DPP v Tiba & Ors [2013] VCC 1075

(ii) Armed robbery contrary to s75A(1) of the Crimes Act 1958. The maximum penalty for that offence is 25 years' imprisonment.

(iii) Robbery contrary to s75(1) of the Crimes Act 1958. The maximum penalty for that offence is 15 years' imprisonment.

(iv) Being a prohibited person in possession of a handgun contrary to s5(1A) of the Firearms Act 1996. The maximum penalty for that offence is 15 years' imprisonment.

2 Abdul Tiba, you have pleaded guilty to the following offences:

(i) Theft of a motor vehicle contrary to s74(1) of the Crimes Act 1958.

(ii) Two charges of armed robbery contrary to s75A(1) of the Crimes Act 1958.

(iii) Attempting to pervert the course of justice contrary to common law. The maximum penalty for that offence is 25 years' imprisonment.

3 Ali Tiba, you have pleaded guilty to one count of theft contrary to s74(1) of the Crimes Act 1958.

4 Suhan Rahman, you have pleaded guilty to one count of attempting to pervert the course of justice contrary to common law.

5 In the case of Mohammed Tiba, Abdul Tiba and Ali Tiba, your pleas of guilty were entered following twelve days of legal argument in this court. I delivered a number of rulings in relation to the admissibility of evidence in each of your cases, and further I ruled that your trials be temporarily stayed until Victoria Legal Aid provided each of you with the services of an instructing solicitor during the course of the trials that you were to face. Victoria Legal Aid subsequently agreed to do this, but shortly prior to the date upon which your trials were due to commence, pleas of guilty were entered by each of you in relation to the charges now before the court. Many other charges were not proceeded with by the prosecution.

6 Your pleas of guilty have avoided the necessity of a number of complex criminal trials, and in each case you have spared the community the cost of these trials and the need for witnesses to give evidence. For this reason I accept there is considerable utility in the pleas of guilty, and I also accept that they exhibit a degree of remorse in each of your cases. Accordingly, I have taken your pleas of guilty into account in your favour in mitigation of sentence.

7 In your case, Suhan Rahman, your plea of guilty was also entered shortly before your trial was due to commence, and it too has spared the community the expense of a criminal trial and the need for witnesses to give evidence. I also accept in your case that it exhibits a degree of remorse for your offending, and I have also taken your plea of guilty into account in your favour in mitigation of sentence.

8 Two prosecution openings were read to the court and tendered in evidence, and your offending may be summarised as follows-

9 On 2 July 2011 you, Mohammed Tiba and Abdul Tiba, attended a party at a house in Delahey. At the party, Rajiva Obeyesekere offered to introduce both of you to persons who would be able to supply you with methylamphetamine. You left the premises with Mr Obeyesekere in his mother's black Jeep Wrangler and drove to Niddrie. After discussions with associates of Obeyesekere, during which time you, Mohammed Tiba, produced a handgun, you were told by Conrad Robson, an associate of Obeyesekere's, that he would be able to arrange the purchase of methylamphetamine in Cranbourne. On the way to Cranbourne, Ali Tiba was collected at the Sunshine railway station. In the vehicle at that time was Robson, Obeyesekere, and Mohammed Tiba, Abdul Tiba, and Ali Tiba.

10 You then drove to Cranbourne and met Robson's associates Adam Belt and Steven Lakatos. Belt and Lakatos directed you to the Cruise Carwash nearby.

11 After the methylamphetamine was provided to you Mohammed Tiba, you became angry and produced the handgun and fired it into the ground. You ordered Robson, Obeyesekere, Belt and Lakatos to stand next to the Jeep, and Abdul Tiba then searched them. You, Ali Tiba, took the wallets of Belt and Obeyesekere.

12 It is this conduct relied upon by the prosecution in proof of the charge of armed robbery of Obeyesekere and Belt in the case of Mohammed Tiba and Abdul Tiba. These charges are rolled-up charges, and they encompass two separate acts of armed robbery. In your case, Ali Tiba, it is the act of taking the wallets of Belt and Obeyesekere which is relied upon by the prosecution in proof of the charge of theft. The prosecution accept that you were not a party to any agreement to rob Belt or Obeyesekere, and you were not party to any agreement that a firearm be used for that purpose.

