R v Dror Salah; R v Ezra Salah

Crimes Act 1900 LEGISLATION CITED : Migration Act 1958 (Cth) Crimes (Sentencing Procedure) Act 1999

Shreshtha v The Queen (1991) 173 CLR 48 R v Trevenna (2004) 149 A Crim R 505 R v Cakovski [2005] NSWSC 1001 CASES CITED : Ahmad v R [2006] NSWCCA 177 R v Abdulrahman [2007] NSWSC 578 R v Walsh and Sharp (2004) 142 A Crim R 140 R v Hawken (1986) 27 A Crim R 32 R v Do (NSWCCA, 7 May 1997)

Dror Salah (Offender) PARTIES : Ezra Salah (Offender) Regina (Crown)

FILE NUMBER(S) : SC 2007/2476 (Dror Salah); 2007/2477 (Ezra Salah)

Mr WC Terracini SC (Dror Salah) COUNSEL : Mr AJ Bellanto QC (Ezra Salah) Mr AJ Robertson (Crown)

Archbold Legal Solutions (Dror Salah) SOLICITORS : Uther Webster & Evans (Ezra Salah) Director of Public Prosecutions (NSW) (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

2007/2476 Regina v Dror Salah 2007/2477 Regina v Ezra Salah

SENTENCE 1 JOHNSON J: On 3 March 2008, the trial of Dror Salah and Ezra Salah commenced before a jury upon a charge that, on 5 August 2006, at Bondi Beach in the State of New South Wales each did murder Hernan Dario Guelman. On 10 March 2008, Dror Salah pleaded guilty to manslaughter and Ezra Salah pleaded guilty to accessory after the fact to manslaughter. The Crown accepted each plea of guilty in satisfaction of the indictment and the jury was discharged. 2 Following a sentencing hearing on 13 March 2008, the proceedings were adjourned until today for sentence to be passed upon each offender.

