R v Saliba

[2019] NSWDC 519

District Court

New South Wales

Medium Neutral Citation:	R v Saliba [2019] NSWDC 519
Hearing dates:	06 September 2019
Date of orders:	06 September 2019
Decision date:	06 September 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	A term of imprisonment for four years (48 months) with a non-parole period of two and a half years (30 months). The commencement date of the sentence is 12 June 2019. The head sentence will expire on 11 June 2023, the non-parole period will expire on 11 December 2021.
Catchwords:	CRIME — Violent offences — Detain for advantage — Circumstances of aggravation SENTENCING — Relevant factors on sentence — Delay
Legislation Cited:	Crimes Act 1900
Cases Cited:	Mill v Q (1988) 166 CLR 59 R v Moon [2000] NSWCCA 534 R v Newell [2004] NSWCCA 183 R v Todd (1982) 2 NSWLR 517 Sabra v Regina [2015] NSWCCA 38
Category:	Sentence
Parties:	Regina (Crown) Elias Saliba (Offender)
Representation:	Counsel: S Barlow (Solicitor-Advocate, Crown) G Stanton (Offender)   Solicitors: Solicitor for Public Prosecutions (Crown) Agostino & Co (Offender)
File Number(s):	2013/000248862

Judgment

Introduction

1. On Tuesday 11 June 2019 the offender was arraigned before a jury and pleaded not guilty to the following count:

“That on 18 January 2012 in Prairiewood in the State of New South Wales being in company, did detain Adrian Angeliri without consent and with intent to obtain an advantage, and at the time of detaining actual bodily harm was occasioned to Adrian Angeliri contrary to section 96(3) of the Crimes Act 1900.”

2. On Monday 17 June 2019 the jury found the offender guilty of the charge.

FINDING OF FACTS

3. The Crown case was a circumstantial case, the offender was engaged in a joint criminal enterprise with others. It relied on a number of pieces of evidence, including the evidence of Chris Afamasaga, Kava Valu and Periti Fanolua, who all made induced statements to the police and were recipients of s 128 certificates. Fanolua, Valu and Afamasaga all knew each other through employment at the Roxy Hotel in Parramatta Two of them worked as security guards and one as a responsible service of alcohol marshall. They all came to know a man named Mohi (Mohammed Hussein).

4. Mohi was involved in drug supply and paid cash to the three for their assistance. The friendship evolved and the three would go to Mohi’s house for barbecues. They met a friend of Mohi’s who was called Elias but had a nick name of Lu Lu. They called him Lu Lu. Lu Lu was the offender. He was described as middle eastern looking, muscly, in his early 20’s and had short hair, sometimes it was shaved. It was common knowledge amongst the group that Mohi was having disputes with some other people that were involved in drug supply.

5. On 17 January 2012 Afamasaga received a call from Fanolua. Fanolua asked to be picked up to go to Mohi’s place. Afamasage picked up Fanolua in his silver 2015 Ford Territory. He then picked up Kava Valu and the three drove to Mohi’s house. When they arrived a man by the name of Loukman was present, as was Lu Lu, and after a short period of time Loukman left. Mohi and Lu Lu were pretty hyped up: T 130 line 3. Mohi said “we have to do this tonight”: T 130 line 6. Mohi kept talking about a group of boys and some money they owed him. He needed to find a safe house. Mohi needed to receive some cash: T 79 lines 34 - 41.

6. Shortly after the five left in the Ford Territory. Lu Lu (the offender) was the driver: T 130 line 30, T 166 line 48. They drove to Nugent Place which was a cul de sac, they were looking for a black Charade, there was a house that they recognised but there was no car in the front of the house: T 130 lines 46 - 47. They drove around looking for the car, they returned to Nugent Place and the car was in front of the house: T 131 lines 9 - 11.

7. Adrian Angeleri was the driver of the black Charade. An application was made for him to give evidence by AVL because he was concerned for his and his family’s welfare and he felt intimidated. I granted the application. Shortly into his evidence it was clear that he was unfavourable and not making a genuine attempt to give evidence. He made a statement the day of the incident. The Crown was granted leave to cross-examine the witness. Paragraphs 1-10 and 14-19 of his statement made on 8 January 2012 were admitted into evidence and became exhibit 1. By that statement he told the jury that he had driven down Nugent Place because he had friends who lived in the street and he wanted a cigarette. He was stopped for not even a minute when a 4 wheel drive pulled up behind him. He started his car. People came out of the 4 wheel drive to his car. they punched the driver and passenger window. His window was broken. He was punched and dragged out of the car. He was told to put his head down and his shirt was pulled over his head and he was dragged to the 4 four wheel drive. He was thrown in the boot and told to keep his head down.

8. Mr Fanolua told the jury that Kava Valu and Mohi pulled the victim out of the car: T 167 lines 33-35. Elias was on foot chasing the car: T 169 line 33. Mr Afamasaga told the jury that he and Mohi went to the right side of the car and the other three went to the left side to cut them off,

“We all had attempts at trying to break the glass and then break it some-how. After the glass was broken we all took turns assaulting the driver and passenger, they were slapped and punched to the head region”: T 132 lines 7 - 45.

