R v Salameh [2016] NSWSC 930 (5 July 2016)

Last Updated: 5 July 2016

Supreme Court New South Wales

Case Name:	R v Salameh
Medium Neutral Citation:	[2016] NSWSC 930
Hearing Date(s):	23 June 2016
Date of Orders:	5 July 2016
Decision Date:	5 July 2016
Before:	RS Hulme AJ
Decision:	Bail refused
Catchwords:	Bail - serious reoffending – cause not shown -electronic monitoring
Legislation Cited:	Bail Act 2013
Cases Cited:	R v Xi [2015] NSWSC 1575
Category:	Principal judgment
Parties:	Regina (Crown) Shadi Salameh (Applicant)
Representation:	Counsel: Mr G James QC (Applicant) Solicitors: Ms E Sercombe - Director of Public Prosecutions Hanna Legal (Applicant)
File Number(s):	2016/90562
Publication Restriction:	No

JUDGMENT

1. This is yet another case where the Director of Public Prosecutions has submitted that bail should be refused with the result that a person charged and presumed to be innocent may well be kept in gaol for over 2 years before he is tried. The Applicant was arrested on 22 February last and I have been informed, without dissent from the representative of the DPP, that any trial is unlikely before late 2017 and may might not eventuate before mid 2018.
2. The application the subject of these reasons came before me on 23 June but because of the volume of and detail in the material placed before me, I did not feel able to decide it on the day.
3. Mr Salameh stands charged with three “groups” of offences, briefly described in the bail chronology as:
   • (1) First Group
4. Dishonestly possess interfered with unique identifier;
5. Destroy/damage property;
6. Knowingly facilitate organised car re-birthing activity.
   • (1) Second Group

(1) Knowingly deal with proceeds of crime

(2) Third Group

(1) Knowingly facilitate organised car re-birthing activity;

(2) Destroy/damage property

7. The offences in the first group are said to have occurred on 14 July 2015. He was charged with those offences on 17 September 2015 and granted bail. The offence in the second group is said to have occurred between 28 September and 25 November 2015 and those in the third group between 29 January and 19 February 2016.
8. No bail order has been made in respect of the second “group of offences”. His application is for a grant of bail in respect of the first and third series. The next scheduled appearance in respect of all offences is at the Burwood Local Court on 6 July 2016 for mention.
9. Because Mr Salameh was on bail at the time the third group of offences are said to have been committed, s 16A et seq of the Bail Act 2013 require that bail be refused unless he shows cause why his continued detention is not justified. If cause be shown, I am then required to consider whether admitting him to bail would result in one of the unacceptable risks referred to in s 19. The Bail Act 2013 and particularly s 18 sets out a number of matters to which I am required to have regard in considering whether there would be an unacceptable risk.
10. In pursuit of the application Mr James QC who appeared on behalf of the Applicant relied particularly on a number of matters. He submitted that the case against the Applicant on the more serious charges was weak, that any sentence on the lesser charges would be likely to be less than the period the Applicant would probably have to remain in gaol if bail was refused and that conditions could be imposed, including electronic monitoring, which would very much mitigate the risk of the Applicant re-offending or not attending Court.
11. Given those matters and those referred to in the first paragraph of these reasons, it has seemed to me necessary to consider the strength of the Crown case in some detail. Other things being equal, cause is more readily shown if the period awaiting trial is long and the case against the Applicant is weak or, to take an extreme, almost doomed to fail.
12. Shadi Salameh and Khalad Salameh are sons of Jamal Salameh who operates a business, Milperra Spares which deals in second hand vehicle parts. The owners of another dealer in second hand vehicles or parts, “On Boost Auto Parts”, are related to the owner of Milperra Spares.
13. Other evidence before me includes the following. (As a matter of convenience I have abbreviated vehicle identification numbers to only the last 3 digits):-

Vehicle 1

(1) On 14 January 2014 Shadi Salemeh purchased an unregistered white Toyota Landcruiser in poor condition with VIN 585 for $13,000.
(2) On 24 July 2014 Vehicle with VIN 585 was registered and given Reg No: CA4 2HL. During the registration process it was said that the vehicle had been sold by Milperra Spares to Khaled Salemeh for $25,000.
(3) On 15 August 2014 another white Toyota Landcruiser Reg No: SJ440 and having VIN 440 was stolen.
(4) The body, engine and drive train of vehicle VIN 440 were placed on vehicle VIN 585.
(5) On 4 May 2015 the CA4-2HL plates (on Vin 585) were changed to CXY-31J.
(6) On 18 May 2015 Khalad Salameh sold vehicle VIN 585 bearing plates CXY-31J and containing engine parts from vehicle Reg No: SJ 440 to a Grant Peterson. The price was $45,000.

