Director of Public Prosecutions v Saliba
[2012] VCC 580
•3 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00040
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYDEN SALIBA |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 May 2012 | |
CASE MAY BE CITED AS: | DPP v Saliba | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 580 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Bhai | |
| For the Accused | Mr A Marshall |
HER HONOUR:
1 Hayden Anthony Saliba, you have pleaded guilty before me to one charge of armed robbery and have admitted prior convictions.
2 The facts underlying were offending as follows: At about 8.15 pm on 4 August 2010, you walked to the Coles Express Service Station on Punt Road, Richmond. Walking past the front doors and then entering after a customer in the store left. You went towards the fridges and then to the front counter of the store. You were seen by the attendant to be swaying slightly, with bloodshot eyes and that you held your head down with a cap covering your face. You demanded money from the attendant, Mr Sharma, who had trouble understanding you and said that you could buy a drink, if you had the money. You then produced a blood-filled syringe, a small amount of which squirted onto the counter. You rubbed the blood off the counter with your hand and then became aggressive, demanding that Mr Sharma - "Give me all the money inside the till." You told him that if he gave you the money you would not do anything to him, "Otherwise your whole life will be with Hepatitis disease." Mr Sharma became alarmed, took the till out of the register and placed it on the counter and you took notes from the till, totalling about $200 and walked out of the store.
3 The entire incident was captured on CCTV footage. Police attended and took a swab of the blood from the counter, an analysis of which eventually revealed a mixture of DNA, which contained extremely strong support for proposition that the major component of the DNA came from you. You were interviewed by police at the Metropolitan Remand Centre on 13 October 2011, where you were being held at the time in relation to other charges and made a "no comment" record of interview. You were charged on 25 October. You were committed at a committal mention on 18 January 2012, where you pleaded guilty and the matter proceeded by way of a straight hand-up brief. It is conceded by the prosecution that the plea of guilty was entered at the first reasonable opportunity.
4 The victim, Mr Sharma, declined to make a victim impact statement, however I must say, Mr Saliba, one of the problems that you face in the commission of this offending, is that it is all too common a type of offending and generally speaking, the reaction of persons like Mr Sharma, who are employed in these low paid, vulnerable positions, who are all too often the victims of armed robberies such as the one you perpetrated, are generally made to feel more fearful in their day to day experience, they often resign from these jobs because they are too fearful to continue with them or if they stay in the job, become hyper vigilant and extremely anxious.
5 Now I cannot say that that is what occurred to Mr Sharma, although one could expect that to be the case. I make the comments that I have to you about this court's experience of the affect of an armed robbery such as that you perpetrated on people like Mr Sharma, for your own benefit, so you understand that when you behave in this way, you leave a lasting negative result on people like Mr Sharma, who as I said, are vulnerable people, undertaking usually low paid employment.
6 I now turn to your personal circumstances. You are now 28 years of age and were aged 27 at the time of this offending. You were born into a family of three children. You have an older and younger sister, both of whom are gainfully employed and you generally come from a family which has never known its members to be involved with criminal activity. Your father is the manager of a road construction company and your mother the secretary of a high school.
7 You had some difficulties in your earlier years at primary school and your mother gave evidence on the plea, that she believed that you were the subject to an amount of bullying. You told psychologist, Carla Lechner, whose report, dated 13 April 2012, was tendered on the plea, that you were a below average student who had problems with attention and also tended to be, you told her, in trouble, trying to be the class clown and disrupting the class.
8 Your mother, in evidence, said that unbeknown to your parents, you were in fact suffering from a serious ear condition. You suffered a burst eardrum as a child, had an operation and grommets were inserted, but the hole never really closed over and then, in your early years at secondary school, were diagnosed with a cancerous growth in your ear, that contributed to hearing loss and affected a right-sided facial nerve and that now you have virtually no hearing in your right ear and reduced hearing in your left ear. And I note for the purposes of these sentencing remarks that during this hearing, you have had to wear earphones. In any event, I accept that must clearly have had an affect on your capacity to learn at school, but you continued on until Year 9, despite some protest on your behalf. Your mother said in evidence that once you obtained work, she gave you permission to leave school, at which time you were aged about 16, you here being a little older, as you had repeated prep.