The Offences 3 An agreed statement of facts was tendered at the sentencing hearing. In addition, I have had regard to aspects of the evidence of witnesses given during the trial which were touched upon in submissions. The following account is drawn from the agreed statement of facts, except where reference is made to the transcript of evidence of particular witnesses. 4 The two offenders are brothers. Dror is 33 years old and Ezra is 32 years of age. Both are Israeli nationals as was the deceased, Mr Guelman. 5 The deceased was 38 years old at the time of his death. He lived at Bondi and frequented the Zinzana Café, which was located in Glenayr Avenue near the intersection with Curlewis Street, Bondi. 6 During the late morning of 5 August 2006, the deceased and Dror had an altercation in a shop in Hall Street, Bondi. During the argument, the deceased offended Dror by calling him "an Arab". The deceased threatened to kill Dror. The two men left the shop and crossed the road. As they approached the opposite kerb, the deceased punched Dror in the side of the head. They kept walking and the deceased pulled Dror's hair and tried to punch him again. At about that point, they were in the vicinity of Dror's car, a small red Mitsubishi. Dror pushed the deceased's head into the windscreen of the vehicle, cracking the windscreen. 7 After this incident, Dror drove to his home in Vaucluse. He related the incident to his partner, Michelle Stratford. She observed swelling on Dror's nose and a cut between his nose and left eye. He also had a bleeding thumb, but no blood on his clothes. These injuries were confirmed by a subsequent medical examination. 8 Dror left his home for several hours and returned in the late afternoon. He left the house that evening after receiving a call from Ezra, informing Ms Stratford that someone was threatening him and the family and the business and that he was going to see his brother. 9 Shortly after 9.00 pm, the deceased walked into the Zinzana Café. Dagan Arazi was seated at a table with his friend, Ilan Tzemach. The deceased appeared anxious and angry and told Mr Arazi about the earlier incident. Also in the café was Faig Nisanov. The deceased told Mr Nisanov that he would kill the Salah brothers. Mr Nisanov left the Zinzana Café and walked down Glenayr Avenue away from the intersection of Curlewis Street and Glenayr Avenue, Bondi. Mr Nisanov saw Dror driving a green Mitsubishi Pajero along Glenayr Avenue heading towards the Zinzana Café. Ezra was in the front passenger seat of the Pajero. Mr Nisanov told Dror and Ezra that the deceased was looking for them (T331) and confirmed that the deceased was at the Zinzana Café. 10 Dror drove past the Zinzana Café and he and Ezra looked into the café. The deceased ran into the kitchen of the café and grabbed a red-handled Victorinox knife. The deceased came out of the café with his hands under his shirt. Moshe Kahlon, the proprietor of the Zinzana Café, told the deceased to cross over Curlewis Street, but the deceased walked towards the intersection of Glenayr Avenue and Curlewis Street. Mr Arazi observed the deceased get the knife from the kitchen. Mr Arazi saw Dror and Ezra in the Pajero near the Zinzana Café. I am satisfied beyond reasonable doubt that Mr Arazi ran to the passenger side of the vehicle and warned Dror and Ezra with words to the effect "He just go to the kitchen, grab a knife, just get out of here" (T255) although the evidence is unclear as to whether the passenger window was open at the time. 11 Dror turned the Pajero left into Curlewis Street. He reversed slightly and then pulled in towards the kerb in Curlewis Street just outside the Glenayr Convenience Store. Mr Arazi ran to the Pajero and gave a second warning to Dror and Ezra, saying "Get out of here" in Hebrew (T256). 12 Soon after, at about 9.39 pm, the deceased walked the short distance to the intersection and turned left into Curlewis Street, so that he was immediately outside the Glenayr Convenience Store. He approached the Pajero. There was an altercation between the deceased and Ezra where the deceased closed the passenger door on Ezra's hand causing a fracture. Ezra left the Pajero and the deceased cut his hand with the knife. Subsequent medical examination confirmed a fracture to Ezra's right hand and an approximately three-centimetre wound to the left hand. Forensic examination of the Pajero confirmed the presence of Ezra's DNA profile on the inside of the front passenger doorframe. 13 Dror left the Pajero, carrying a length of metal vacuum cleaner pole, in an effort to go to the assistance of Ezra. The vacuum cleaner pole most likely comprised two extensions joined together. The deceased brandished the knife at Dror and tried to stab him. Dror 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 convenience store. Part of the vacuum extension came loose and fell onto the ground as Dror struck the deceased. This part remained at the scene and was recovered by police who attended within minutes of the Salahs leaving the scene. 14 Dror grabbed the knife from the deceased. In doing so, he sustained a 28 mm "y-shaped" laceration between the thumb and forefinger of his right hand. This injury was confirmed in a subsequent medical examination. 15 Dror then stabbed the deceased six times in a struggle. Five of those stab wounds were to the front of the deceased's body, in the area of his left chest, upper right thigh and left leg. The sixth wound was in the back upper-left abdomen. Two of those wounds were immediately life threatening. One stab had punctured the aorta, and another cut the femoral artery. The latter cut caused immediate and massive bleeding, pooling at the deceased's feet. Dror stepped back and the deceased collapsed to the ground. Dror picked up the knife and pole from the ground. Ezra and Dror ran to the Pajero and Dror drove off. The pole was located later by police in the Pajero. 16 The deceased was close to death as he lay on the footpath in Curlewis Street. He had suffered massive blood loss. An ambulance arrived within minutes. The deceased was taken to St Vincent's Hospital, Darlinghurst, arriving at 10.05 pm. Surgery was undertaken. The deceased had suffered cardiac arrest from multiple stab wounds and active bleeding from the right groin. An unsuccessful attempt was made to repair the large femoral artery which had been completely transected. Following surgery, massive blood transfusions continued. However, the deceased did not improve and treatment was withdrawn. He died at 4.10 am on 6 August 2006. The pathologist who conducted a post-mortem examination concluded that the deceased died from shock and haemorrhagic complications arising from the six stab wounds. 17 After leaving the scene of the stabbing, Dror drove the Pajero to nearby Gilgandra Road, North Bondi. The vehicle was left there due to mechanical failure. Dror threw the knife in a nearby storm drain, but it was caught in the grate of the drain. At about 7.00 pm on 6 August 2006, police located the Pajero in Gilgandra Street, North Bondi. Shortly after 7.50 pm, police located the bloodstained Victorinox knife at the top of the storm drain on the southern side of Gilgandra Street about 50 metres west of its intersection with Niblick Street. 18 After leaving the Pajero in Gilgandra Road, North Bondi, Dror returned to his house in Vaucluse. Ms Stratford put the bloodstained clothes of Dror and Ezra in a plastic bag, which was placed in a spare room. The clothes were later recovered by police from a vehicle in which Ms Stratford was a passenger. At the time, Ms Stratford was acting on Dror's instructions to take the clothes to the police station. 19 Dror handed himself in to police at about 7.00 pm on 7 August 2006. In a recorded interview conducted that evening, Dror admitted involvement in the fatal altercation but denied that he had stabbed the deceased. He gave an account of events earlier in the day. Ezra handed himself in to police at about 1.10 pm on 8 August 2006. No interview was conducted by police with Ezra. 20 Both the Crown and senior counsel for Dror submit that this is a case of manslaughter by way of excessive self defence: s.421(2) Crimes Act 1900. By his plea on this basis, Dror admits that, at the time of the fatal stabbing, he intended to inflict (at the least) grievous bodily harm to the deceased. The maximum penalty for manslaughter is imprisonment for 25 years: s.24 Crimes Act 1900. 21 The liability of Ezra as an accessory after the fact to manslaughter is based upon his leaving the scene of the stabbing immediately with Dror, his non-disclosure of the whereabouts of the Pajero and the bloodstained pole used in the offence and his giving to Dror for disposal Ezra's bloodstained clothes which might be linked to the offence. Ezra's assistance continued until the clothes and vehicle were retrieved by police in the two days following the fatal incident. 22 The maximum penalty for being an accessory after the fact to a serious indictable offence (in this case, manslaughter) is imprisonment for five years: s.350 Crimes Act 1900. 23 Dror has been in custody since 7 August 2006. Ezra was taken into custody on 8 August 2006 but, as will be seen, his custodial history since then has involved a combination of prison custody or immigration detention whilst on bail.