13 Shortly after this, Belt and Lakatos were allowed to leave and you, Mohammed Tiba, informed Obeyesekere that you would be driving the Jeep from now on, and you and Abdul Tiba continued to use it until you were each arrested. It is this conduct relied upon by the prosecution in proof of the charge of theft of a motor vehicle.

14 On 4 July 2011 you, Mohammed Tiba and Abdul Tiba, whilst driving the Jeep motor vehicle, intercepted a vehicle being driven by Matthew Vains and Philip Roche on the Metropolitan Ring Road in Thomastown. You intercepted the vehicle by using an e-flare, which when activated produced a flashing blue and red light similar to that used by emergency vehicles. The driver of the vehicle, Vains, thought he was being intercepted by police, and you, Abdul Tiba and Mohammed Tiba, approached his vehicle after he brought it to a stop.

15 You, Mohammed Tiba, identified yourself as an undercover police officer and said to Vains and Roche "Where are the drugs, boys?" You, Abdul Tiba, lifted your shirt to reveal what appeared to be a handgun tucked into your belt. It is the prosecution case that Mohammed Tiba was not aware that you did this. You, Mohammed Tiba, took Vains' wallet and keys from him and you, Abdul Tiba, took Roche's wallet and his keys, stating "We're not mucking around, boys." It is this conduct relied upon by the prosecution in proof of the charge of armed robbery against you, Abdul Tiba, and the charge of robbery against you, Mohammed Tiba and these are also rolled up charges.

16 On 5 July 2011 you, Mohammed Tiba, and you, Abdul Tiba, were arrested in the Jeep outside premises located at Unit 1, 10 Vule Street, St Albans. The vehicle was searched by investigating police, who located a Steyr 9-mm Luger semi-automatic handgun. At that time you, Mohammed Tiba, were a prohibited person for the purposes of the Firearms Act 1996, and it is your possession of this handgun which is relied upon by the prosecution in proof of the charge of being a prohibited person in possession of an unregistered firearm.

17 You, Mohammed Tiba and Abdul Tiba, were both arrested and remanded in custody on 5 July 2011, and you, Ali Tiba, were arrested at premises in Coolaroo on 5 July 2011 and you were also charged and remanded in custody.

18 Following this, you, Suhan Rahman, were placed on the Barwon Prison visitors' register for Abdul Tiba. You have been friends since your early childhood. On 29 July 2011 you, Suhan Rahman, visited Abdul Tiba at Barwon Prison. The following day you, Abdul Tiba, telephoned Rahman and had a conversation with him regarding Rahman visiting Rajiva Obeyesekere's family home in Sydenham. The Obeyesekere family had moved from the home after the charges were laid on 5 July 2011.

19 On 31 July 2011 Anusha Obeyesekere returned to her home in Sydenham and there found a note asking her to ring a particular telephone number. She did so, and you, Rahman, hung up when she telephoned. On 2 August 2011 Rajiva Obeyesekere rang the telephone number and spoke to you, Suhan Rahman. During the course of the conversation, you told Obeyesekere to change his witness statement to state that he had lent his mother's Jeep to a friend, Stefan, who had also been at the party in Delahey. You said to Obeyesekere "My uncles are going to go away for three to four years, and when they get out they're not going to be happy."

20 On 9 August 2011 you, Abdul Tiba, telephoned Rahman requesting that he further pursue the approach to Obeyesekere. Investigating police had become aware of your approach to Obeyesekere and they telephoned you, requesting a meeting. On 12 August 2011 you were arrested by Special Operations Group officers at the Bunnings store in Sunshine, following a telephone conversation between yourself and an undercover police operative who you thought was Rajiva Obeyesekere. Following your arrest you were charged with attempting to pervert the course of justice and remanded in custody.

21 It is clear from this summary of your respective offending that in the case of Mohammed Tiba and Abdul Tiba your offending may properly be described as of the utmost seriousness. The sentence that I impose must be calculated to deter each of you and others from offending in the way that you have, and you must be punished for that offending. The use of a firearm in such circumstances plainly involves a high risk of injury to others and, in my opinion, your interception of innocent members of the public whilst you were posing as police officers is a particularly serious example of the offences to which you have pleaded guilty.

22 In your case, Ali Tiba, I accept that your offending is of considerably less seriousness than that of your co-offenders, and during the activities that took place in Cranbourne you were attempting to restrain their conduct.