Vehicle 2

(7) On 1 September 2014, Milperra Spares purchased a significantly damaged white Toyota Landcruiser bearing VIN 160.
(8) On 11 December 2014 another white Toyota Landcruiser in almost new condition Reg No: CVB-74S and bearing VIN 155 was stolen.
(9) The body of vehicle CVB-74S was placed on the chassis of vehicle bearing VIN 160.
(10) On 20 May 2015 vehicle with VIN 160 was registered in the name of Jamel Salameh and given Reg No: CYN-01A.
(11) On 17 September 2015, Khaled Salameh was arrested driving vehicle CYN-01A.

Vehicle 3

(12) (1) On 25 February 2015, On Boost Auto Parts purchased a grey Subaru WRX sedan Reg No: AZB-75M, bearing VIN 877. The vehicle was in a damaged condition and on the Written-off Vehicle Register.
(13) On or about 28 February 2015, a white Subaru WRX sedan Reg No: CRK-29A and bearing VIN 321 was stolen.
(14) On 14 July 2015 vehicle Reg No: CRK-29A was seen in the premises of Milperra Spares. There were discrepancies between its compliance plate and VIN number. Later, inspection showed the compliance plate for VIN 877 had been fitted over the compliance plate VIN 321.
(15) On 14 July 2015, Shadi Salameh claimed ownership of vehicle CRK-29A saying he had purchased it from a male “Abdul” for $8,500. Informed that the vehicle was stolen, Shadi then damaged it.
(16) On 21 July 2015, Khaled Salameh emailed, I infer to the authorities, a document purporting to be a copy of a receipt dated 19 June 2015 by Abdullah Ismail for $9,500 as the price of the vehicle. Abdullah Ismail is not known at the address provided nor is the licence number given for him a valid one.
(17) On Boost Auto Parts later produced receipt number 9412 dated 13 June 2015 for the sale of the vehicle AZB-75M. Receipt numbers 9411 and 9413 were dated 15 July 2015 and there was no explanation for the discrepancy in the date of receipt number 9412. .

14. The police statement of facts concerning the above offences contains two further paragraphs, viz:-

(i) During the course of the investigation, Jamal Salameh has provided investigators with a statement indicating that both Toyota Landcruiser source vehicles involved in the investigation were purchased by Shadi Salameh.

(ii) A forensic examination of the phone of Khaled Salameh seized at the time of his arrest on the 17 September, revealed images of all three vehicles at their place of business, Milperra Spares.

15. It is not clear which vehicles are referred to as “source vehicles” and “all three vehicles”.
16. It appears that the matters referred to in respect of the “Third Vehicle” are the subject of two of the first series of charges against the Applicant and that the matters referred to in respect of all three vehicles are relied on in respect of the third charge in that series.
17. The police statement of facts and a supplementary Facts Sheet that was tendered concerning the third series of charges, includes information to the effect that a number of motor vehicles were stolen. They included three forklifts stolen on 7 February 2016 and the following:-

	Description	Date stolen
(i)	AY4-7Z0 – white Toyota Hilux	9 February 2016
(ii)	MLP-712 – white Toyota Hilux	9 February 2016
(iii)	AY6-6AZ – white Toyota Hilux	9 February 2016
(iv)	AZ6-0JB – white Toyota Aurion	9 February 2016
(v)	CD7-3CX – white Toyota Landcruiser	11 February 2016
(vi)	CF4-6SP – blue Toyota Aurion	11 February 2016
(vii)	BW7-9ST – black Toyota Aurion	11 February 2016
(viii)	AJ9-4JJ – white Toyota Aurion	11 February 2016
(ix)	CB9-1LE – grey Toyota Aurion	11 February 2016
(x)	BN8-2QL – white Toyota Hilux	14 February 2016
(xi)	BP2-2PK – black Toyota Hilux	14 February 2016
(xii)	AN8-5VB – white Toyota Hilux	14 February 2016
(xiii)	CRT-63N – bronze Toyota Corolla	5 February 2016

