocking of the head or other like accidental injury, would be, at worst, common assault. Even within the offence of manslaughter involving excessive self-defence, the circumstances of this offence render it more serious than most. Even though Mr Salah used the knife the victim brought to the crime scene, and which the victim intended to use against Mr Salah, Mr Salah went willingly to the altercation, armed with a metal pipe, despite knowledge that the victim was armed with a knife. 40 The Crown and Mr Salah rely on Judicial Commission statistics and summaries of other judgments. Statistics are, in this area, to be used even more carefully than usually: Blacklidge, supra. Generally, the slavish adherence to statistics would render sentencing a mechanical and self-fulfilling exercise. In this area, because of the range of circumstances necessarily encompassed by the offence of manslaughter, regard must be had to the differential aspects of each offence. 41 Reference to the cited cases reveals the range of circumstances and the range of sentences imposed. In R v Ahmad [2006] NSWCCA 177, the sentence to be imposed arose out of a fight between factions of a local community (a not dissimilar circumstance) for which the sentence imposed for manslaughter was a non-parole period of 6 years and a remainder of a further 3 years and 4 months. Mr Salah seeks to distinguish Ahmad on the basis that other offences were involved. But those other offences do not seem to have had the effect of lengthening the sentence for manslaughter, and were the subject of separate punishment. There are, as one would expect, other distinguishing features: the use of a firearm; a finding of intent to kill; and the weapon used was brought to the scene by the offender. But, in Ahmad, there was a more significant discount for the plea, and the sentence imposed was longer than that imposed in this case. 42 The sentence imposed by his Honour, for this particular offence and the subjective circumstances of this particular offender, is not beyond the range. The Court should not interfere with the sentence imposed. 43 There is no one correct sentence, and the test for interference by this Court, in the sentence imposed, has not been satisfied. Further, pursuant to the terms of s 6(3) of the Criminal Appeal Act 1912, the Court would need to be satisfied that another, relevantly lower, sentence was warranted. I am not so satisfied. The appeal on the ground of manifest excess also fails. Proposed Orders 44 As earlier stated, the sentence should be confirmed, but imposed in accordance with s 44 of the Crimes (Sentencing Procedure) Act. In that circumstance, I propose that the Court make the following orders: (i) Leave to appeal be granted; (ii) The appeal against the sentence imposed by his Honour Johnson J be allowed only to the extent necessary to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999; (iii) The sentence imposed by Johnson J on Mr Dror Salah on 4 April 2008 be quashed and in lieu thereof Mr Salah be sentenced for the manslaughter of Hernan Dario Guelman to a non-parole period of 5 years and 9 months commencing 7 August 2006 and expiring on 6 May 2012 with the balance of term of 3 years expiring on 6 May 2015. Mr Salah remains first eligible for parole on 6 May 2012; (iv) Otherwise the appeal be dismissed. 45 PRICE J: I agree with Rothman J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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