R v Elle Saliba

[2006] NSWDC 175

CITATION:	R v Elle Saliba [2006] NSWDC 175 This decision has been amended. Please see the end of the judgment for a list of the amendments.
JUDGMENT DATE:	14 December 2006
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	s11 Crimes (SP) Act grant offender bail for the purpose of demonstrating that rehabilitation has taking place and continues. Numerous bail conditions set.
CATCHWORDS:	Criminal Law - Sentence - s11 C(SP)Act Bail - to assess prospects of rehabilitation - 38year old first time offender - depression - drug abuse.
LEGISLATION CITED:	s.11 Crimes (Sentencing Procedure) Act 1999
PARTIES:	Regina Elle Saliba
FILE NUMBER(S):	06/21/0321 & 06/21/0322
SOLICITORS:	Defence: Ms Meranea Crown: Mr White

SENTENCE

1 HIS HONOUR: Elle Saliba was born in 1967, in a few days time he will be thirty-nine years old. His first and only previous offence was in 1986 when he was conveyed in a stolen motor vehicle, for this offence he received a s 558 recognisance to be of good behaviour for three years. Until today he had not been before a court again.

2 Today he is before this Court in respect of three break and enter offences. In respect of two of those he has been committed for sentence, in respect of a third he asks it be taken into account on a Form 1.

3 It would seem, as the matter came to me, the offences on which he has been committed were not accurately identified. There are also two receiving stolen property accounts and he asks pursuant to s 167 Criminal Procedure Act that I deal with the following further offences that he was driving whilst his licence was suspended and that he was in possession of housebreaking implements. There are four matters of furnishing a false statement in respect of goods which apparently were pledged to cash converters and two further matters of receiving stolen property.

4 All of the offending conduct I am dealing with appears to have occurred in two groups; a series of offences over some days in early May and another series of offences over some days in early July this year. Although this would not fit the usual pattern of offending by drug offenders committing crime for drug money, the offender says on his oath that all of his offending conduct is before the Court.

5 The offender has come before the Court to answer his criminality today. Given the unusual circumstances of this case, that is that the offences are committed by a thirty-eight year old with an otherwise virtually clean record, the ultimate sentencing outcome will depend significantly upon the offender’s rehabilitation prospects and whether he can demonstrate that he is capable of staying off the drugs.

Facts

6 Each of the break and enters appears to have been committed during daylight time. During the break and enter on 11 July the offender was seen by neighbours, police were contacted and he was arrested shortly thereafter. There appears to be some damage occasioned on each occasion, certainly as to two of them, to gain entry.

7 Small items generally were taken including a camera, a wallet, jewellery, watch, Sony PlayStation, two game consoles, a Game Boy, portable DVD player, a DVD player, DVDs, PlayStations, porcelain dolls, cosmetics, clothing and a suitcase containing some other property. Some of these items were pledged without much regard to their actual value or the sentimental value to their owners. He received items of a similar nature which he pawned during May, claiming at the time that he pawned them that the items were his.

Mental Health Issues

8 At the time of the offences his life had been on a gradual downslide. It maybe appropriate to mark that downslide as being noticeable about the time he contracted encephalitis, that is in August of 2002. It is likely to have started earlier, but the expression of it in his daily life may have begun about then. He is recorded as being concerned that he may have had cognitive deficits, particularly relating to memory and thinking, occurring as a consequence of that serious bout of encephalitis. That he sought medical attention for it demonstrates he was clearly worried. Such loses can be a sequelae, as I understand it, to encephalitis.

9 His reviewer at the time observed that he had performed adequately in all cognitive domains and generally within expectation based on his average estimated premorbid level of function. He demonstrated adequate auditory attention span, working memory, speed of thinking, receptive and expressive language, visio-spatial skills and what those working with the mind call executive functions, these include verbal reasoning, problem solving and organising.

10 He did appear to suffer from cognitive fatigue, meaning that he had difficulty sustaining his concentration effort for long periods of time. The reviewer formed the opinion that the results overall were encouraging and revealed no evidence of a decline in his memory or other aspects of cognition since contracting encephalitis. She remarked however that Mr Saliba’s elevated levels of stress, anxiety and depression were of some concern.

