R v Saliba

OBJECTIVE SERIOUSNESS

1. 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.
2. 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.
3. 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.
4. The Court in R v 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.
5. I have taken those factors into account when forming a view as to the objective seriousness of the offence.
6. 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

1. 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.
2. 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.

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

SUBJECTIVE CIRCUMSTANCES

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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."
7. That statement is at odds with what was said to Doctor Martin and I accept what was said by the offender to Doctor Martin.
8. 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

1. 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.
2. In my view he has good prospects of rehabilitation.

DELAY

1. 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.
2. 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.
3. 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

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

SENTENCE

1. 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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