23 In relation to the charge of attempting to pervert the course of justice, in your case, Abdul Tiba, and in the case of Suhan Rahman, as the authorities made clear, offending of this nature is calculated to seriously impair the administration of criminal justice, and any sentence that I impose must be formulated to deter others from offending in this way.

**25 Mohammed Tiba, you were born in Lebanon on 28 June 1980, and you will turn 33 years tomorrow. You migrated to Australia with your family when you were two years old. By my reckoning you have admitted 92 prior convictions or findings of guilt from fourteen court appearances. Your criminal history includes multiple convictions for armed robbery, attempted armed robbery, possession of controlled weapons, and other offences of violence. You also have numerous prior convictions for drug offences and serious traffic offences.

26 You are the fifth of nine children and, as I have said, you were born in Lebanon. You have three children, aged eight, six and 18 months. You were raised in Preston and were educated at Bell Primary School and Preston Tech until Year 8. At the age of thirteen you and a brother were sent to Pakistan by your family to study Islam and the Koran. This was a disturbing experience for you and, whilst it was intended that you would remain in Pakistan for five years, you returned to Australia and did not continue your education here. You soon became addicted to illegal drugs of dependence, and I accept that you developed a polysubstance abuse disorder as a teenager. Your work history has been poor, and your life to date has been characterised by drug use and offending resulting in multiple terms of imprisonment.

27 I have received in evidence a report of Mr James Drury dated 3 February 2010. Mr Drury is a clinical neuropsychologist and he carried out a neuro-psychological assessment of you at that time. The report was prepared for legal proceedings in 2010 and Mr Drury concluded that following a serious assault upon you in 2008 you suffered a degree of cognitive impairment, which would in turn be exacerbated by methylamphetamine use.

28 I have also received in evidence a report of Carla Lechner, a clinical and forensic psychologist, dated 12 June 2013. Ms Lechner conducted her assessment on 11 June 2013 at Barwon Prison. She concluded that you presented with symptoms of clinical depression and that, following testing, your symptoms fell into the extreme range. Her report also details your disturbed and disrupted developmental history and the development of your polysubstance abuse disorder.

29 Your counsel did not submit that your cognitive impairment as detailed by Mr Drury was a cause of your offending in this instance, but I nevertheless accept that your cognitive impairment, together with the clinical depression observed by Ms Lechner, means that your time in custody is more onerous for you than it would be for a person not suffering from these conditions.

30 You have been in custody since your arrest on 5 July 2011. Virtually the entirety of that time you have been housed in the Acacia unit at Barwon Prison or the Charlotte high-security unit at Port Phillip Prison. The regime in those units, in my opinion, may properly be described as extremely onerous. Furthermore, it must be borne steadily in mind that whilst you were housed in those units you were not a convicted prisoner. Whilst housed in those units you are confined to your cell alone for 22 hours each day. You have access to a television, but no other facilities in the cell other than a shower and a toilet. You are permitted one contact visit per month, and two non-contact visits per week. Each day you are allowed to spend one hour outside your cell in a yard. However, you are alone at this time. Food is delivered to you through a trapdoor in your cell door, and you have no cooking facilities of your own. Because of the conditions of your incarceration, you are not permitted to undertake work or any courses of study. For that reason your prison income is limited to $5 per week, which is insufficient to purchase a newspaper each day. Library facilities are not provided to you.

31 In my opinion, your incarceration may be described as solitary confinement, and I accept that the manner of your incarceration has caused in you a high degree of psychological disturbance, resulting in the clinical depression observed by Ms Lechner. This is hardly surprising and, as I observed during the plea in mitigation, a real question arises as to whether or not the circumstances of your detention comply with the provisions of s22 of the Charter of Human Rights and Responsibilities Act 2006.

32 Your counsel submitted during the course of the plea in mitigation that the circumstances of your incarceration whilst on remand are a significant sentencing consideration in your case. I accept that this is so and, because you have been housed in such conditions, I have substantially reduced the penalty that I would have otherwise imposed for your offending.