9. He was placed in the boot and they went back to Mohi’s house, Lu Lu was the driver: T 134 lines 24- 26. At Mohi’s house they all took turns roughing him up, trying to get information out of him. There were slaps and blows to the head, “all five of them did that”: T 135 lines 2-12. The shirt covering his head had blood on it: T 137 lines 14 -21.    

10. It would appear that the victim was not the person Mohi wanted and he was let go. It was a case of mistaken identity.

11. The Crown relied upon the following circumstances in proof of the offender being involved in a joint criminal enterprise:

1. The finding of two left palm prints of the offender on the Charade, W17 on the set pillar driver’s side and W21 on the rear driver’s side fixed window: See statement of Detective Sergeant Jordan. The left palm print of Periti Fanolua was also on two parts of the motor vehicle, the C pillar driver’s side: W18 and the C Pillar driver’s side towards the roof: W19.

2. A triple 0 call made by an anonymous female: exhibit 7. The female described the incident and said the victim was pulled into the boot “and they started saying ‘Elias give him back, give him back’ and then they drove off”. She confirmed that Elias was the name of one of the kidnappers as said by a fellow participant and that Elias was one of the people that took him.

3. A telephone was taken by police from Mohammed Hussein (Mohi) on 23 December 2011, some three weeks prior to the offence. An analysis of the telephone was conducted, it was exhibit 10 in the trial. The name of Lu Lu appeared in the contacts list and there were a number of incoming calls from Lu Lu to that phone on 23 December 2011 and outgoing calls from the phone to Lu Lu. The contacts list included Kava Valu. It was a piece of circumstantial evidence connecting Lu Lu (the offender) to Mohi.

4. The evidence of Afamasaga, Fanaolua and Valu.

12. Although it was argued by Mr Stanton who appeared for the offender that the palm prints did not “seal the day”, the jury by their verdict disagreed with that submission.

13. The palm prints on the Charade were an important piece of circumstantial evidence and considered with other circumstantial evidence, the verdict was one of reasoned logic.

OBJECTIVE SERIOUSNESS

14. The offence occurred in the early hours of the morning. Five people set upon the victim’s car. His window was broken. He was assaulted through the window and then he was dragged out of the car and forced into the boot of the Ford Territory. It would have been a terrifying ordeal. It did not stop there. The victim was taken to Mohi’s house and assaulted before release. The victim had scratches across the front and left side of his neck, he had bruises and scratches on the right side of his ribcage, his left knee was bruised and he had cuts on his right shin.

15. The offence had a degree of pre-planning, it was not spontaneous. They went looking for the person although it was the wrong person. It was an unsophisticated kidnapping but a violent one. It was not of short duration. The offender was an enthusiastic participant in what happened.

16. He drove the Ford Territory, he exited the vehicle in Nugent Place and with four others went to the victim’s car. His palm prints were on the car. He then drove the victim to Mohi’s house. At Mohi’s house all five, including this offender assaulted the victim. The group had taken the law into their own hands in belief of extracting money or retribution from a drug rival. It was a form of vigilante action.

17. The Court in Rv Newell [2004] NSWCCA 183 at [32] identified factors relevant to the seriousness of a given offence under s 86 which include: the period of detention, the circumstances of the detention, the person being detained and the purpose of the detention.

18. I have taken those factors into account when forming a view as to the objective seriousness of the offence.

19. It is a serious example of offending warranting deterrence both general and specific to this offender. It was lawless conduct in an apparent effort to obtain money that was believed to be owed for some sort of debt. The maximum penalty for the offence is imprisonment for 25 years. It is a specially aggravated offence in that it was in company and actual bodily harm was occasioned to the victim. It is a high maximum penalty. The maximum penalty is an important guidepost in the assessment of sentence. Judge should steer by the maximum penalty but not aim for it.

DISPARITY

20. Mohammed Hussein (Mohi) was dealt with and sentenced by Frearson SC DCJ on 1 June 2018. I have had the advantage of reading his Honour’s reasons for judgment (exhibit 1 on sentence). Mr Hussein was dealt with for four serious offences, including drug supply, discharging a firearm and in company assault with intent to take and did take a motor vehicle. The aggregate sentence was seven years and nine months with a non‑parole period of five years and three months. The indicative sentence for this offence was six years and three months. There are a number of differences in the sentencing position of Mr Hussein and this offender.

21. They are as follows:

• Hussein committed the offence on bail in a circumstance of aggravation, this offender did not.

• Hussein had a criminal record which warranted his Honour to say: “I think when I look at the record, it is one that denies leniency that would otherwise be available to someone who had an unblemished record”. This offender has one non relevant prior, he is entitled to leniency.

• His Honour took into account delay but the delay in my view was mainly of the making of Mr Hussein and not this offender.