11 Cognitive fatigue is not the same as loss of cognitive ability. It would appear Mr Saliba was generally within expectations of what was expected of him, if not better than what was expected of him. The cognitive fatigue may well have been a sequelae to encephalitis, whether it has resolved or not is not stated in the subsequent psychological assessment obtained for this hearing. What is significant in the 2002 report is the presence of anxiety, stress and depression. They, it seemed to me, were indicators of underlying problems.

12 The offender was referred by Ms Hall of the Legal Aid to Emma Collins, a forensic psychologist. She conducts her practice with Dr Lennings, also a well known psychologist. She remarks that the offender is a thirty-eight year old Lebanese born Australia citizen, currently living with a brother. Has no current relationship, although at the time of the offending claimed that one of his alleged co-offenders was his girlfriend. He gives evidence that relationship has now ended.

Family Background, Social Dynamics

13 He is the eldest of four children, there are two younger twin brothers and a younger sister. He was raised in Lebanon until about eight or nine, then relocated to this country. My understanding is that there was some time in Melbourne and then they moved up here - I do not know where I got that from though. There was a period when he was raised by his paternal grandparents and his view of what occurred during that time was that his paternal grandmother sought to distance him from his mother.

14 Elle Saliba’s relationship with his father as a child was difficult. The young Saliba often felt that he was blamed for things that his siblings had done and punished by his father for them. It was, and still is apparently, his view that his father’s discipline was excessive at times and that he felt he had to “walk on eggshells” around his father.

15 He claims acquaintances but no close friends during his school years. There was a claim that some of his school peers bullied him, but that he was able, as it were, to stand up for himself, because he generally fought back.

Education, Skills, Employment

16 He went to Canterbury Boys High School and did not enjoy that experience. There were language problems impacting upon some of his class grades and he lost motivation. It was during high school that he began to truant. It was during high school that he experimented with cannabis. He passed his School Certificate, was not satisfied with the grades and sought to redo it, but abandoned that after a few months.

17 He worked after leaving school and then began a pre-apprentice course at TAFE, ultimately got himself a panel beating apprenticeship and is still working in that trade.

18 There was a period when he was on sickness benefits for five months in 2002 and subsequently he took a year off because he was “sick of life”. But he, more recently, (three months when this report was done) had been back in panel beating. That would seem to me to be August of this year.

Factors leading to Depression

19 He and his wife lived together from '96 to 2003, after that he moved away, living with his family. He told Emma Collins that the marriage dissolved in 2003 because of his longstanding mood swings and he instigated the break up, saying that he could not continue in such a way in the relationship. The account that he gave in Court is significantly different from that.

20 The significance is two-fold, one, the account is factually different, but secondly, it is consequentially different. In Court he said that it was really family tension coupled with the fact that he had married his wife because she was pregnant and that really it was a fact he should not have married her and that there were, as I understand it, tensions ongoing in the marriage where the blame may well have fallen evenly on both or perhaps even towards the wife. But in the report from Emma Collins, he seems to be accepting all of the blame.

21 He says that the separation was initially messy, but that currently he has an amicable relationship with his wife. He can see his children when he wishes and they stay with him each weekend.

22 He felt that he had become isolated from others, spending time at home in bed alone. He claimed to feel quite emotional during the period. He did not feel that he would gain any benefit from what is called psychotropic treatment at that time, that is presumably when he was feeling alone in 2003. When he tried it recently, it did not help improve his low mood. He has entertained suicide as an idea and those experiences were exacerbated by his encephalitis. If that be so, then those experiences must have pre-existed the encephalitis with the depression there before the encephalitis.

Drug Abuse

23 He claims regular substance abuse from the age of twenty-four, initially with cannabis from '91 to '96, although he had experimented with cannabis at thirteen. He stopped using cannabis when his eldest daughter was born and only used it occasionally thereafter. He had tried amphetamines and cocaine socially, but no more regular use than that. He was not a great consumer of alcohol, probably every couple of weeks, he was not a binge drinker.

24 He begins, in late 2005, using heroin intravenously claiming he was introduced to it by a friend at a time when he was feeling unwell. There was some use of benzodiazepines. He had not accessed any form of rehabilitation. His evidence is that he, particularly since his arrest, has been motivated, probably by the charges and the potential gaol sentence, to cease heroin dependency.

Source of Stress

25 What is interesting about that is that he does not seem to me to reveal to Ms Collins, the major stresses that were going on in his life in 2005 and perhaps before. Firstly, there may be some unresolved matters relating to his separation from his parents and the undermining of the family relationship by his paternal grandmother. Secondly there may be issues relating to his relationship with his father and perhaps feelings of guilt, particularly bearing in mind that the father is in the final stages of a terminal cancer. There may be senses of frustration by him that his father is going and that there is little he can do about it.