Subjective Circumstances of Offenders 24 As mentioned earlier, Dror is an Israeli national. The Court was informed that he holds permanent residence in Australia. According to the Crown, Dror will most likely be deported upon the expiration of any non-parole period to be fixed for his offence. 25 On 9 June 2000, in Sydney, Dror was fined $150.00 for possession of a prohibited drug. Apart from that conviction and what was said to be a minor earlier offence in Israel (which the parties submitted ought be disregarded), Dror has no criminal history. 26 A number of references were tendered on Dror's behalf which attested to his good reputation, in particular, in the Israeli community in Sydney's eastern suburbs. At the time of the present offence, Dror was conducting a bakery business at Bondi in which, according to the evidence, he had worked hard for some time prior to the offence. Ms Stratford, Dror's partner of six-and-a-half years, provided a reference supportive of him. 27 According to other evidence (Exhibit 3), the parents of the offenders live in Israel. The offenders' 58-year old father was present at the time of the sentencing hearing. 28 Ezra first entered Australia on a tourist visa on 19 February 2002. 29 Thereafter, Ezra remained in Australia on a range of visas, the last of which expired on 17 November 2006 (Exhibit 1). He was charged with murder and remanded in custody where he remained from 8 August 2006 to 28 May 2007. In May 2007, he was discharged on the charge of murder following committal proceedings and was committed for sentence to this Court on a charge of common assault. The Crown did not proceed with that charge in this Court. 30 On 20 November 2006, the Director of Public Prosecutions issued a State Criminal Justice Stay Certificate for the purpose of s.148 Migration Act 1958 (Cth) which certified that the stay of the removal or deportation of Ezra, then an unlawful non-citizen, from Australia was required for the administration of criminal justice by the State of New South Wales. 31 From 29 May 2007 to 2 August 2007, Ezra was held in immigration detention at Villawood. From 3 to 28 August 2007, he was held in prison custody, I infer following the bringing of an ex-officio indictment in this Court charging him with murder. Following a grant of bail by a Judge of this Court on 25 August 2007, Ezra has been, from 28 August 2007 to the present time, on bail subject to a condition that he reside at the Villawood Immigration Detention Centre, where he was bound to be held (if not in prison) given his status as an unlawful non-citizen. 32 On 6 November 2000, Ezra was convicted of assault in Israel and was ordered to perform 150 hours' community service as well as being subject to a six-month suspended sentence. Ezra and two other persons assaulted the victim in an incident arising from a motor vehicle accident in June 2000. 33 A number of references were tendered on behalf of Ezra testifying to his general reputation and character, especially in the Israeli community in Sydney. 34 As I have mentioned, the Court has been informed that Dror is likely to be deported from Australia upon the expiration of any non-parole period. Given the status of Ezra as an unlawful non-citizen, it may be taken to be likely (at the least) that Ezra will be deported from Australia at the completion of any non-parole period that may be fixed. The fact that Dror and Ezra are likely to be deported is irrelevant as a sentencing consideration: Shreshtha v The Queen (1991) 173 CLR 48 at 71. 35 Neither Dror nor Ezra gave evidence at the sentencing hearing. Determining Appropriate Sentences

36 Courts have observed that a wide range of conduct may be encompassed by the offence of manslaughter. I am satisfied that Dror's offence of manslaughter is an objectively serious one. I accept the Crown submission that it fits into the more serious category of manslaughter by way of excessive self-defence. The following considerations lead me to that conclusion:

