SALAH, Dror v R [2009] NSWCCA 2

SALAH, Dror v R [2009] NSWCCA 2

The only sentencing error was the procedural failure to impose the non-parole period first as required by s 44 of the Crimes (Sentencing Procedure) Act 1999. The challenged factual findings were open, the 10% plea discount was within discretion, the offence could be treated as objectively serious, no contrition or further allowance for provocation or protective custody was shown to have been wrongly denied, and the sentence was not manifestly excessive. The sentence was therefore quashed and reimposed in the same substantive terms to comply with s 44, with the appeal otherwise dismissed.

Jurisdiction
Australia
Judgment Date
02 February 2009
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed only to the extent necessary to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999; sentence otherwise confirmed and appeal otherwise dismissed.
Legal Topics
['manslaughter' 'excessive Self Defence' 'discount for Guilty Plea' 'manifest Excess' 'objective Seriousness' 'protective Custody' 'special Circumstances' 'non Parole Period']
['criminal Law' 'sentencing'] ['manslaughter' 'excessive Self Defence' 'discount for Guilty Plea' 'manifest Excess' 'objective Seriousness' 'protective Custody' 'special Circumstances' 'non Parole Period']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in applying a 10% discount for the guilty plea.' 'Whether the sentencing judge erred in finding that Mr Salah heard a warning that the deceased had a knife.' 'Whether the sentencing judge erred in finding the offence was an objectively serious offence of manslaughter.' 'Whether the sentencing judge erred in finding that Mr Salah had not demonstrated contrition.' 'Whether the sentencing judge failed to take into account provocative conduct by the deceased.' 'Whether sufficient allowance was made for time spent in protective custody.' 'Whether the sentence complied with s 44 of the Crimes (Sentencing Procedure) Act 1999 and whether special circumstances were properly addressed.' 'Whether the sentence was manifestly excessive.']

Ratio Decidendi

The only sentencing error was the procedural failure to impose the non-parole period first as required by s 44 of the Crimes (Sentencing Procedure) Act 1999. The challenged factual findings were open, the 10% plea discount was within discretion, the offence could be treated as objectively serious, no contrition or further allowance for provocation or protective custody was shown to have been wrongly denied, and the sentence was not manifestly excessive. The sentence was therefore quashed and reimposed in the same substantive terms to comply with s 44, with the appeal otherwise dismissed.

Court Disposition

Leave to appeal granted; appeal allowed only to the extent necessary to comply with s 44 of the Crimes (Sentencing Procedure) Act 1999; sentence otherwise confirmed and appeal otherwise dismissed.

Orders

  • ['Leave to appeal be granted;' '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;' 'The sentence imposed by Johnson J on Mr Dror Salah on 4 April 2008 be quashed and in lieu thereof Mr Salah be...