Director of Public Prosecutions v Salih

[2015] VCC 1932

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01655

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN SALIH

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 December 2015
CASE MAY BE CITED AS:	DPP v Salih
MEDIUM NEUTRAL CITATION:	[2015] VCC 1932

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Ruddle
For the Accused	Mr D. Sala

HER HONOUR:

1Darren Salih, you have been found guilty by a jury of one charge of aggravated burglary and one charge of false imprisonment.  The facts underlying your offending are as follows.

2

On 15 April 2009 you and an unknown co-accused attended a house at

5 Ferguson Street in Maribyrnong, at which time was living the family of Chung Kim Vu, her husband and their three sons; Richard, Simon and Ryan.  You and your co-accused covered your faces and wore gloves.  You got in by smashing a side window, climbing in and stepping down on the barbeque beneath it.  At the time of entry you carried a firearm.  Your actions entering the house in this way underlie Charge 1; aggravated burglary.

3The two of you then kicked in a local connecting internal door; breaking the door lock and causing considerable damage to the door panels.  You then went upstairs to where Mrs Vu and her three sons were sleeping in their respective bedrooms.  Richard Lee was woken by the banging and hid himself behind a door, arming himself with a metal pole he had in his room.  The two of you entered another bedroom, where Ryan and Simon were sleeping, and then you made the two of them lie down and face the wall.  These charges underlie false imprisonment; Charges 4 and 5.

4The two of you stood at Richard's bedroom, where one of you pointed a firearm at him, and he was made to go into the room where his brothers were.  Once inside you also made him lie on his back, facing the wall, along with his brothers.  The two of you then went to Mrs Vu's bedroom.  She woke and began screaming.  You told her to "shut up and sit down".  She knelt on her knees then sat down, and one of you took her Blackberry phone from her, grabbed her by the arm and dragged her into the same room where her sons were.  These actions underlie Charge 2 on the indictment; false imprisonment.  The actions in relation to Richard Lee relate to Charge 3 on the indictment.

5Mrs Vu laid down next to her children.  The two of you shut the door and soon after returned to the room where the family members were present and screamed at Mrs Vu a number of times "Where's the money?"  Richard told his mother to give you the money, as you had a gun, and she got up and walked the two of you into her bedroom, pointing to a dresser door where she had money.  She knelt on her knees and cried, telling them that she had no more money than that.  The two of you then stole approximately $6000 cash from a black purse she kept in a dresser door.  You and your co-accused then walked Mrs Vu back to the bedroom where her sons were and closed the door.  The family waited in the room for approximately five minutes, Mrs Vu, in the meantime, being too scared to go downstairs and try and phone police.  Once the family members were satisfied they could hear nothing Richard opened the door, but could still hear the two of you in the house, so stepped back into the room.  They then stayed in the room for about three more minutes, until they heard the sound of a vehicle screeching and taking off at the back of their house.

6Mrs Vu went downstairs, where she saw the damage to the internal door, and in the garage saw the broken window.  She called 000 and police arrived.  Stolen from the house was $6000 cash, a Blackberry mobile handset, a Nintendo DS, a Game Boy and two men's rings.

7Ultimately when police attended and processed the scene they discovered blood on the broken glass window at the entry point to the garage door, on the dresser, and in the bedside tables in Mrs Vu's bedroom.  They took samples from these sites which were later analysed and compared with a DNA sample provided by you when you were picked up for offending at a later date.  Analysis concluded that there was extremely strong support for the proposition that you, and no one else, provided the DNA discovered in that sample.

8Ultimately a trial was held.  That trial was run on one single issue; that is that it could not be proved to the appropriate standard - that is beyond reasonable doubt - that it was you who in fact provided the DNA found in the blood, or that the blood was yours and that you were therefore one of the two persons who committed this appalling burglary and false imprisonment on that evening.