(a) Dror had been involved in a verbal and physical altercation with the deceased earlier on 5 August 2006 (the evidence in the sentencing proceedings does not permit any clear finding concerning the reason for the altercation) - Dror was aware that the deceased had expressed ongoing hostility towards him after that altercation - he chose to return to the area expecting further contact with the deceased that evening;

(b) having driven into Glenayr Avenue, Dror was warned by Mr Nisanov that the deceased was at the Zinzana Café - nevertheless, Dror drove on to the vicinity of the Zinzana Café;

(c) Mr Arazi approached the Pajero containing Dror and Ezra and gave them a warning concerning the presence of the deceased with a knife;

(d) rather than driving away from the scene, Dror drove the Pajero around the corner into Curlewis Street where it came to a halt - at about this time, Mr Arazi came to the passenger side of the vehicle and gave a further warning to Dror and Ezra concerning the deceased;

(e) Dror still did not drive away from the scene down Curlewis Street - it is possible that the deceased, by this time, had moved to the front of the Pajero thereby obstructing the vehicle - nevertheless, Dror made no attempt to lock the vehicle and drive from the scene at that time;

(f) a physical altercation occurred between the deceased and Ezra involving the fracture of Ezra's hand, although the evidence does not indicate with any clarity how Ezra's passenger-side door came to be open;

(g) Dror left the driver side of the vehicle with the piece of vacuum cleaner pipe to come to the aid of his brother - the evidence does not reveal how the pipe came to be in the Pajero although it was a light piece of metal which was not likely to operate as a very effective club in a fight;

(h) by this time, the deceased was holding the knife and had attempted to strike Ezra - Dror struck the deceased over the head with the metal pipe a number of times as the deceased attempted to stab Dror with the knife;

(i) Dror took the knife from the deceased - Dror took control of the situation in this way - the deceased was then unarmed - Dror stabbed the deceased five times in various locations in the chest and groin area and once in the back - although Dror's physical involvement with the deceased in the incident commenced in the context of his defence of Ezra, then defence of himself from attack by the deceased, once Dror had taken the knife from the deceased, he savagely attacked the deceased with multiple stab wounds being inflicted including two wounds which were life threatening;

(j) having attacked the deceased in this way, Dror took the knife and part of the metal pipe, returned to the Pajero and fled the scene - by that time, the deceased was lying on the ground and it was apparent to Dror, I am satisfied, that the deceased was bleeding profusely - Dror did not remain to assist;