33 Any assessment of your prospects of rehabilitation must be guarded. You have an extensive criminal history, which is closely linked to your polysubstance abuse disorder. Your counsel submitted that during your period on remand you have re-evaluated your life, and that upon your release you are determined to remain drug-free and develop a healthy relationship with your children. You are in a stable relationship with a young woman who has attended the court proceedings, and I accept that you have her support and the support of the law-abiding members of your family. I accept that it is appropriate for me to fix a non-parole period in your case that will provide for a relatively lengthy period of supervision upon your release from prison.**

**34 Abdul Tiba, you were born on 25 January 1990 in Melbourne and you are now aged 23. Your mother, Lynette Dryden, a Yorta Yorta woman from Shepparton married your father, Bassam Tiba, in 1989. Bassam Tiba is your co-offender Mohammed Tiba's older brother. Your other co-offender, Ali Tiba, is also your uncle.

35 Following your birth, you were raised in your grandparents' home in Preston, and then in 1991 your parents separated and your mother returned to Shepparton. You spent time with her and your father, and your primary education was disrupted, with you attending primary schools in Shepparton and Preston.

36 Your father remarried on two occasions and, following a custody dispute in the Family Court of Australia, he was granted custody of you in 1999. You have had no contact with your mother since that time, with the exception of one prison visit whilst you have been in custody. Her brothers, Stanley and David Dryden, were present during your plea in mitigation, and I accept that you regard your indigenous heritage as an important part of your identity, and your relatives in the Dryden family will provide you with ongoing support on your release from prison.

37 In 1999 your father committed an extremely serious assault on his then wife, Patricia, and in September 2000 was sentenced in this court to six years' imprisonment with a non-parole period of four years and six months. From that time on, you were cared for by your father's third wife, Nohar El Hanafy, who continues to be an important and supportive influence in your life.

38 Your father was released from prison in May 2004, and on 13 June 2004 he killed Richard Haddara following a dispute over moneys owed to your father's older brother. The following day your father fled to Lebanon and two weeks later you, and other members of your family, joined him there. You were then fourteen years old.

39 Between 2004 and 2009 you resided in Lebanon, and then in Egypt, where you undertook Islamic studies in Cairo. Following this you worked as a volunteer constructing a mosque in the Solomon Islands.

40 On 28 October 2008 your father was arrested in the Solomon Islands and extradited to Australia in relation to the death of Richard Haddara. On 4 February 2011 he was sentenced to ten years' imprisonment with a non-parole period of six years and six months in relation to one charge of manslaughter.

41 Following your return to Australia, you moved into your grandparents' house in Coolaroo, and you worked part-time in your uncle's glazing business. After your father was sentenced to imprisonment in relation to the manslaughter of Richard Haddara, the Tiba family home was shot at and a number of other acts of violence were directed at your family. You moved out of the house and quickly became involved in drug abuse. Prior to October 2010 you had not offended in any way and I accept that the complex social, personal and cultural circumstances that you found yourself in were such that you turned to drug use, which in turn quickly led to you committing criminal offences.

42 The prosecution did not allege that you have any prior convictions, but your counsel informed me that you appeared before the Melbourne Magistrates' Court on 21 February 2012 in relation to driving, weapons, and drugs charges, wherein you were sentenced to be imprisoned for one month, and again on 27 September 2012, wherein you were dealt with in relation to firearms and burglary charges, and sentenced to be imprisoned for seven months. Both of these court appearances occurred whilst you were remanded in custody for the offences before this court.

43 Upon being remanded in custody on 7 July 2011 you were transferred to Barwon Prison as a maximum security prisoner. The reason for this was your association with "conflict between Middle Eastern families or groups". You were then 21 years of age, with no prior criminal history. Upon being placed in the Melaleuca high-security unit at Barwon Prison, you were subjected to the same conditions that applied to your uncle, Mohammed Tiba. As I have already observed, in my opinion those conditions are extremely onerous and plainly exceptional for a young offender with no prior criminal history.

44 I have received in evidence a psychological report of Elizabeth Warren, consulting and forensic psychologist, dated 14 June 2013. In Ms Warren's opinion you are suffering from marked depression and anxiety, and "Mr Tiba has experienced his imprisonment as arduous in the extreme". I accept that this is so and that you have been held in virtual isolation or solitary confinement, with the exception of some transfers to Port Phillip Prison, for approximately two years.

45 Your counsel submitted that your attempt to have Mr Obeyesekere change his witness statement was amateurish and a direct result of the great anxiety you were experiencing in prison. I also accept that this is so.

