Biba v The Queen [2022] VSCA 25

1 The applicant pleaded guilty in the Supreme Court to a charge of manslaughter. On 21 June 2021 he was sentenced as follows:

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991

11 years' imprisonment with a non-parole period of 8 years

2 In this application for leave to appeal against sentence the applicant advances three proposed grounds of appeal. They are:

Ground One

The sentencing discretion miscarried because the sentencing judge found the applicant as having 'limited' remorse while finding the applicant's prospects of rehabilitation as 'good' rather than 'very good' ...

Ground Two

The sentencing judge erred in finding the applicant's moral culpability to be 'high' ...

Ground Three

The sentence imposed on the charge of manslaughter was manifestly excessive.[1]

3 The factual basis for the plea was agreed in the Amended Summary of Prosecution Opening ('Amended SPO'). Relevantly, it reads:

The charge relates to the death of 28 year old Andrew TOUMAYAN (the deceased), who was shot by the offender, as he was leaving via the front gate of premises situated at 30 Wantirna Road, Ringwood. It was at this address that a sophisticated hydroponic set up [sic] had been established for the cultivation of cannabis. Mr. TOUMAYAN had attended at the premises with a friend, for the purposes of stealing the cannabis growing therein.

The offender's conduct, in attending at the premises with a loaded firearm, which he discharged into the chest of TOUMAYAN at the gate, constitutes an unlawful and dangerous act.

Whilst the offender knew of the cannabis crop at 30 Wantirna Road, Ringwood, it is not alleged that he was involved in its cultivation.

...

The offender

The offender, Albert BIBA, was born Ermal BIBA on 12 March 1988 in Fierz Tropoje, Albania. He arrived in Australia in August 2013 under a false Greek passport in the name Pantelis Lomakin. He has three siblings but only his brother Diego BIBA resides in Australia. At the time of his arrest the offender was on a Bridging Visa, pending the outcome of his Partner [V]isa application.

...

THE OFFENDING

Charge 1 - Manslaughter

Late on 16 April 2018, the deceased contacted a friend, Frank VIGNETO[,] and asked him to come over to his house. VIGNETO did so and waited for TOUMAYAN outside. The two then travelled in TOUMAYAN's black Holden station wagon to 30 Wantirna Road, Ringwood ('Ringwood premises'). VIGNETO understood that they were going to the property to steal marijuana.

When they arrived, the deceased parked in nearby Ellison Street and the two men walked to the property. VIGNETO was carrying a backpack containing an iron bar and secateurs which the deceased had produced from the back of his car.

TOUMAYAN and VIGNETO entered the Ringwood premises via the front gate, which they closed behind them. Lights were on inside the house and the deceased knocked a few times on the front door. When nobody answered, he opened the metal security door with the iron bar. The internal door was unlocked, and they entered the house.

The entry of TOUMAYAN and VIGNETO triggered a silent 'Chuango' model G5W 3G/WCDMA alarm ... that was linked to the front door and a motion sensor in the entry corridor of the house. Between 12:45 am [and] 1:05 am, this alarm series sent a series of SMS[s] and made a series of phone calls to a pre-programmed mobile service ... ('465 service'); a number registered in the name of Hasan ACHOUR, and used by Armando DELIA, an associate of the accused.

At 12:46:23, DELIA using the 465 service contacted the offender on [a mobile] service registered in the name of Bao TO [('531 service')]. At the time of this call, the offender was in Box Hill, which is where two of the phones he was using, including the 531 service, were located.

In response to the call from DELIA regarding the activation of the alarm, the offender travelled from Box Hill to the Ringwood premises in the Toyota Prado [that he was using at the time]. CCTV from various locations along Whitehorse Road/Maroondah Highway and Wantirna Road, between the accused's Box Hill address and the Ringwood premises, show[s] the four-wheel drive travelling towards Ringwood between 12:50 and 12:59 am.

...

CCTV footage from 12:58 am shows the Prado [(being driven by the applicant)] travel past the Ringwood premises, slowing as it did so. The Prado then turned into Barkley Street and just after 1:00 am ... the offender can be seen running from Barkley Street ... into Wantirna Road in the direction of the Ringwood premises. At 1:00:26, the accused can be seen approaching the fence to the premises.