18. Premises at 1-3 Bramhall Avenue, Punchbowl were identified by police as a location where stolen motor vehicles were stored and dismantled. Surveillance devices were installed to monitor activities at those premises. Two persons Zacharigh Eid and Shivneil Reddy were identified as those who effected the dismantling. The premises at 1-3 Bramhall Avenue were referred to by various of the persons who frequented those premises as “the shop”
19. The dismantling consisted of the removal of the bodies and of the engine and drive trains. Bodies, which commonly at least showed no signs of damage initially were damaged in a variety of ways, often by having forklift tongs driven through the windscreen and then being stacked one on top of another. The practice was for them to be then loaded a number high onto a truck and sent to Sydney Metal Recyclers.
20. On 11 February 2016, Zacharigh Eid and Shivneil Reddy commenced to dismantle the vehicle MLP-712 and also another white Toyota Hilux. At about 11.30am one Ali Nabulsi attended the Bramhall Avenue premises, loaded an engine into his van and drove off.
21. At 12.02pm on that day, bodies of three vehicles were loaded onto the back of a truck and taken away. Nabulsi then returned.
22. A little later while the Applicant was at the Bramhall Avenue premises, two engines were loaded into the rear of his van and driven away by Ali Nabulsi.
23. Later that day Eid and Reddy dismantled vehicle AY4-7ZO.
24. During the afternoon of 12 February 2016, Shadi Salameh drove vehicles CD7-3CX and BW7-9ST into a compound at 1-3 Bramhall Avenue, Punchbowl. As he walked from the vehicles he was wearing black gloves on both hands. He left the premises shortly afterwards.
25. On 12 February 2016, three vehicles said to be identical to vehicles stolen on the night of 11 February were in the compound at 1-3 Bramhall Avenue Punchbowl. The identity of the three vehicles is not stated.
26. In due course the bodies of the vehicles CD7-3CX, CF4-6SP and BW7-9ST were located at 1-3 Bramhall Avenue, Punchbowl. The engines of those vehicles were located at 28 Cottam Avenue, Bankstown.
27. During the morning of 12 February, Eid and Reddy removed personal property and Reddy removed the number plates from the vehicle AJ9-4JJ and then commenced to dismantle it. A little later they dismantled CB9-1LE.
28. At 12.12 pm Nabulsi arrived and two engines were loaded into the back of his van and driven away. Later he returned and two more engines were loaded.
29. At 12.20pm on 12 February the Applicant arrived at the Bramhall Avenue premises and a large amount of suspension components removed from dismantled vehicles were loaded into his utility which was driven away. Later that day, further suspension components were also loaded into his vehicle.
30. Also on 12 February, the Applicant was heard in an intercepted telephone call, to invite Eid to come to his house so the Applicant could give Eid some money and money for his mate as well.
31. On 13 February 2016, the chassis of the vehicle CRT-63N was disposed of to Sydney Metal Traders. The vehicle had previously been recorded on surveillance footage at 1-3 Bramhall Avenue and parts from it were later found there. The engine was located at 28 Cottam Avenue on 19 February 2016.
32. On 13 February 2016, two truckloads of vehicles were removed from the premises at 1-3 Bramhall Avenue. At 10.06 that day in a recorded telephone conversation, Eid informed the Applicant that he was at “the shop” and only two loads had been done.
33. On 15 February 2016, the Applicant walked into 1-3 Bramhall Avenue with Eid and to the front of a Toyota Landcruiser in the dismantling area and there appeared to be giving directions to Eid and Reddy. The Applicant remained at the premises for a short period before walking to the front with Eid.
34. On 15 February vehicles BW7-9ST and CD7-3CX were dismantled.
35. On 19 February 2016, Reddy participated in an electronically recorded interview. In the course of that interview, he remarked that the Applicant “just comes in to make sure you’re working and stuff but ask, ask, yeah sometimes he asks Zack, I want this done, I want this cleaned up, just that and that’s it.” It is fair to say that a number of answers in that ERISP are not inherently credible.
36. On 19 February, the three stolen forklifts were found at the Bramhall Avenue premises. On that day Nabulsi was also arrested. Located in the boot of his vehicle were a large number of vehicle ignition barrels, door lock picks, jackets and gloves.
37. It is impossible to avoid the conclusion that the activities to which I have referred, were incidents of a well organised operation. Furthermore, given that much of what occurred was obviously the subject to recording, it is impossible not to regard the Crown case, including that indicating involvement by the Applicant, as strong. On the other hand, there is some scope for arguing about the extent of the Applicant’s involvement. Obviously, Messrs Eid and Reddy did most of the physical activity and the Applicant appears not to have been at the Bramhall Avenue premises on most days.