• The discount for plea for Hussein was insignificant do to its lateness. Five per cent was the discount for assistance and seven per cent for the plea of guilty, resulting in a combined discount of 12%.

• Hussein was motivated by a debt owed directly to him. This offender was acting as a misguided foot solider.

22. In my view a disparate sentence should be imposed between this offender and Mr Hussein.

SUBJECTIVE CIRCUMSTANCES

23. I have a report before me from Doctor Adam Martin, Forensic Psychologist dated 20 August 2019. It informs me that the offender is 31 years of age, he is a single man with no children and he has been working as a truck driver, sub‑contracting. He felt helpless about his current situation and was experiencing significant anxiety. He said that he has concern for his parents for whom he said he has been a carer and provided financial support.

24. His father was recently diagnosed with lung cancer and his mother has had a number of mental health issues. Mr Saliba told the psychiatrist that he is prescribed the anti-depressant Lexapro and said that he has taken this for several years for post-traumatic stress disorder. Mr Saliba told the psychiatrist that he was diagnosed with post-traumatic stress disorder about six years ago, after being shot in his chest where his brother was also shot, and as a result was placed in a coma for one week and was in a wheel chair because of spinal damage. He said that he first used cannabis at the age of 18 and he described previously having used drugs in an habitual pattern until the last several years. He said that he had also used cocaine and he associated this with gambling. He has also used drugs such as MDMA.

25. He was born in Sydney and was the youngest of three siblings. He is of Lebanese Orthodox Christian Ethnicity. He described a good childhood and said he was not exposed to domestic violence and he spoke warmly about his parents. He finished year 12 and then did an Advanced Diploma in Engineering at Nirimba TAFE approximately two years out of high school. He has worked as a security guard, truck driver, in construction and in surveying properties.

26. He expressed acknowledgment of the harm caused to the victim and expressed remorse and was apologetic for the events. That expression of remorse has been confirmed in a letter that has been tendered from the offender that I have read today.

27. He has been diagnosed with substance use disorder and possibly gambling disorder. Positive prognostic factors in his case include his expression of pro-social attitudes and a wish to look after his family and not pursue criminal enterprise. He recognised the harm caused by substances, he recognised the harm caused to the victim. The psychiatrist formed the view that he has a relatively low number of risk factors for future violence and recidivism, particularly if he is able to assertively manage substance use issues.

28. I have before me a sentence assessment report dated 28 August 2019 which informs me that:

“Mr Saliba linked his offending behaviour to his immaturity and alcohol and other drug use. He advised that at the time of the offence his associates were negative influences and placed the blame for the offending behaviour on them. He denies having contact with his co‑offender since being arrested in 2013. Mr Saliba did not take any responsibility for his offending behaviour or how his actions may have impacted on the victim.”

29. That statement is at odds with what was said to Doctor Martin and I accept what was said by the offender to Doctor Martin.

30. It is a matter that I only need to be satisfied on the balance of probabilities and I am so satisfied. Mr Saliba stated his willingness to undertake intervention. He has been assessed as a medium to low risk of re-offending according to the level of service inventory.

PROSPECTS OF REHABILITATION

31. The offender is 31 years of age, he has no relevant criminal history. He has been engaged in full time work since he left school. He moved in a circle of bad people which has brought him to gaol. He speaks positively about employment and cessation of drug use upon his release from custody.

32. In my view he has good prospects of rehabilitation.

DELAY

33. The offence occurred on 18 January 2012. There was a significant period of time between the offence date and his arrest, being 15 August 2013. After arrest he continued with his life but has had matter hanging over his head since his arrest and up to the adverse finding by the jury on 17 June 2019, some seven plus years since the commission of the offence.

34. He has been left in a state of uncertain suspense. He has demonstrated self-rehabilitation during the intervening period. Sentencing for a stale crime calls for a measure of understanding and flexibility of approach: Mill v The Queen (1988) 166 CLR 59; Sabra v Regina [2015] NSWCCA 38, Bellew J at [45] and; R v Todd (1982) 2 NSWLR 517.

35. Due to the extensive delay which was not of the making of the offender, the sentence I intend to impose will lead to considerations of fairness to the offender playing a dominant role in the determination of what should be done in the matter of sentence. I extend to the offender an undue degree of leniency. Where there has been a lengthy delay between the offence and sentence and where the offender is rehabilitated, it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct: R v Moon [2000] NSWCCA 534, Howie J at [81]. I have also taken into account the lengthy period that the offender has been on strict bail conditions.

SPECIAL CIRCUMSTANCES

36. I find special circumstances by reason of his age, first time in custody and the need for reintegration into society.

SENTENCE

37. The sentence reflects general deterrence, specific deterrence and denunciation of his conduct. The sentence is four years (48 months) with a non-parole period of two and a half years (30 months). The commencement date of the sentence is 12 June 2019. The head sentence will expire on 11 June 2023, the non-parole period will expire on 11 December 2021 and the offender will be eligible for release on parole on that date.

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Decision last updated: 26 September 2019