9 You then undertook an apprenticeship with Bakers Delight, which apprenticeship you completed. However, during those years, you came into contact with people who used heroin and yourself began using that drug. As is usually the case with people who dabble in heroin, it might start off in a recreational fashion, but inevitably the use increases and in your case, within a couple of years, you were very much addicted to the drug and concomitant with that, as your usage increased, so did the expense of it. Ultimately, it appears the wages you were receiving, did not cover the cost of your drugs and you stole money from your father's purse.
10 You have apparently never enjoyed a particularly good relationship with your father. Your mother and you, it appears from what you have told Ms Lechner and on what your counsel told me and indeed on what your mother said in court, have always enjoyed a close relationship and in the ensuing years of chaos and difficulty, that inevitably intend the life of anybody who is addicted to drugs, as you became, she has remained supportive of you. In any event, once the theft from your father came to light, you were, if I can use parlance, kicked out of home. You did not handle this well. You spent some time living on the streets and ultimately, you were allowed to return home again. However, this situation did not last. You stayed at home until you were about 20, but your drug use had continued and increased.
11 Once you finished your apprenticeship, it appears that your drug use did not allow you to continue on in that way and whilst I accept over the years you have, on a number of occasions, been gainfully employed, there then began a pattern of short-term employment in various unskilled occupations, which would start off well and with good intentions on your part, but invariably decrease in terms of the quality of the work, your attendance there, your capacity to carry out your duties, because of the grip of your drug addiction. Eventually you became involved in more offending and at the age of 20 were told to leave home.
12 Again, this was a situation you did not handle well. Your father, it appears, is quite a rigid man. Your mother was not happy with the situation. You would return home on a regular basis but secretively, so that your father did not know. By this time, your parents had separated, although they were living under the same roof, and your mother detailed what have must have been a very painful period of time for you, where you were smuggled in at night and would sleep on a sleeping bag on the floor of her room. When this was discovered by your father, she would ensure you could sleep in the cubby house or even under the house.
13 It appears that at times, and again, this goes hand in hand with somebody who continues with the drug addiction that you have suffered over the years, you have had some pretty desperate time in your life, you have lived on the street, you have been homeless, and short of money.
14 You have a long criminal history, containing the sort of offending that is entirely typical of somebody who is a regular drug user. Your first appearance in court is detailed as being in June 2001, on charges of going equipped to steal, possessing cannabis, theft, theft of a motor vehicle, possessing a controlled weapon, without excuse, and for trafficking, for which you were placed on a community based order. Then in June 2006, you were placed on a further community based order for a charge of trafficking cannabis. On 27 June 2002, you were breached on the community based order due to further offending, which was a failure to comply with the community based order. In April 2004, you were placed on a three month suspended sentence on charges of burglary and theft, going equipped to steal and two charges of attempted theft. In October 2006, you were place on a further suspended sentence and a community based order in relation to charges of attempting to obtain property by deception and false report to police and fail to answer bail. On 25 September 2007, you were sentenced to an aggregate sentence of three months, on charges of failing to answer bail and breaching your community based order and breaching your suspended sentence. On 25 September 2007, you were sentenced to three months imprisonment on charges of theft from a shop, theft of a bicycle, going equipped to steal, dealing with a property suspected of being the proceeds of crime, criminal damage, and also for a breach of a suspended sentence, that had been imposed in 2007.
15 In 2008, you were dealt with by the Melbourne Magistrates' Court on a charge of possessing a controlled weapon without excuse and again placed on a community based order. Finally, on 14 December 2009, on a charge of obtaining financial advantage by deception, you were placed on a further community based order, however, also in 2009, you were gaoled. Whilst you were in gaol, in about 2008, you made contact with an organisation known as The First Step Program and as a result of that, on your release, you were given work at a call centre, the program being specifically designed to assist people coming out of prison who had problems with drugs. At that centre was counselling, if things did not turn out well, and in a letter to the court, which you have written, you detailed how everything went well at first, but then you found it difficult and returned to heroin use.
