R v Tiba [2011] VSC 13

3 Haddara, a heroin addict, did not supply the goods and did not return the money. You remained in custody until May 2004. Zain had been pursuing Haddara for the equipment for several months to no avail. Haddara had given your brother various false explanations as to the absence of the equipment and Zain conveyed these to you. Zain also requested that you refund the $2000 he had provided to Haddara.

4 Upon your release you made contact with Haddara seeking a meeting. Haddara avoided you, as he had avoided your brother. Ultimately you met him on 13 June 2004.

5 At about 2.15 pm on that day Haddara and you arrived at the house he shared with Helen Shillingford. You remained in his company during that afternoon. You travelled with him in his red Holden sedan to Zain's house in Broadmeadows. You told Zain you were going to get the goods Richard had promised. You borrowed a further $100 from your brother and you and Haddara left. You told your brother you were in a hurry. No acrimony was observed between you and Haddara by either Ms Shillingford or Zain Tiba.

6 At about 7.00 pm you returned to Zain's house. You were driving the red Holden. The deceased was lying in the back seat and appeared to your brother to be seriously injured or dead. You told your brother that you had argued with Haddara over the money and that you had "accidentally stabbed him".

7 Zain entered the Holden and you drove towards the Northern Hospital in Epping, at Zain's direction. In Thomastown you departed from this route and parked the car in the car park I have mentioned earlier. You told your brother that Haddara was dead and that you were neither going back to gaol nor to the hospital.

8 You left the scene on foot, and went to your brother Mohammed's house in Tullamarine. Your wife and children joined you there. You left Australia on 14 June 2004 using Mohammed Tiba's passport and identity.

9 There is precious little evidence as to what actually occurred in the immediate lead up to Haddara's death. You made a no comment record of interview and for reasons that I shall explain shortly I am not prepared to act upon the version of events advanced by your initial counsel Mr Lovitt QC. In short the evidence as to what actually occurred is confined to the following:

(a) You told your brother that you and Haddara had argued and that you had accidentally stabbed him.

(b) You told Detective Sergeant Ron Iddles of the Homicide Squad in a telephone conversation in 2005 that Haddara was stabbed once, it was not premeditated, it occurred at your home, and "it was more like involuntary manslaughter" than murder.

I ignore a conversation attributed to you by your father. The prosecution do not rely upon it and your counsel disavowed it.

10 On the first day of your plea Mr Lovitt advanced your instructions as to the events in question. They can be found at pages 40ff of the transcript. I do not propose to recite them other than to say that they are entirely inconsistent with your plea of guilty to manslaughter. I indicated at the time that I must sentence you on a basis that is consistent with your plea. You have not sought to retract that plea either on the first day of hearing, or the second day when you were represented by different but equally experienced and competent counsel, Mr Van de Weil QC. By that plea you have admitted that your act in killing Haddara was unlawful and objectively dangerous.

11 I shall proceed to sentence you on the following factual basis:

(a) There was an argument leading up to the stabbing over Haddara's failure to account for the $2,000 he had effectively stolen from your brother Zain.

(b) There was one stab wound only to the chest of Haddara.

(c) There was no intention on your part to kill or cause really serious injury. Haddara died as a result of your unlawful and dangerous act.

(e) The stabbing occurred spontaneously in the context of the earlier mentioned argument.

12 I turn to your personal circumstances. You were born in Lebanon and came to Australia with your family when you were 12. You are the second oldest of 8 children and you enjoyed a normal early life in a close family. You completed year 10 at Preston Technical School. Up until 2000 you had had relatively minor brushes with the legal system, although you were fined without conviction for assault in 1997 and again but with conviction in 2000. On 20 September 2000 you pleaded guilty to a brutal assault upon your wife. I have had the advantage of reading Judge Barnett's sentence ("the assault sentence"). He describes in graphic detail the unlawful detention and savage beating that you inflicted upon her with objects varying from a hose to a metal tipped cane. Not surprisingly you were sentenced to a substantial term of imprisonment which you were still serving when you met Haddara.