Meanwhile, TOUMAYAN and VIGNETO looked around the house, where they saw a large number of marijuana plants in four rooms. None of the plants appeared to have flowering 'head' and so they did not take any and left the house. They walked inside the garage, which was empty except for rubbish, before walking towards the front gate to leave.

As TOUMAYAN stepped out of the front gate he was immediately shot by the offender, who was carrying a loaded firearm, with the .22 calibre bullet lodging in the deceased's left chest. TOUMAYAN cried out and ran along the street, having turned to his right out of the gate. The offender ran from the left from the gate and into nearby Arlington Street. CCTV did not capture the shooting but resumed almost immediately after it occurred at 1:00:44 am. VIGNETO jumped the fence into a neighbouring property and ran out onto Wantirna Road and then Barkley Street. He saw TOUMAYAN on the street, and ran after him. At some point while he was in Barkley Street, VIGNETO threw the backpack and tools away, which were subsequently located by Police.

TOUMAYAN continued running until eventually he collapsed in the driveway of 11 Barkley Street saying he couldn't breathe. VIGNETO called out for help. He went and sat behind TOUMAYAN[,] propping him against him. He continued calling for help and then got up and began banging on doors of nearby houses, in order to seek help, before returning to TOUMAYAN where he checked for a pulse, and tried to perform mouth to mouth, pumping his chest.[2]

4 Toumayan died at the scene. The applicant fled on foot and called Delia at 1:01 am, 1:03 am and 1:04 am. Delia picked up the applicant at 1:07 am from New Street, Ringwood. The deceased sustained a gunshot injury to the left chest and died several minutes later from hypovolaemic shock.

5 A hydroponic cannabis crop was located at 30 Wantirna Road, Ringwood.

6 The motivation for the applicant's attendance at 30 Wantirna Road is also set out in the Amended SPO:

When the shooting occurred the offender had attended at the Ringwood premises ... in response to being called by DELIA who had been alerted to the activation of the silent alarm. The offender is said to have an association with the premises and was friends with Armando DELIA, whose DNA and fingerprints were found at the property. DELIA (and/or his girlfriend Pjereta Selimaj) were responsible for paying the rent for the premises via cash deposit, over the counter at NAB branches from August 2017, into the landlord, Ke ZHANG's[,] account.

It is not alleged that the offender was involved in the cultivation of the cannabis at the property. He had clearly been to the property on previous occasions. The offender's DNA was found on a number of items located inside and outside the premises, and his fingerprints on the alarm pad and an outside light.

The offender's rented vehicles, initially [a] Toyota Kluger and then the Prado, can be seen on CCTV in the vicinity of the Ringwood premises on a number of occasions in March and April 2018, consistent with telephone records placing his phone with[in] the cell tower range covering the applicable Ringwood area. On a number of occasions, the Nissan Altima ... used by DELIA can also be seen in the vicinity of the Ringwood premises. On occasions, males can be seen entering the Ringwood premises for varying lengths of time.

Notably, on 14 April 2018, the offender's Prado attended at the Ringwood premises at 1:23 am, following the activation of the silent alarm 11 minutes earlier ... (as a result of 2 people, who arrived in a white model sedan, entering the house). The silent alarm had contacted the 465 phone service used by DELIA. On that occasion, the Prado drove past the Ringwood premises, slowing as it did so before travelling further up the road and then returning and parking across the property's driveway, when two males from the Prado can be seen entering. Cell tower data from around this time is consistent with the offender's phone (the 531 service) being in the cell tower range proximate to the Ringwood premises.

At 5:52 pm the Toyota Prado again attended in the vicinity of the Ringwood premises, driving into Arlington Street, and shortly thereafter, two males entered the premises from the direction of Arlington Street. Cell tower data is consistent with the offender's phone being in the area at that time.

Again, in the early hours of 16 April 2018 at 12:30 am, CCTV footage shows the Toyota Prado drive past the Ringwood premises at least twice.