9I now turn to your personal circumstances.  You are now 35 and were 28 years old at the time of this offending.  You grew up in a stable and happy family - the middle of three children born to your parents - and it seems you are the only one to have been in trouble with police.  Your parents emigrated from Cyprus and your father operated a number of businesses here, ultimately purchasing a 120 acre property just outside of Caroline Springs, where animals are kept and chickens are raised.  Your mother worked in a shirt factory.  Your parents have now retired.  You have an older brother, who is a carpenter, and a younger sister, who works as a teacher.

10It appears that you had attention deficit hyperactivity disorder which remained undiagnosed and interfered a great deal with your schooling, and you left school in Year 11 at the age of 15 or 16.  You began an electrical apprenticeship but were unable to handle the academic side of your training, and after 12 months were let go by your employer.  You then worked for Optus for about five years laying cables, however you began using drugs - at first recreationally, and confined your use to party drugs such as ecstasy - however it was in that context that you were introduced to methamphetamine or ice.  You developed a significant habit or addiction to that drug largely because when you took it you discovered that it settled the symptoms that you had suffered from ADHD; that is, lack of concentration and restlessness - and this is not surprising as Ritalin, the usual drug prescribed for such conditions, is an amphetamine based drug.  It would appear that for at least five years you had a major addiction to amphetamine, using 1.7 grams per day at its height.  This had an enormous effect on your personal life, unsurprisingly.  You had begun a relationship with your partner, Amanda, when she was 14 and you were 16, and that relationship was able to continue on for some time, but ultimately matters came to a head in June 2012 and you separated.

11I turn now to your previous criminal history.  In the year 2000 you were dealt with by the Sunshine Magistrates' Court for theft and placed on an adjourned undertaking without conviction.  Your participation in this offending apparently occurred at the peak of your ice addiction, and indeed your counsel was not in a position to give any explanation of that offending apart from the fact that it was done in order to raise money for drugs, as you have no memory of it. However subsequent to this offending, which went undetected for many years, you got yourself into a considerable amount of trouble.

12On 13 October 2011 you were placed on a community-based order by the Sunshine Magistrates' Court for charges of burglary and theft, which related to theft of some items from, as I understand it, a hotel room occupied by a prostitute, and it appears not to have been considered particularly serious offending in that you were placed on that CBO for a period of only three months, however you were ultimately breached on that CBO largely because you simply failed to comply with the conditions of it. Then on 19 June 2012 you were jailed by Her Honour Judge Campton of this court on charges of trafficking in a drug of dependence, cultivating cannabis, theft and possessing a firearm.

13You were living at the property owned by your parents and had constructed a clandestine laboratory where, in fact, you were making methylamphetamine.  Police also located a large number of cannabis plants.  It appears that Her Honour accepted that you were engaging in that activity in order to fund your ice addiction.  At the time your then partner, Amanda, had given birth to your eldest son and was heavily pregnant with your second son.  You were sentenced to two years and nine months' imprisonment, two years of which was suspended.  Understandably the relationship between you and Amanda ceased and you are still separated.

14Eventually you were released from gaol in March of 2013.  Your counsel informed me that by this stage you were largely reformed.  You had detoxed in prison and you came out healthy and fit and returned to live with your parents with the aim of turning your life around.  Unfortunately, but not unusually, you fell off the wagon, if I can put it that way.  Things started off all right but you had, amazingly - given that you decided you wanted to turn your life around - made some very undesirable friendships whilst you were in gaol.  They came around and visited you.  Your older brother gave evidence on the plea about this, and ultimately you relapsed back into amphetamine use.

15Your former partner, Amanda, gave evidence on the plea as well of the fact that when you came out of gaol your behaviour as a father improved dramatically and then fell away again.  Ultimately you had the good sense to realise the ruinous course that you were again taking, and your brother gave evidence - and indeed so did your friend, Brian Demanuel, a concreter who had known you for many years but lost track of you, and really only resumed a friendship two years ago - also gave evidence on the plea of these people who were coming around; people that he described as "off" and "partiers", and then gave evidence that they disappeared from your life.