38. That said, there is some evidence pointing to the Applicant being relatively high up in the organisation. I have in mind this connection, not only the statement by Mr Reddy in his ERISP, but also the apparent giving of instructions and the paying money to Mr Eid.
39. And though I am not concerned with the granting of bail in respect of what I have referred to, somewhat inaccurately, as the second “group” of offences, evidence concerning the offence in that group is relevant. That evidence is to the effect that the Applicant and a co-offender rented premises at Milperra to which premises were taken stolen cars. There the vehicles then had the drive-train components, consisting of wheels, suspension, engines and transmissions removed. What remained was subjected to damage, loaded onto a truck and then taken to Sydney Metal Traders.
40. The activity came to the attention of police, who found in the premises twelve engines identified as coming from stolen cars and three further stolen vehicles. Six more stolen cars were found parked nearby. The Facts Statement records that forensic review of a hard drive from a CCTV camera has provided much of the information in this and the immediately preceding paragraph.
41. The similar nature of the activity at Milperra and at Bramhall Avenue premises, makes it likely that the evidence concerning both would be admitted in respect of each group of charges, certainly if there was any suggestion that the Applicant’s role was limited. The Milperra evidence much strengthens the view that the Applicant was deeply involved in the activities at and connected with Bramhall Avenue. In the result, I assess the case against him in respect of the charge of knowingly facilitating organised car re-birthing activity between 29 January and 19 February 2016 at and connected with the Bramhall Avenue premises as strong, if indeed it is not compelling.
42. That conclusion much weakens the force of the argument based on the length of time until trial.
43. Not to be forgotten also, is that the activities in and connected with the Bramhall Avenue premises and those at Milperra were committed in breach of the condition of the Applicant’s bail whereby he undertook to be of good behaviour. Clearly, on the evidence before me, the Applicant cannot be trusted to comply with any terms imposed on him.
44. Does the proposed electronic monitoring make a difference? The elements of such monitoring were described in an Affidavit by a Phillip Scott, the business manager of 3M Australia which apparently maintains a central monitoring system which has been used by police and the Department of Corrections in New South Wales and other states and countries. The monitoring would involve the Applicant wearing a bracelet which would communicate automatically if it was interfered with or the Applicant moved from where he was supposed to be. In that regard, it was also proposed that a condition of the Applicant’s bail be that he be largely confined to identified premises.
45. An aspect of the electronic monitoring is that in the absence of any violation, reports are provided to the police every 24 hours but if the bracelet detects some violation of its parameters, it communicates the fact to the 3M central monitoring system, and then “the police officer charged with monitoring will receive an SMS or email to their nominated contact details”.
46. Adoption of the system thus seems to involve imposing some burden on the police service. I have no information about its capacity or willingness to provide effectively 24/7 availability nor the service’s capacity to respond timeously to any apparent violation. While undoubtedly the fact of electronic monitoring would operate as an incentive to the Applicant to confine his movements, I am not persuaded that it would necessarily prevent him from, for example, attempting to abscond. (I mention that by way of example. I do not ignore the fact that there are other factors such as family that might operate to preclude him absconding.)
47. I accept also that electronic monitoring may tend to hamper the Applicant in any inclination to commit further offences. However it would not prevent him from helping others to do so. It seems not unlikely from the scale of his activities to date that he had some willing accomplices in the form of car thieves and there is nothing to suggest that he could not be of assistance to such persons even if his physical movements were restricted.
48. In saying what I have, I do not intend to suggest that electronic monitoring might not be appropriate in some cases. Hamill J allowed it in the case of R v Xi [2015] NSWSC 1575. However I am not persuaded that it is an answer to the Crown’s opposition to the Application here.
49. In the result I am not persuaded that the Applicant’s continued detention is not justified. Accordingly s 16A of the Bail Act 2013 requires that bail be refused.
50. This conclusion makes it unnecessary for me to consider whether, if admitted to bail, one of the unacceptable risks of which s 19 speaks would arise or could be dealt with or avoided by the imposition of conditions.

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