Later the same day, at around 10:30 pm that evening, the Toyota Prado is seen to drive past the property a number of times before two males entered the premises from the direction of Arlington Street, where the Prado was seen travelling. Cell tower data is consistent with the offender's phone being in the area of the Ringwood premises at this time, before returning to his Box Hill address.

7 The applicant was arrested on 31 August 2018. He made a 'no comment' record of interview.

8 The judge summarised the offending and made it clear that he was not sentencing the applicant for murder. He considered the applicant's moral culpability to be high, the applicant having made the considered decision to take a loaded firearm to guard a crop house. The judge inferred that the applicant anticipated that he may encounter a burglar: 'That is why you had a loaded gun. I find that you were prepared to use that gun, which you did, deliberately, tragically.'[3]

9 The judge was not prepared to act on the applicant's self-serving statements to his psychologist that the deceased had sought to assault the applicant immediately before the fatal shot was fired; the path of the bullet through Toumayan's body indicated he was leaning over when shot and this, the judge found, was equally consistent with the deceased ducking for cover. Ultimately the judge was not satisfied on balance that the deceased had lunged at the applicant immediately prior to the shooting. The judge was not satisfied beyond reasonable doubt that the applicant intended to shoot the deceased and could not exclude the reasonable possibility that he fired off a warning shot.

10 His Honour was not prepared to conclude beyond reasonable doubt that the offending was motivated by greed, nor was he satisfied (on balance) that it was motivated by need.

11 The judge noted that the applicant was initially charged with murder and remanded in custody. He conducted a contested committal hearing in December 2019 and on Monday 19 April 2021 his trial for murder and cannabis cultivation began. At that stage the applicant disputed (through senior counsel) that he was the shooter. On Friday 23 April a new indictment was filed over and he pleaded guilty to manslaughter. He had not made this offer previously.

12 The judge then set out the applicant's background:

• The applicant was born in Albania and was at the time of sentence (and is now) 33 years old. He is one of five siblings.
• The applicant, who is Catholic, claimed that life under communist rule in Albania was hard, and there was a deal of religious persecution. The prosecution did not dispute that the applicant suffered from post-traumatic stress disorder ('PTSD'), diagnosed by a forensic psychologist, Mr Armstrong.
• The applicant was educated in Albania to a tertiary level, graduating from Kristal University with degrees in Engineering and Information Technology.
• The applicant claimed to his psychologist that he fled Albania after a relationship with a Muslim woman caused his life to be threatened. He claims to have fled to Greece, obtained a false passport and arrived in Australia in 2013. His brother Diego also resides in this country.
• The applicant sought but was not granted asylum, but was granted a bridging visa. He was prohibited from working under this visa but did 'errands' for other members of the Albanian community, including Delia. He was married in 2014, however, the relationship was intermittent and there are no children.
• The applicant's psychologist opined that the applicant suffers from PTSD, which improved when he entered Australia, but remained as an underlying condition. Incarceration has exacerbated his PTSD symptoms. He is now receiving anti-depressant medication and counselling for that condition. The psychologist considered that imprisonment is harder for the applicant because of his PTSD.

13 The judge concluded that R v Verdins[4] principles 5[5] and 6[6] were engaged and called for some moderation of sentence. There was no causal connection between the applicant's PTSD and the offending itself capable of reducing his moral culpability.

14 The judge stated that general deterrence was an important sentencing consideration.

15 The judge noted that the applicant had no prior convictions, and had been a model prisoner since his incarceration. He accepted that the effects of COVID-19 on prison life had caused additional hardship for prisoners.

16 The judge concluded that the applicant's remorse was limited. I shall return to this issue later in these reasons.

17 The judge stated, 'Because you have no criminal antecedents and have been a model prisoner, I consider that your prospects of rehabilitation are good.' The judge noted (in a footnote), 'Were your remorse not limited, I would say "very good".'[7]

18 The judge stated that he took into account in the applicant's favour his 'real' prospect of deportation, and that that constitutes a hardship that 'adds to the many hardships of imprisonment'.[8]

19 The judge had regard to the delay of almost three years 'from charge to trial'. This delay was 'in large measure due to the pandemic, not any fault of [the applicant]'.[9]