16As I have said, you had the good sense to realise that you needed to do something extremely serious about this very entrenched habit that you had developed over a number of years, and in February 2015 you voluntarily attended upon the Victorian Rehabilitation Centre for what has been described in a report by Professor Jon Currie, who runs this centre, as "treatment of severe methamphetamine dependence".  Professor Currie noted that it would appear that your methamphetamine or ice dependence arose largely due to you self-medicating in order to deal with the symptoms of long standing attention deficit disorder which had been untreated to childhood.  He stated:

"This led to significant impairment of education, of vocational, social and interpersonal skills."

17You have apparently undergone an intensive medical treatment program which has included regular outpatient clinical visits for medical assessments, psychological counselling, and the prescription of specific medications aimed at reducing ice craving and withdrawal depression and improving cognitive function impaired by your attention deficit disorder.

18I have not previously encountered this centre, and I must say I am impressed by the medical regime, or the pharmaceutical regime.  It appears that Professor Currie has identified as not just your ice addiction needing treatment, but other matters that have bedevilled you, it would seem, for most of your life.  Amanda described you as having always been depressed, and you are being medicated for that.  You are being medicated for your cognitive function and the impairment caused by the attention deficit disorder.

19Professor Currie wrote in his letter dated 14 December 2015 that:

"Mr Salih has made quite dramatic progress in reducing and ceasing methamphetamine use and in improving his mental health status, which was previously significantly impaired."

20He described you as attending diligently for treatment and being fully compliant with the requirements of the program.  He stated:

"We have been impressed with the great effort that he has made towards his own rehabilitation.  To function and perform to his full capacity
Mr Salih will require long term ongoing medical treatment, with access to medications currently prescribed, or variations thereof."

21On the plea I had quite some conversation with you, Mr Salih, about the seriousness of your offending.  No victim impact statements were tendered on the plea and yet I have no doubt that those three young boys and their mother would have been utterly traumatised by what they experienced at your hands, albeit something in the vicinity of seven years ago.

22Fortunately for you evidence was called on the plea, which I accept, that your own behaviour has improved dramatically.  Amanda, in my view, very generously - given the extraordinary trauma that you have clearly put her through - described you as an extremely important part of her sons lives.  She described the parenting that you now undertake.  Your brother spoke of your emotional unavailability and your irritability in the past, the fact that you were always sleeping, that you were always out, that you had undesirable people hanging around, and spoke of how very much you have improved in that regard.

23Had this offending not occurred in 2009 I would not hesitate to have immediately jailed you.  I am, as I hope I have made perfectly clear, incredibly unimpressed; both with your offending, your behaviour on your release, and the fact that even though it is to be expected that a long term ice addict is going to fall off the wagon, you did it in such a juvenile fashion; that is, by forming friendships in gaol which were entirely unhelpful to you on your release.  It is not very nice, I would have thought, for your parents with whom you live to have these people hanging around their property either, but that is by the by.

24In any event, when it comes to sentencing a court must take into account the ultimate well-being of the community.  My concern is that you are now on quite a sophisticated program involving a wide variety of medication.  You are responding properly and it is my concern that if I gaol you this will be fatally undermined, and if I was to proceed to jailing you it is my view I would have to do it in terms which would mean I would have to sentence you to a term of imprisonment that would involve a period of parole, and it just seems to me to be entirely unhelpful.

25Now I warned you, Mr Salih, before I had you assessed for a community corrections order - for which, by the way, you have been found suitable - that the order I am going to place you on is going to be extremely onerous.  And I repeat what I said to you before; I will be seeing you every six months and I can make it more frequent if I wish, it will depend how you go.  And on each occasion I will receive a detailed report from the office of Corrections as to how you are progressing, and if you are not progressing well I will - and I mean this - I will throw you in gaol and I will not think twice about it.  Do you understand me?

26ACCUSED:  I do.

27HER HONOUR:  Yes, thank you.  It is an unusual course to take.  I do accept, however, that the trial was run on a very narrow basis and that none of your victims were required to give evidence on the trial and undergo further trauma.

28After some considerable consideration - notwithstanding the remarks that I made before the break - I have decided to place you on a community corrections order.  I cannot place you on that order unless you consent.  The order will last for five years, all right?

29ACCUSED:  I understand.