16 You also became concerned that a situation that had started off promisingly, was now declining and became anxious about it and went to a doctor. At that time, unfortunately, you were prescribed an anti-depressant, Xanax, and it appears you swiftly developed an addiction to that.
17 Certain reports were tendered by your counsel, from various doctors on whom you have attended and it appears over the years, you were also prescribed other anxiety medication, including Seroquel, Serepax, and then, for reasons which I do not quite understand, Rivotril, which is an amphetamine based medication, mostly used for persons who have attention deficit disorder. In any event, your mother, in evidence, said that when you used heroin alone, you were generally a fairly gentle person, although the demands of the drug you were addicted to, meant that you were always living a life whereby you had to commit crime in order to keep going to pay for your drug, but that once you became involved in heavy use of prescription drugs, your behaviour became erratic and sometimes aggressive, which she had not observed in you before.
18 In about an 18 month period, prior to you being apprehended for the offending that brought you before this court, you were engaged in committing a series of offences, such as obtaining property by deception, criminal damage and theft and for failing to appear, and then ultimately, in September 2011, you were arrested on those charges and then in October 2011, were sentenced on a large compilation of sentences before the Magistrates' Court, of the kind I have just outlined, to a total effective sentence of 12 months, six months of which was to be served by you before becoming eligible for parole. It was whilst you were in gaol, serving that sentence, that police interviewed you in relation to the armed robbery You have remained in gaol since you were sentenced, via that court, on 31 October 2011.
19 The offending by you on this occasion, demonstrates a marked escalation, by you in the seriousness of your offending. Whilst you have a pretty long prior criminal history, it has never contained violence and it is quite clear that the behaviour you were engaged in, on that time, at the service station, was violent.
20 You counsel informed me that you in fact have no memory of behaving in this way and were at first disbelieving of it, until you were shown the CCTV footage. Shortly thereafter you accepted what you had done and a plea was entered. I note in your letter to the court, and in your instructions to your counsel, you have expressed a degree of shock and horror that you would have behaved in this way. You mentioned that you, yourself, have always hated being stood over and this is unfortunately an experience that many people who are engaged in drug addiction, do experience because of the milieu they are involved in and you are very unhappy to think you would have engaged in that sort of behaviour, which you so dislike.
21 I do accept that that behaviour is out of character for you, notwithstanding you have got a long prior criminal history. Nevertheless, it is extremely concerning that your continued use or abuse of both licit and illicit substances, has led you to a situation that you would behave in this more violent fashion. The problem, of course, is that, and I accept that over the years you have tried on many occasions to give up drugs. Your mother detailed how she took you to a large number of detoxification units, all without success, but even though I am satisfied, you now have a strong desire to lead a normal life, to give up drugs, to obtain work and so forth, you have never actually got to the stage where you have been able to give away drugs entirely. In saying this, please do not think that I am being harsh, in terms of my assessment of your effort over those years. Drug addiction is a very strong addiction. When you have been a drug addict for a number of years, it can become harder and harder to give a drug that you are addicted to away.
22 There was also evidence before the court, mainly through what your counsel told me, that even though it appears not to have been particularly helpful to you, that you were prescribed the drugs that you were, and it is well known in this court, for example, that a person who is taking Serepax, which is often a drug used by addicts to tide them over, on occasions when they cannot get hold of heroin, can lead to aggressive behaviour. Nevertheless, you have admitted to, through what your counsel told me, obtaining those drugs on an illicit basis, on the street.