20 The judge also considered a large number of manslaughter sentencing cases where guns were involved.[10] The judge stated that these 'informed the sentence' he would impose on the applicant.[11]

21 This ground argues that the judge specifically erred in finding limited remorse and good (as opposed to 'very good') prospects for rehabilitation. As I have observed, the judge found the applicant's remorse to be 'limited' and this informed his Honour's finding that his prospects for rehabilitation were 'good' rather than 'very good'. I consider that it was open to the judge to make these findings. The applicant entered a negotiated plea to manslaughter on the fifth day of his trial for murder. He conducted the murder trial on the basis that he was not the shooter. It is not incumbent on a sentencing judge to infer remorse from every plea of guilty. An inference of remorse, like every other inference, will depend on its factual constituents. In this case, there was very little in the underlying facts from which remorse could be inferred. The applicant provided a 'no comment' record of interview, conducted a contested committal and, apart from a self-serving statement to a psychologist, did not express remorse in any overt way. The judge did not positively find that there was no remorse, but rather confined his conclusion to one of 'limited remorse'. This Court observed in Barbaro v The Queen[12] that it was 'unsound' to necessarily conclude remorse from a plea of guilty.[13] Such a conclusion may follow if real contrition can be discerned from a determination to 'change one's behaviour and, to the extent possible, make amends',[14] or from 'sincere penitence';[15] alternatively, if all that is discerned is 'anguish [at] being caught and punished',[16] then that is no remorse. As was said in Barbaro,

It follows, in our view, that a person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone. In many instances, the most compelling evidence of this will come from testimony by the offender. A judge is certainly not bound to accept second-hand evidence of what the offender said to a psychiatrist or psychologist or other professionals, let alone testimonials from family or friends, or statements from the Bar table.[17]

22 Assuming it was open to the judge to conclude that 'remorse' was limited, then I consider that it was also open to his Honour to rein in the applicant's prospects for rehabilitation to 'good', as opposed to 'very good'. True it is that the applicant had no prior convictions, and had subsequently to his arrest been a model prisoner. But that is not the full picture. A finding of unqualified remorse will likely positively inform the picture for rehabilitation prospects and reduce the need for specific deterrence.[18] Similarly, a qualified finding of remorse will less positively inform those prospects. I consider that the nature of this offending itself can inform the prospects for rehabilitation. Acting as an armed guard for a criminal enterprise and killing an intruder in the course of those security activities, in my view, can be distinguished from offending where an isolated act of stupidity, negligence or gross misjudgement sits behind the criminal act alleged. The former circumstances bespeak an association with the criminal world. They do not mean full rehabilitation is impossible, but may evidence a long and more difficult pathway to that object.

24 This ground alleges specific judicial error in the judge's conclusion that the applicant's moral culpability was 'high'. The applicant, an intelligent man, made the considered decision to accept the role of providing security for an alleged crop house of some sophistication. He armed himself with a loaded firearm to carry out his security duties and, upon confronting an intruder, intentionally discharged that firearm. It was clearly open to the sentencing judge to infer that the applicant was prepared to use the firearm, and it was also open to the judge to conclude that the offending disclosed a high degree of moral culpability.

25 The crime of manslaughter can be committed in many ways. A vast spectrum of criminality can be exhibited. In this case, for the reasons expressed in the preceding paragraph, the judge was entitled to conclude that the moral culpability or blameworthiness was high indeed. Any lesser finding would have been, in my view, unjustified by the objective evidence. This ground is not reasonably arguable.

26 The applicant contends that the sentence imposed was manifestly excessive due to the following combination of circumstances:

• The applicant's plea of guilty.
• The significant utilitarian value of the plea.
• The applicant's diagnosis of PTSD.
• The application of Verdins principles 5 and 6 resulting from the applicant's PTSD.
• The applicant's previous good character and lack of prior criminal history.
• The 'glowing character references'[19] provided on the plea.
• The applicant had been a 'model prisoner' during his time in custody, including being upgraded to the 'essential worker program', completing various therapeutic courses, providing clean urine samples and engaging in counselling.
• Prison would be more burdensome because of the 'additional hardships' experienced during the COVID-19 pandemic with its associated restrictions.
• The prospect of deportation at the end of the applicant's imprisonment is an additional 'hardship that adds to the many hardships of imprisonment'.[20]
• The applicant's prospects of rehabilitation were 'good'.[21]
• There had been an 'inordinate' delay in finalising the applicant's matter, which was not attributable to him.[22]
• The need for specific deterrence was reduced because of the applicant's lack of criminal antecedents and his conduct as a model prisoner.