46 Whilst you were in the young offenders' unit at Port Phillip Prison you completed a number of programs intended to facilitate your rehabilitation, and I accept that you are determined to rehabilitate yourself upon your release from prison. You have been imprisoned in either the Charlotte management unit at Port Phillip Prison or the Acacia unit at Barwon Prison since 15 March 2012, and as a consequence of that you have been unable to engage in any further courses designed to facilitate your rehabilitation.

47 Your stepmother, Ms El Hanafy, has provided a detailed reference to the court in relation to your developmental history and personal circumstances. She is currently running her own family day-care business and studying a Bachelor of Education. She was a mathematics teacher and coordinator in Egypt, and I accept that she is a positive influence in your life and that you will be able to reside with her on your release from prison.

48 I accept that your prospects of rehabilitation are good, but they are dependent upon you remaining drug-free and also having no further involvement in the conflict between your family and the Haddara family.**

**49 Ali Tiba, you were born on 13 March 1992 and are now aged 21. You have admitted two prior court appearances in the Children's Court in 2009 and 2010, resulting in you being fined without conviction and released on a youth supervision order without conviction. You are the second-youngest of the nine children in the Tiba family and Mohammed Tiba, your co-offender, is one of your older brothers.

50 You have been in a relationship with Stephanie Genovezos since 2010 and you plan to marry, having already participated in a form of marriage in Lebanon.

51 Your educational and work history has also been disrupted, and prior to your arrest in respect of the matter before the court you had developed a polysubstance abuse disorder. You also were residing in the family home in Coolaroo, and were exposed to acts of violence carried out in the setting of the dispute between your family and the Haddara family.

52 Following your arrest you were remanded in custody and placed in the youth unit at Port Phillip Prison, but following an incident in that unit you were transferred to the Acacia unit at Barwon Prison in February 2012. On 30 October 2012 you were released on bail by his Honour the Chief Judge, having spent eight months in the Acacia unit. During that time you were the subject of 23-hour lockdown in your cell, and were the subject of the same conditions of incarceration experienced by Mohammed Tiba and Abdul Tiba. As I have already observed, in my opinion those conditions may properly be described as extremely onerous, and you were the subject of such conditions at the age of nineteen.

53 Upon your release on bail you engaged with the Youth Support Advocacy Service in the north-western suburbs of Melbourne, and you have attended there on a regular basis in relation to your drug addiction and previous offending behaviour. I have received in evidence a reference from your case workers at that organisation, who both express the opinion that you have shown motivation for change and that you have been drug-free since your release from prison. Furthermore, I accept that it is a condition of your relationship with Ms Genovezos that you remain drug-free and obtain employment.

54 You are working part-time for your brother, Hassam Tiba, in his glazing business and your partner, Ms Genovezos, is a childcare worker. You rent premises together with her in Epping, and I accept that you are determined to now lead a law-abiding life. I further accept that your prospects of rehabilitation may properly be described as very good. But, as I have already observed in the case of your uncle and brother, this is dependent upon you remaining drug-free and no longer participating in the conflict between your family and other families.

55 Your counsel submitted that in all the circumstances I should impose upon you a short period of imprisonment, and I accept that this is the appropriate course to adopt in your case.**

**56 Suhan Rahman, you were born in Melbourne on 27 December 1991 and you are now aged 21. Your parents migrated to Australia from Bangladesh, and thereafter resided in Roxburgh Park. You have two younger siblings aged 11 years and 8 years. Your mother is an electrical engineer employed by Telstra, and your father an agricultural scientist previously employed by the Department of Defence Procurement. Your family have not previously ever been exposed to the criminal justice system.

57 You have one minor previous court appearance in the Children's Court in relation to the possession of cannabis, and two subsequent court appearances involving unlicensed driving and assault, for which you were fined $1,000.

58 You are currently studying at RMIT University a degree in construction management. You are in the fourth year of that course, which you expect to complete next year. You do not have any psychological or substance abuse issues, and you do not use drugs or alcohol. You are a keen footballer with the Jacana football club, and coach the under-12s at that club. You are engaged to be married.

59 I have received in evidence a character reference from Dr Sarah Holdsworth, a lecturer in the Department of Construction at RMIT, that speaks very highly of you, both in your performance at the university and your contribution to the student life there. I have also received in evidence three characters references from persons who know you and your family, that also attest to your good character and participation in your local community.