23 I also note there was a letter submitted from your doctor, dated just a few days before this offending, informing you that you were no longer welcome to attend upon that clinic, because of your behaviour, which apparently amounted to you on a number of occasions, attending the clinic and attempting to get more prescriptions for those drugs, claiming that you had lost them. I accept that at the time you carried out this offending, you were indeed in a wretched state, utterly addicted to drugs and behaving in a way, which as I have said, was not representative of your general behaviour over the years.
24
You do have to understand, Mr Saliba, that the courts regard offending such as this, particularly gravely. I did not agree with the learned prosecutor that this offending is a serious example of armed robberies that can occur. I pointed out that a really serious example of that would be an organised
hold-up by a professional gang, of something like a Brambles van or perhaps a bank, where a number of staff are held at gun-point and believe they are in danger of their lives. Nevertheless, threatening a person with a blood-filled syringe, is a nasty offence. It can place a person in very great fear of medical contamination, the contracting of some very nasty condition, such as Hepatitis, which you threatened Mr Sharma with at the time.
25 It has been termed by the Court of Appeal, in a number of cases as a particularly nasty offence because of the fear it can engender in your victim, and indeed, the courts too often see persons like Mr Sharma, who as I have said, on a number of occasions in my sentencing remarks, was a vulnerable victim, alone in a service station, in what is probably a low paid job, so that when offending such as this comes before the court, one of the matters that has to be taken into account is that the court must sentence in a way which accepts the prevalence of such offending, the need to protect vulnerable people like Mr Sharma, and to sentence accordingly in a way which does hopefully send out the message, does represent the nastiness of that type of offending and the fear engendered on a person as vulnerable as Mr Sharma was.
26 You have apparently improved your position in gaol and indeed your mother's evidence was that you handled gaol reasonably well, in that, you do not use drugs. It is a form of enforced detoxification and I received from your counsel, two certificates of urine analysis, carried out on you, whilst you have been in gaol, one in October and one in March, and that testing proved negative for use of any illicit substances. You are on Methadone, but have substantially reduced your intake from 90 mls to 25 mls a day, your counsel informing me that you only stay on Methadone really because of your anxiety in relation to the forthcoming appearance, before this court.
27 Always when the court sees someone like you, Mr Saliba, it takes into account, not just what you have done, but the really great misfortune of your position. It is not an easy life, to say the least of it, to be a drug addict. It is a life which involves homelessness, joblessness, an inability to form meaningful relationships, an inability to have stable accommodation, it can lead to wretchedness, it can lead to despair, and I am satisfied that you have suffered all those states.
28 It is also incredibly difficult, as I hope you realise, for someone like your mother, who has to continue to support you, against all the odds, for many years. You are her son and she loves you dearly, and one of the prices parents pay for having children whom they love very dearly, is to stay with them through thick and thin. Not all parents do this, but your mother has, and I am quite satisfied it has caused her immense grief and suffering over the years.
29 I was informed that your sisters declined to have any contact with you. Unfortunately it appears, part of the deceptions you have engaged in, which again, are typical of the offending of someone who is addicted to drugs, involved a deception using your sister's credit card. Of course, the way in which one siblings regards another, can be quite different to the feelings of love and obligation that a parent have, but you are now very much, Mr Saliba, at a cross-roads and that is for a number or reasons. Firstly, you are 28. It is a general experience of the courts, that if in the next few years, someone like you does not make the decision that no matter how hard it is, he has to get rid of such a destructive habit, then his life is either going to be much shorter, or it is going to be utterly miserable. You have to give it away and somewhere inside you, you have to find the determination to do so.
30 I am sympathetic to the matters that you outlined in your letter to this court, but one of the things I did notice about it was that even though you pay a lot of tribute to those who have assisted you along the years, the fact that you are grateful that you obtained the love and support, that you maintain the love and support of people in your life, you tend to regard your return to drugs or to describe them as a “slip up” or a “mistake”. Those decisions are far more than a slip up or a mistake. A decision by you to return to drug use is a huge disastrous decision. It is not something small, it is not a mistake, it is not a slip up, it is not just falling off the wagon, it is jumping off a cliff onto the rocks below. That is where it has come to for you.