27 For reasons I have set out in considering ground 2, it was open to the judge to find the offending fell at the 'high end of the spectrum of seriousness for manslaughter'.[23] The applicant made a considered decision to bring a loaded firearm to a criminal setting in circumstances where he was prepared to use the firearm and then intentionally discharged it in close proximity to the deceased man. This decision was part of his criminal duties as a 'security guard' for a sophisticated, clandestine hydroponic cannabis crop. The consequences of his offending have been profound as evidenced by the Victim Impact Statement made by the deceased's mother.

28 Whilst there were powerful factors acting in mitigation (set out at [26] of these reasons), the judge correctly identified general deterrence as having an important part to play in this sentencing exercise. I agree with the respondent's contention that '[t]he acquisition, possession and use of a firearm to protect an illegal activity that then involves the taking of a human life in a suburban street calls for stern punishment'.

29 I consider that ground 3 is not reasonably arguable and the sentence imposed was within the range available to the judge in the reasonable exercise of his sentencing discretion.

30 During oral argument leave was granted for the applicant to add an additional ground in the following terms:

Ground Four

The learned sentencing judge erred in failing to take into account the heightened utilitarian value of the applicant's guilty plea on account of the disruption to the Courts caused by Covid-19.

31 In written submissions prepared for the purposes of the plea hearing, the applicant's counsel contended that there was an 'especially high' utilitarian value to the plea entered by the applicant as a result of it being made during the pandemic 'given the disruption to courts caused by Covid-19 and the length and complexity of the proceeding'. The case of DPP v Bourke[24] was cited. The applicant's sentence was handed down one week prior to this Court's decision in Worboyes v The Queen,[25] although Bourke endorsed a similar principle - namely that pleas entered during the pandemic could attract an enhanced utilitarian value as a consequence of relieving the court of the practical difficulties of conducting a jury trial.

Yours was a late plea. While it will still attract a significant discount because of its utilitarian benefits - had the trial [run] its course it was anticipated to take about four weeks - I am not satisfied that it was a plea motivated by strong remorse as opposed to self-interest.[26]

33 It is unclear whether the judge took into account an 'enhanced' utilitarian discount consequent upon the timing of the plea. Had the judge done so the applicant may have been entitled to a modest sentencing benefit. In the circumstances I consider this ground to be reasonably arguable and I shall grant leave to appeal under this ground.

[3] R v Biba [2021] VSC 327, [8] (Beale J) ('Reasons').

[4] (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[5] Holding that a mental health condition at the time of sentence may mean that a given sentence will weigh more heavily on the offender than it would a 'normal' person: ibid 276 [32] (Maxwell P, Buchanan and Vincent JJA).

[6] Holding that a serious risk of imprisonment having a significant adverse effect on an offender's mental health will tend to mitigate punishment: ibid.

[10] His Honour cited R v Ashman [2020] VSC 105; R v Atesok [2017] VSC 599; R v Cicekdag [2017] VSC 781; R v D'Angelo [2014] VSC 522; R v Howard [2014] VSC 194; DPP v McDonald [2017] VSC 465; R v Munt [2014] VSC 675; DPP v Osborn [2017] VSC 535; R v Rapovski [2016] VSC 706; DPP v Russo [2019] VSCA 129; R v Samaras [2019] VSC 120; R v Sypott [2003] VSC 327; R v Torun [2014] VSC 146; DPP v Yucel [2019] VSCA 53.

[12] [2012] VSCA 288 ('Barbaro').

[13] Ibid [35] (Maxwell P, Harper JA and T Forrest AJA).

[24] [2020] VSC 130, [32] (Jane Dixon J) ('Bourke').

[25] [2021] VSCA 169.

[26] Reasons [41] (footnote omitted).