(k) the Pajero was left in Gilgandra Street, North Bondi and Dror attempted to dispose of the knife by throwing it into a storm drain - but for the fact that the knife was caught in the grate, the knife may have disappeared into the drain. 37 The plea of guilty to manslaughter was not entered at an early stage. Having regard to the timing of the plea, I propose to allow a 10% discount for the plea. I am not satisfied that Dror has demonstrated remorse for his offence for the purposes of s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Reference to telephone contact by Dror with others after the attack does not demonstrate remorse on Dror's part. 38 Senior counsel for Dror submitted that aspects of the conduct of the deceased may be considered to be provocative, and thereby a mitigating circumstance, for the purpose of s.21A(3)(c) of the Act. Although the physical and verbal altercation earlier in the day, combined with the evidence of verbal insults directed by the deceased towards Dror and Ezra shortly before the fatal incident, provides some context for what followed, I do not consider that it constitutes provocative conduct of a kind which mitigates Dror's offence. 39 I have regard to the fact that Dror has been in custody since 7 August 2006 and that, to date, he has been held in protective custody on remand. The Court was informed that the reason for his protective custody related to Dror's Israeli nationality and possible interaction with prisoners of other ethnic backgrounds. I accept that protective custody involves greater hardship than ordinary custody. For the future, following sentence, Dror will be classified. It would be speculative to take into account the prospect of future protective custody in circumstances where that may or may not arise. 40 I am satisfied that special circumstances exist for the purpose of s.44 Crimes (Sentencing Procedure) Act 1999. 41 I have been referred to other sentencing decisions for manslaughter in the course of submissions. Comparison with sentences in other cases must be undertaken with caution: R v Trevenna (2004) 149 A Crim R 505. To the extent that cases involving manslaughter by excessive self-defence provide some assistance, I am assisted most by R v Cakovski [2005] NSWSC 1001 and Ahmad v R [2006] NSWCCA 177. 42 Having regard to the objective circumstances of the offence, the subjective circumstances of the offender and the purposes of sentencing under s.3A Crimes (Sentencing Procedure) Act 1999, I consider that the appropriate sentence for the crime of manslaughter in this case is imprisonment for eight years and nine months with a non-parole period of five years and nine months, with both to commence on 7 August 2006. 43 In passing sentence on Ezra, I keep in mind that he is to be punished for the offence for which he has pleaded guilty, namely accessory after the fact to manslaughter, an offence punishable by a maximum sentence of five years' imprisonment. Other Judges of this Court (Studdert J in R v Abdulrahman [2007] NSWSC 578 and Howie J in R v Walsh and Sharp (2004) 142 A Crim R 140) have commented upon the inadequate penalty provided by s.350 Crimes Act 1900, in particular where the offence is one of accessory after the fact to manslaughter. The legislature has not chosen to act following these judicial comments. I have regard to the maximum penalty for the offence as it stands in the legislation. 44 In my view, this was an objectively serious offence of accessory after the fact to manslaughter. I accept that, at the time when he accompanied Dror into Glenayr Avenue on the evening in question, Ezra was aware of the altercation between Dror and the deceased earlier in the day. I accept that Ezra heard Mr Nisanov's warning that the deceased was at the Zinzana Café. I accept that Ezra heard Mr Arazi's first warning concerning the deceased when the Pajero was in the vicinity of the Zinzana Café. Although Ezra was not driving the vehicle, there is no evidence to suggest that Ezra urged Dror to drive away from the scene to avoid a confrontation. Ezra has not given evidence in the sentencing hearing, nor did he provide a recorded interview to police. Accordingly, there is limited material before the Court to explain how the passenger side door came to be open. The evidence points to the deceased injuring Ezra's hand and the deceased attempting to strike Ezra with the knife. Ezra was present when Dror struck the deceased with the metal pipe, took the knife from him and stabbed the deceased in the manner described above. It would have been apparent to Ezra that the deceased had suffered multiple substantial wounds, causing great loss of blood. Ezra did not remain at the scene to assist the deceased or otherwise, but left with Dror in the Pajero. Ezra gave his bloodied clothes to Dror. His assistance to Dror no doubt resulted from his relationship as brother. The evidence does not point to Ezra being other than a willing supporter and assister of his brother. 45 Ezra's presence at the time of the fatal stabbing is an aggravating factor on sentence: R v Hawken (1986) 27 A Crim R 32; R v Do (NSWCCA, 7 May 1997) per Gleeson CJ at page 4. I derive little assistance from reference to other sentences for accessory after the fact to manslaughter given the small number of cases involved and their varying circumstances. I keep in mind, of course, that Ezra is to be sentenced for the offence to which he has pleaded guilty, and that the relevant objective facts in support of that offence relate to his assistance to Dror. Nevertheless, as I have said, his presence at the time of the fatal attack and the circumstances in which he came to be present are relevant, in my view, to the question of sentence with respect to the offence for which he is before the Court. 46 I propose to allow 10% by way of discount for his plea of guilty. I am not satisfied that Ezra has demonstrated contrition which may be taken into account as a mitigating factor on sentence: s.21A(3)(i). Ezra has a prior conviction for an offence of violence in Israel, and this tempers evidence before the Court concerning his general reputation and character. 47 I propose to take into account Ezra's pre-sentence prison custody. I will allow some credit for his period in immigration detention (which is referable to this prosecution), although it is not to be equated to prison custody. 48 Ezra was held in protective custody whilst he was in prison for the same reason as Dror. I take that into account in determining sentence. As I observed with respect to Dror, it would be speculative to have regard to the custodial status of Ezra after imposition of sentence. 49 Having regard to the objective circumstances of Ezra's offence, his subjective circumstances and the purposes of sentencing under s.3A, I consider that the appropriate sentence to be imposed on Ezra comprises imprisonment for three years with a non-parole period of one year and 11 months to date from 8 August 2006. In reaching this conclusion, I have found special circumstances for the purpose of s.44 of the Act.

Sentences 50 Dror Salah, for the crime of manslaughter, I sentence you to imprisonment for eight years and nine months with a non-parole period of five years and nine months, with both periods to date from 7 August 2006. 51 Ezra Salah, for the crime of accessory after the fact to manslaughter, I sentence you to imprisonment for three years with a non-parole period of one year and eleven months, with both periods to date from 8 August 2006. For the purposes of s.50 Crimes (Sentencing Procedure) Act 1999, I make an order directing the release of Ezra Salah at the completion of his non-parole period on 7 July 2008. **********

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