31 You are now in a situation where you have appeared before the County Court on a charge of armed robbery, which carries as a maximum term, 25 years. Now, that means every time you appear before a court in the future, it will see in your prior convictions, that you have been give opportunity after opportunity, by way of suspended sentences which you have breached, by way of community based orders which you have breached, and you have gone on offending and your offending has increased in seriousness, to the point that you are before this court. Armed robbery is considered so serious an offence that it cannot be heard in the Magistrates' Court. It must be heard in a more serious court. So if you come before a court again, your only expectation, realistically, is that you are going to get more gaol time and that is because of your prior criminal history. Unless you put in quite a few years of crime free existence between this and any other offence you may commit, you can only realistically expect to go back to gaol.
32 You need to understand that that is a stark fact in your life now. There will be no more excuses, there will be no more opportunities. Your counsel conceded, very sensibly today that the only way I can deal with you is by way of imposing a sentence of imprisonment to be immediately served. You would have heard from the prosecutor, when she handed up the case to me, from the Court of Appeal, where a man in his 30s with no prior convictions, who committed an armed robbery very similar to your own, involving the use of a blood filled syringe, was sentenced to four years imprisonment, with a minimum term of two years. He appealed that decision to the Court of Appeal on the basis that it was manifestly excessive, that is too heavy. The Court of Appeal said it simply was not.
33 Now, this is something that may have its origins in your problems at school because nobody recognised your difficulty with your hearing, with the problems you had with your father, who apparently is a very rigid man. That may well have been where the problems started but you have continued them for a period of time since you were about 16. You have continued on this destructive course for 12 years. That is not much short of half your life. The only one ultimately who can get you out of this destructive path is you. As you know, you can get all the help in the world. The First Step organisation offered you a tremendous amount of support, but you were unable to follow it through. You may have had difficulties coming off drugs, nobody says it is an easy thing to do, it is an incredibly difficult thing to do, but you had a great deal of support, on that occasion and you could not find it within yourself to continue with what had been set up for you, in that incredibly helpful structure and I do appreciate that you are appreciative of that structure, but at some stage, and I hope you can do this over the next period of gaol that you have been serving, you need to think about your responsibility.
34 One of the great difficulties of having been a drug addict for so long is that you miss out on the normal emotional development of those years. Your late teens, your early 20s, are often very uncomfortable times because that is a stage in your life where you go from being essentially, perhaps an angry teenager who says, "I can do this, I can do that, don't get in my way" but essentially, you then have to learn to accept responsibility for yourself as an adult. That can be a very frightening experience. Often late teens, early 20s, when you are making the transition from essentially child to adult, is an incredibly insecure time and nobody really enjoys it very much, but you have missed out on those experiences of what is probably called "gain through pain", that lack of security, learning within yourself that you can be responsible for yourself and that you must be responsible for yourself if you are going to lead a successful adult life, because they were blocked out by drugs. Drugs do not allow you to experience the normal human emotions that allow a human personality to develop and mature. So, I understand that when you come out of gaol, Mr Saliba, you have got a few years, mature wise, to catch up.
35 There are two factors this court sees time and time again, that attach to people who keep using drugs and keep offending and they are hallmarks of immaturity. The first one is, "I have to have it now", it is called instant gratification. You cannot put off something that you want. The second one is, "it's everyone else's fault, not enough is being done for me, this happened to me, that happened to me, my father was terrible to me all those years ago, I don't have a good relationship." Those factors may exist in your life but they exist in many people's life and you have to overcome them, you, you and nobody else and I am quite sure that somewhere within you, Mr Saliba, you have got the moral compass, the moral structure and the strength to undertake the very difficult steps that you must. You expressed during the plea hearing the hope that you would go to Marngoneet Prison and I hope very much that you do too, you are still a young man, but Marngoneet Prison can only do so much for you. They can give you programs, they can educate you, they can work with you, they can discuss your difficulties, but unless it really comes home to you in the end, that the only one who is going to keep you off drugs, is you, those programs will be of no use to you and as I have said, the courts see this time and time again.