26 His brother, at the beginning of the year, the brother with whom he is living, was involved in a motorcycle accident in which he was seriously injured and there was concern for some time as to whether he would be wheelchair bound or not. It would appear that there was some significant spinal damage and that the remedy has required support to the spine, if I have understood it correctly, by way of a couple of rods being inserted. And there are marriage tensions and inevitably, although Family Law seeks to move away from this, the question of accepting and understanding why it was that the marriage has broken down without the need for blaming necessarily.

27 None of these issues appear to me to have been addressed. One can’t of course exclude the possibility that the depression is not what is called a reactive depression, it may well be one which is congenital, that is some genes may have been passed on that dispose him to depression. It seems to me that his rehabilitation prospects are very much tied up with him coming to grips with whatever it is that is causing him to be sad and that whatever it is is causing him, or caused him to look initially to cannabis and subsequently to heroin for relief.

28 It may be that there is a need for some medication, either over a temporary period or permanently, one does not know until the matter is addressed. What we do know is that there are many people in the community now who are beginning to accept the proposition that they experience depression and are beginning to come to grips with it. If this offender does not come to grips with it at the age of thirty-eight, he may be just on the threshold of a criminal career rather than hopefully having engaged in criminal conduct during a bad time.

Rehabilitation Issues

29 Since the offence it would appear that he has done much which points towards his rehabilitation prospects being better than reasonable. He says that he has withdrawn from heroin and cannabis. He has indicated to the Court that on two occasions he was attracted to the prospect of using heroin again to a point where he actually jumped in the car and drove there, at least on one occasion, or drove halfway there, thought about it and withdrew yet again. Although as I say, perhaps not withdrawn from the causes. He is on better relationships with his former partner, that he is employed in a situation where there is a real possibility of obtaining an actual legal interest in the business.

30 Were I to sentence him now, it seems to me that because I cannot be confident the rehabilitation would continued, I would be compelled to send a man, who at the age of thirty-eight had not been to gaol before, to that very place. He would be a novice in gaol and I have no doubt would find it an extremely scary place. Men bigger and tougher than him who had been in gaol much longer than he, although younger than he, would very shortly manipulate him one way or another.

31 That of course has not been ruled out as the final option, but it seems to me that if he could demonstrate a continuation of the rehabilitation that he started, other options become available. For that reason I intend to adjourn these proceedings for a period of twelve months from today. I intend to require him to appear in my court on three occasions during that twelve month period to assure myself of two things; firstly that the community is not endangered by this boldness on my part and secondly that the rehabilitation that I am looking for is progressing, because if it is not progressing, it is better that we do not waste our time.

32 The conditions that I will set will ensure, hopefully, two things; that the causes of the drug abuse begin to be addressed and secondly that the drug abuse itself will stop so that the safety of the community is thereby ensured. If at the end of twelve months I am confident that the rehabilitation can be achieved and is being achieved, it seems to me that an option that immediately commends itself is some form of suspended sentence, but we can cross that bridge when we get there.

S11 Bail and Conditions

33 Pursuant to s 11 of the Crimes (Sentencing Procedure) Act I grant the offender bail for the purpose of demonstrating that rehabilitation is taking place and can continue to take place. The conditions of that bail are that he will accept supervision by Probation and Parole, that he will accept the reasonable directions of his case manager with Probation and Parole in respect of counselling, particularly related to causes of his drug abuse, drug prevention strategies and personal counselling. He will submit to random drug testing four times monthly. That at the direction of Probation and Parole and within four hours of being so directed, he will attend upon a practitioner and submit himself to urine testing or other form of drug testing, there is a saliva form now. Any failure so to do is deemed a breach of the bail. Any dirty test is likewise deemed a breach of the bail. Probation and Parole is requested to advise me of any breach of bail within forty-eight hours of that breach. He remain of good behaviour. At the progress reports he obtain a report from his employers, any counsellor he privately engages and I order updated pre-sentence reports.

34 He can appear, these are the dates I suggest, 20 April here at Parramatta, 24 August at a court to be advised and 14 December next year at a court to be advised for the final sentence hearing.

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19/06/2009 - removal of personal information - Paragraph(s) 1