30HER HONOUR:  The core conditions; the fundamental conditions - and if you breach any of these conditions you will be brought back in front of me and I will gaol you.  You got it?

31One; while you are on this order you may not commit any offence punishable by imprisonment inside or outside of Victoria.  Now that includes anything that theoretically a court could gaol you for.  You do not have to come up here and say "I have been jailed".  All you have to do is knock off a box of matches from Woolworths; theoretically a court could gaol you for that and that will be a breach.  So any breach, any offending by you will bring you back in front of me.  That is number one.

32Number two; you must report to the Community Corrections office within two working days of the making of this order.  That means by Friday of this week.

33Three; whilst you are on the order if there is any change of address or employment you must inform the office of Community Corrections of that change within 48 hours.

34Four; you must report to and receive visits from the Community Corrections office.

35Five; you may not leave Victoria without the permission of the Community Corrections office.

36And six; you must obey all lawful directions of the Community Corrections office.

37ACCUSED:  I do understand.

38HER HONOUR:  All right.  They are just the fundamentals.  I am going to order that you undertake 550 hours of unpaid community work.  You are also to attend for assessment and treatment for drug addiction and assessment and treatment for psychological difficulties.  All right?

39ACCUSED:  Yes.

40HER HONOUR:  I am going to order that there be supervision - which means intensive overlooking - and I am going to order that there be judicial monitoring, and the first judicial monitoring will take place in six months and it will be, at the very least, six months after that.  You and I are going to be seeing each other for a long time.  All right, Mr Salih?

41ACCUSED:  Yes.  I won't let you down.

42HER HONOUR:  I hope you do not.  It is not me, so much, it is Amanda, who has been incredibly generous, it is your boys, it is your parents, it is your family.  People have stood by you for decades.  You know perfectly well what ice addicts are like; appalling anger, moods, rudeness, withdrawal, unavailability, self-centredness, dark moods.  Just appalling.  And you need to always bear in mind, at the back of your head, you have to make good for those children that you traumatised back in 2009.  You owe it to them.

43And one day it might be a good idea for you to write a letter of apology.  Do not give it anywhere near the family, but Mr Sala could find out for you the name of the informant so that those people do not feel like some monster came into their lives and disappeared without a trace.  A letter of sincere apology for what you did to them; it is the very least you can do.  Are you prepared to enter this order?

44ACCUSED:  Yes, I am, Your Honour.

45HER HONOUR:  Thank you.  Now I have made this decision on a fairly narrow point, and that is that you are undergoing an extremely important rehabilitation which is specific for your needs.  I accept that the underlying ADHD condition which went undiagnosed made you particularly vulnerable to use of methamphetamine.  You are being treated for all of this.

46What Corrections will probably do is they will probably send you - they will simply oversee the drug treatment program that you are undergoing with Professor Currie.  Now when Corrections say jump, you jump.  You do everything they say and you do not not turn up to appointments.

47ACCUSED:  Right.

48HER HONOUR:  All right?  This order has got to be a priority in your life, because if you do not make it a priority and if you do not do exactly what you are told, you will be back in front of me and I will sentence you to a long term.  It will be a lot longer than the nine months you did last time.  You will be looking - you heard what I said - without this I would have been looking at sentencing you to something like five with a three, all right?

49ACCUSED:  Yes, Your Honour.

50HER HONOUR:  And that is what I will do.  I take into account the delay in this matter, although I note the perfectly correct submission by the prosecutor that delay in these cases is simply because the course of justice has not been able to be carried out because a lack of detection means that has a lesser effect.

51I take all those matters into account.  You have nothing to be proud of except the fact that you finally had the brains to take yourself off to see Professor Currie, all right?  You know, you are not like a lot of blokes who turn up here with terrible families and no one who cares.  You have got a really good family.  Look at them all sitting here in court.  You know, probably waiting in horror for a gaol sentence for you.

52I am not going to say anything about, obviously, the pre-sentence detention.  You know what it is like this time.  Twenty-four hours lockdown has probably been very good for you in a horrible sort of way.  So I better never, ever, see you again except on judicial monitoring with glowing reports.  You got it?