36 Very often I have had people in front of me with terrible prior histories that have gone on for years, often because of drug use, and they finally - finally the penny drops and they go, "I am sick of my life, I am sick of being in gaol, I am sick of seeing the police come through the door, I am sick of seeing my mother crying on the other side of the screen. I want a different life, I'm over it." Now, if people don't hit that stage, around about your age, perhaps a few years more, then the realisation never hits them and of course, seek all the help you can and be appreciative of it but understand, at the end of the day, whatever anyone does for you, they cannot be alone with you on that night, when you are hanging out for a taste and you have to make the decision about whether you are going to go out and get one or not. Whether you are going to ring someone and say, "I'm desperate for drugs, what can I do?" or are you going to say, "I'm going to get a hit, I don't care." The only one who can control that moment is you, and who can make the decision about what you are going to do.
37 Now, because you are a young man who has got the good sense to realise that you need programs such as the ones you have described to me, you will have the sense, in that moment – and it will come again, because it always comes again for people who have been using drugs for a long time – where you can actually say, "I can go two ways here." You do not have to sit there and sweat it out, but you can make the decision, "Either I'm going to go out and get some drugs, I know how" (I am sure you have got a vast network of people you can get drugs from) or you can say, "I need to talk to someone who can help me, and talk me through this and help me get through the next day" until it subsides again, because the cravings are going to come and go and you know what I am talking about. But you are the one who has to make the decision at that crucial point, when the desire comes on you to use. Not when you are in gaol when it is too hard, when you know if you use drugs in there you are going to come out with debts all over your head, when it is all structured for you, but when you are back, out in the community, on your own, trying to live your own life, which every adult in this society has to do. That is what you need to be thinking about.
38 Now, it does not give me any joy to sentence someone like you, you understand that? In sentencing you, I am not making a comment on you as a person, but I am making a comment on you as a drug user. In the end, all drug users can think about is their own physical state. They do not care about how other people feel. The do not think about what the consequence is going to be. All they can think of is, "When am I going to get my next fix?" and "I will crawl over broken glass - I will crawl over anybody to get it." That is the comment I am making to you, and so bad was your situation, at the time you committed this armed robbery, that you were using a cocktail of prescription and illicit drugs, which turns you into a person who horrified you. You have got no memory of committing this terrible offence on another human being, and that should scare you. That should scare you about what drugs are doing to you, because they are turning you into a person who, even though you have been a person I am satisfied, looking at your prior history, has had no qualms about being dishonest, has now become violent. That is what is happening to you now, that is what you are becoming.
39 Now, you do not have to stay that way. You have the massive advantage, which 99 per cent of young men, who come before this court, with drug addictions, do not have. You have got, (1) A good law abiding family. You might have a couple of sisters who do not want to look at you and who will condemn you and who will be sceptical of you, and who will not believe that you are an all right person, until you have absolutely proved it to them. That is sisters for you, I guess. But you have a mother who loves you and supports you and who has gone through immense emotional agony over you for years and years and years. You have got no idea how much pain you have caused her over the years, just none, because she has always fronted up and been there for you. But I would imagine every day, your mother spends a large portion of her day worrying about you, what you are doing while you are out of gaol, what your future is going to be while you are in gaol. I would image that consumes her waking thoughts most of the time, unless she is doing something else that pushes it out. It must be always there with her, hanging like a cloud over her head, because she loves you so much.
40 Many of the young men I see before this court have no one. They come out of gaol to nothing, to nobody who cares about them. They come from families where there has been generations of drug use and abuse and you do not and that is an immense advantage you have, and you can use that. Now I know like I am sounding like I am giving you a big long lecture here, Mr Saliba, I am, but I do not want to see you, no one wants to see you and most of all, your mother does not want to see you continue this ruinous lifestyle, because it is a ruin of a life that you have been living, and it does not have to be that way.
