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.