53ACCUSED:  Yes, Your Honour.

54HER HONOUR:  Thank you.  And it is time you just - you know, if you are old enough to have sons you are old enough to be a proper father, and taking ice is about the best way of ensuring you are going to be a terrible father, because you are not there for them, they would be scared of you, you would have a terrible temper, they would not know what they were going to get on every given day; no doubt what poor Amanda had to put up with in the course of your relationship.

55You have done a lot of emotional harm to a lot of people and you need to make up for it, and you have to - part of growing up and being a man is taking responsibility for it.  And I am sorry if it makes you feel terrible but you actually need to feel a bit terrible about what you have done.  Develop a bit of compassion for others.  Ice addicts do not, pretty much, have compassion for anyone except themselves when they are hanging out.  All right, so we have prepared the documentation.

56MS RUDDLE:  Your Honour, just before Mr ‑ ‑ ‑ 

57HER HONOUR:  It's going to be an aggregate because in my view all the offending arises as from the one series of incidents.

58MS RUDDLE:  Yes, Your Honour.

59MR SALA:  That would makes sense, Your Honour.

60HER HONOUR:  Yes, sorry, Ms Ruddle.

61MS RUDDLE:  Your Honour, just when you were reading the core conditions ‑ ‑ ‑ 

62HER HONOUR:  What did I leave out?

63MS RUDDLE:  You skipped "must comply with the obligations of the regulations", which is not to be drug or alcohol effected when you are attending appointments.

64HER HONOUR:  Yes.  All right, another core condition is that when you attend upon Corrections, or any of the programs, you are not to be drug effected.  A very sensible condition; that is the last thing those poor overworked people need.  So I am dead serious about this; that everything that I have said to you today ‑ ‑ ‑ 

65ACCUSED:  (Indistinct words) Your Honour.

66HER HONOUR:  Yes, but I will get a copy of it.  It will all be written out.  I will always remember you, I will always have all these records about you.  So good on ‑ ‑ ‑ 

67MS RUDDLE:  Sorry, Your Honour, just ‑ ‑ ‑ 

68HER HONOUR:  Sorry.  Yes, Ms Ruddle?

69MS RUDDLE:  Just one further thing.  Your Honour said at the commencement of the sentence that it was one charge of aggravated burglary and one of false imprisonment.  I think that you just misspoke?

70HER HONOUR:  No, I should have said four charges of false imprisonment, one charge of aggravated.

71MS RUDDLE:  And so it's the five that are aggregate?

72HER HONOUR:  Yes, it is.

73MS RUDDLE:  The five charges.  Thank you, Your Honour.

74HER HONOUR:  The whole five.  It arises out of the same series of events.

75MS RUDDLE:  Indeed.  Thank you, Your Honour.

76HER HONOUR:  Thank you.  Very well, I'll just check this out.  Yes, thank you.  Yes, you will be required to come back to see me at 9.30 on 16 June.  Do not forget.

77ACCUSED:  I won't.

78HER HONOUR:  And you need to know this is so serious I can give a maximum of 600 hours of unpaid community work.  That is, I want to tell you, the most unpaid community work hours I have ever given anyone.  Thank you very much.  I thank counsel for their considerable assistance in this matter.  You can come out of the dock now, sir.

79VOICE FROM BODY OF THE COURT:  Your Honour (indistinct words) downstairs.

80HER HONOUR:  No, I'm sorry, he's in custody.  I'm so sorry.  No, you can't.

81VOICE:  So he'll be released from downstairs, Your Honour.

82HER HONOUR:  That's fine.  I do apologise, you're absolutely right.  I'm sorry about that.  No, so you'll have to go back downstairs.

83VOICE:  Thank you, Your Honour.

84HER HONOUR:  Thank you, I will see you in six months.  Have a happy Christmas, Mr Salih.  Yes, I'm going to remain on the Bench.  Counsel are excused, have a great Christmas and New Year.  Thank you very much.

85MR SALA:  As Your Honour pleases.

86MS RUDDLE:  May it please the court.

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