41 The fact that you could successfully complete that apprenticeship, the fact that over and over again, you start off work and you start off well, means that you have got a great deal going for you and you have got a lot of ability. It is when you turn to drugs that all that goes out the window and you start behaving in a way which affects you and which affects all those around you, particularly those who love you most, and I want you to think about those matters.
42 I am not in a position today to give you a community based order or give you a suspended sentence. What you did was simply too serious and you have brought yourself, if I can put it this way, you are in the big league now, you have got an armed robbery on your priors and you know perfectly well what that means. It means you are only ever going to go to gaol from now on.
43 I do accept you are extremely remorseful for your offending. I accepted that you do have prospects of rehabilitation. I accept that this was uncharacteristic offending and I accept, because you were described that way by Mr Sharma, that you were under the influence of drugs, at the time you committed this offending. But it is extremely serious offending and this court has been told by the Court of Appeal, which dictates to this court the way in which judges of it must sentence, that I must sentence you in a way which deters you, that is, it has to teach you a lesson. It has to condemn what you did. It has to send a message out into the community, that this sort of behaviour is serious and will not be tolerated, and it has to send out a message to the community, that people like Mr Sharma will be protected.
44 I therefore sentence you as follows: Could you stand up please? On the charge of armed robbery, you are sentenced to four years imprisonment and I order that you serve 18 months of that sentence before becoming eligible for parole.
45 Now, you can have a seat. I declare that had you not pleaded guilty to this offending, I would have sentenced you to a term of imprisonment of five years, with a minimum of three years.
46 Now, it is my intention that there be some cumulation, and I would ask of some assistance from you Madam Prosecutor as how I go about that, because I know that he have received a sentence of 12 months. What I propose doing is, I propose making the whole of that four - I propose making the four years, the head sentence, cumulative on the 12 months, that Mr Saliba is serving. The 18 months, I am going to order - in fact, I think the 18 months should be cumulative as well, but I - - -
47 MS BHAI: What will happen, Your Honour, with the order of sentencing, as I understand it, and I'm just trying to find the section to confirm that with Your Honour, is that he will now, as of today, we've got a sentence date, start to serve that non-parole period that Your Honour sets, and so after the expiry of the non-parole period, he will then serve his parole periods or whichever portions of the parole periods that the parole board determines he serves, so that in effect, the current sentence he is serving at the moment, will be not suspended, that's not the correct word - - -
48 HER HONOUR: But will run concurrently.
49 MS BHAI: Well, it depends on Your Honour's order but any portion of it which is not to run concurrently, will in effect be in abeyance until he's served the non-parole period that Your Honour sets today. That is the portion of it that's not to be served concurrently.
50 HER HONOUR: Well, I want the sentence - the 18 months to run from today.
51 MS BHAI: Yes, Your Honour, that will occur.
52 HER HONOUR: All right. So, it is my hope, that he would be released on parole in 18 months time.
53 MS BHAI: Certainly - - -
54 HER HONOUR: No, in fact, what I wanted, I want him to be released because he had six months on the bottom, so I want that to run from - I want the total to be the six months plus the 18 months, it will mean he will have done two years by the time he gets out, so I want that to run from the time that the non-parole period expired, that is, as in March, was it?
55 MS BHAI: April, Your Honour.
56 HER HONOUR: What was the date that the non-parole period expired?
57 PRISONER: 6 March.
58 HER HONOUR: Pardon? Sorry Mr Saliba?
59 PRISONER: 6 March.
60 HER HONOUR: 6 March. All right, so 6 March, what is the date today?
61 MS BHAI: Today is 3 May.
62 HER HONOUR: 6 March, 3 May, I am going to order that two months of the minimum term be served concurrently with the sentence he is currently undergoing, that is about the 18 month mark.