60 Following your arrest on 12 August 2011 a number of articles were published in Melbourne daily newspapers describing you as having ties to "the notorious Tiba crime family". These publications caused you and your family considerable embarrassment and concern, and I accept that you are deeply remorseful for your offending and also deeply remorseful for the embarrassment you have caused to your parents.

61 You have known Abdul Tiba since you were a child as I have already said, and I accept that your offending was the result of a sense of misguided loyalty towards him. In my opinion your prospects of rehabilitation may properly be described as excellent, and I have no doubt that the four days that you spent in the Melbourne Custody Centre following being charged with this offence was an occasion of great reflection for you.

62 Whilst the offence of attempting to pervert the course of justice is plainly a serious one, in my opinion, imprisonment, either to be served or suspended, is clearly the last resort in relation to a person of your age and antecedents, and the imposition of such a penalty would in all probability harm your future prospects for employment following the completion of your university studies. In my opinion, the appropriate proportionate penalty to be imposed in your case is the imposition of a community correction order without further conditions, with the exception of the imposition of a condition that you perform unpaid community work.

63 Prior to passing sentence in relation to each of you, I also record that I have received in evidence two victim impact statements of Anusha Obeyesekere in relation to the circumstances surrounding the theft of her motor vehicle and the impact upon her and her family of the offending and, in particular, the impact upon them of the attempts made by you, Abdul Tiba, and you, Suhan Rahman, to persuade Rajiva Obeyesekere to change his witness statement. I accept that these circumstances have had a traumatic effect upon her and her family.

64 In the result, the sentence of the court is as follows-**

**65 Mohammed Tiba, on the charge of theft of a motor vehicle you are convicted and sentenced to be imprisoned for 9 months.

66 On the charge of armed robbery you are convicted and sentenced to be imprisoned for 3 years and 6 months.

67 On the charge of robbery you are convicted and sentenced to be imprisoned for 2 years and 6 months.

68 On the charge of being a prohibited person in possession of an unregistered firearm you are convicted and sentenced to be imprisoned for 18 months.

69 I order that 3 months on charge 1, 12 months on charge 3, and 6 months on charge 4, be served cumulatively on each other and cumulatively on the sentence in relation to the charge of armed robbery. This makes for a total effective term of imprisonment of 5 years and 3 months.

70 I order that you serve 2 years' imprisonment before becoming eligible for release upon parole.

71 I declare that you have served 712 days by way of pre-sentence detention not including today.

72 But for your plea of guilty I would have sentenced you to a total effective term of imprisonment of 7 years and imposed a non-parole period of 4 years.**

**73 Abdul Tiba, in relation to the charge of theft of a motor vehicle you are convicted and sentenced to be imprisoned for 6 months.

74 In relation to the charge of armed robbery in relation to the victims Belt and Obeyesekere you are convicted and sentenced to be imprisoned for 2 years.

75 In relation to the charge of armed robbery in relation to the victims Vains and Roche you are convicted and sentenced to be imprisoned for 2 years and 6 months.

76 In relation to the charge of attempting to pervert the course of justice you are convicted and sentenced to be imprisoned for 6 months.

77 I order that 3 months of the sentence on charge 1, 6 months of the sentence on charge 2, and 3 months of the sentence on charge 4, be served cumulatively on each other and cumulatively on the sentence in relation to charge 3, the charge of armed robbery. This makes for a total effective term of imprisonment of 3 years and 6 months.

78 I order that you serve 18 months' imprisonment before becoming eligible for release on parole.

79 I declare that you have served 513 days of pre-sentence detention not including today.

80 But for your plea of guilty I would have sentenced you to a term of imprisonment of 5 years and imposed a non-parole period of 3 years.**

**81 Ali Tiba, in relation to the charge of theft you are convicted and sentenced to be imprisoned for 8 months.

82 I declare that you have served 335 days by way of pre-sentence detention not including today.

83 But for your plea of guilty I would have sentenced you to a term of imprisonment of 12 months.**

84 Suhan Rahman, in relation to the charge of attempting to pervert the course of justice you are convicted and released on a community correction order for a period of 12 months on the core conditions required by the Sentencing Act 1991, and I order that you perform, during the course of that order, 80 hours of unpaid community work.