63 MS BHAI: Yes, Your Honour.
64 HER HONOUR: All right? Yes, so, I think that is the way I express it, because it is not like s.14, so I am - yes, so it will be an 18 months minimum term, two months of which is to be served concurrently with a sentence he is presently undergoing. So it is my intention that if he is granted parole, the next time he becomes eligible for parole will be 18 months from 6 March. All right?
65 MS BHAI: Yes, that would be the situation if Your Honour expresses it in that way.
66
HER HONOUR: That is the way I express it. Now, in terms of the head
term - - -
67 MS BHAI: Well, if Your Honour sets the - if - - -
68 HER HONOUR: Well the head term is to be served cumulatively to the head term he is currently undergoing, and the minimum term is to have two months concurrent.
69 MS BHAI: If I could just speak to my friend, Your Honour, but I don't - if I could just have a moment?
70 HER HONOUR: All right. Can you stand up, Mr Saliba? While that is being discussed. It means you will have done two years, by the time you get out, all right? Now, that might seem like a huge blow on one hand, on the other hand, it is a huge opportunity for you. Because you can get yourself to Marngoneet. It is a great opportunity to stay off drugs, probably for the longest time since you started using them, all right? If you can be dry for two years, by the time you get out, that is a sensational start. Do you understand that? And it also give you time to undertake proper programs of some length, within the gaol, whilst you are not using, all right. Now, I could have very much easily given you more than that but it does seem to me, you have got a future and I do not want to crush you in that respect. But hopefully that will get you across to Marngoneet as well and you can undertake some long term programs that are run there, all right? You have a seat, thank you. I just need to work out how I can express this so the whole lot does not go on the top. I should - - -
71 MS BHAI: Your Honour, I am not familiar with any process which enables Your Honour to say that - - -
72 HER HONOUR: All right, well then I am saying, four years, 18 months minimum, two months of which is concurrent - - -
73 MS BHAI: And that two months, Your Honour, if Your Honour expresses it in that way, would apply to both the head sentence and the non-parole period, and I don't see any other way that Your Honour can do that.
74 HER HONOUR: All right, with the sentence undergoing. And I express my hope and is my sentencing remarks will go to the parole board, No.1, that it results in him having a total minimum term with both sentences, of two years, and that on his release, depending how he has gone, that Mr Saliba is put into a transitional scenario of perhaps residential drug treatment, something along those lines. He might not need it, because by then, if he keeps going the way he is going now, and it does sound as if he would do gaol well, and you can respond well to structure, you will have been dry for two years. How long is it since you have been dry for two years? Have you ever? No, you have not, have you?
75 PRISONER: No.
76 HER HONOUR: No. Well, I am hoping we are going to break the cycle here. Up to you. Gaol is not a great way of breaking a cycle, I admit that, but very often, when I was a barrister, I would have to say to you, Mr Saliba, so many of my clients started getting pink and healthy in gaol in a way they never could have outside, you know, but I am hoping that by having this sentence at this period of time in your life, this important time of your life, you can make the necessary changes you make, because you do not want to keep doing this, do you? No. And you need to think about your mother, all right? You have got her but you need to understand the stress, strain and grief you are causing, that I am sure you do not quite realise and that I am sure you do not want to cause. All right, thank you. What I propose to do as well, is I am going to speak to records, when I get off the Bench and work out how I express it, but that is my hope, that there will be a further 18 months to serve before becoming eligible for parole, backdating it to March.
77 MS BHAI: Certainly Your Honour's intention is clear, I think.
78 HER HONOUR: All right.
79 MS BHAI: And it is well understood.
80 HER HONOUR: Thank you very much. Is there anything else I need to attend to?
81 MS BHAI: No, there is not.
82 HER HONOUR: I am sorry about that great long lecture. I normally would not take such pains to do that but you are at the cross roads, young man, and I just want to see you take the right path. Thank you very much for your assistance today, Mrs Saliba, it was most helpful, it really was. Yes, anything else? All right, I will just hand back - I will hang on to that and I will give back that and I will give back the - Yes, we will adjourn. I wish you well, Mr Saliba, all right? Thank you very much.
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