13 His Honour sentenced you to six years imprisonment with a minimum term of four years and six months before becoming eligible for parole. As I have observed you were released on parole in May 2004 and this offence was committed approximately one month later. You left the country immediately and over the ensuing four years lived with your wife and children in Lebanon and then Egypt. You and your wife worked as English teachers during this time. You left Egypt for Honiara in the Solomon Islands and were arrested there immediately upon your arrival on 28 October 2008. You have been in custody since that time. It is necessary to set out in some detail how your time since 28 October 2008 has been accounted for.

14 From 28 October 2008 you were detained in Honiara for about four or five weeks and then extradited to Australia. I understand the circumstances of your imprisonment in Honiara were difficult for you. Shortly after your arrival here, on 10 December 2008 your parole on the earlier matter was revoked. By then you had been imprisoned on this offence for 43 days. From 10 December 2008 until 5 June 2010 you served out the balance of the assault sentence and from then until todays date you have been remanded in custody effectively on the manslaughter charge before this court.

(a) Your pre-trial detention has been agreed at 286 days, not including today.

(b) Were it not for the parole you owed on the assault sentence your pre-trial detention on this offence would be approximately 19 months greater than, in fact, it is.

(c) Section 16 (3B) of the Sentencing Act requires that any sentence I impose for this offence be served cumulatively upon the assault sentence, unless exceptional circumstances are demonstrated. Mr van de Wiel QC did not argue that such circumstances existed.

(d) Whilst I must impose a sentence that is cumulative upon the assault sentence both Mr Ryan SC who prosecuted and your counsel submitted that in the unusual circumstances of this case I ought moderate any sentence I am minded to impose to allow for the principle of totality to apply. Whilst the circumstances of this case are subtly different from other cases dealing with this principle (see for example R v Piacentino [2007] 15 VR at 501, Postiglione v The Queen 1997 HCA 26) I am satisfied that I ought reflect this principle in this sentencing exercise to mitigate in a moderate way what otherwise strict justice would indicate.

16 The fact remains that you have pleaded guilty to a most serious offence, and you have a serious and highly relevant prior conviction. As a result of your conduct a man is dead and his family grieves for him. I have read seven Victim Impact Statements which, insofar as they are relevant, demonstrate starkly that grief. Whatever the deceased's failings may have been, his family have lost someone much loved and so has his partner Ms Shillingford.

17 A psychological assessment and court report prepared by Dr Ball was tendered on your plea. He assessed you as an intelligent and reflective man who exhibited no evidence of frank mental illness. I found Dr Ball's report to be of limited assistance however. In it he recited your account of the stabbing in the same terms as Mr Lovitt addressed to me during your plea hearing. As I observe in paragraph 10 of these reasons that account is inconsistent with your plea. Dr Ball's opinion that you suffer from Post Traumatic Stress Disorder relies almost totally on the accuracy of this account. I am unable to accept an account that is inconsistent with your plea and it follows that I cannot consider , in your favour, a diagnosis that is predicated on that account. Dr Ball refers to your current circumstances of incarceration which I will deal with elsewhere in these reasons.

18 I consider that the principle of general deterrence must be given significant weight in the sentence I am about to impose. Whilst I have found your offending was spontaneous, the use of a knife to settle an argument is a common enough event to demand that I endeavour to deter others so minded. Given your prior history, I consider that personal deterrence also has some role to play in this exercise. Your conduct also calls for punishment and denunciation.

19 It is difficult to discern any remorse for your offending. You fled Australia immediately and had to be extradited back here. I consider that there is nothing in your instructions about the offending that is capable of demonstrating any remorse whatsoever. You have pleaded guilty and I take this into account. You have spared those close to the deceased the ordeal of a criminal trial, and have saved the community the expense and inconvenience of conducting that trial. You were originally indicted on one count of murder. When a fresh indictment alleging one count of manslaughter was filed, you pleaded guilty immediately. In the circumstances I am prepared to regard this as an early plea.

20 Despite your prior history, I regard your prospects for rehabilitation as reasonably good. You have a sound history of employment and you apparently held down responsible teaching positions during the four years you were at large after absconding. It does not appear that you offended in any way during that period. I have read transcripts of conversations you have had with your wife and younger children whilst you have been in custody and it is apparent that you are as devoted to your family as they are to you. I am told that you will return to them in Egypt as soon as is possible.

21 It has been put on your behalf that the circumstances of your imprisonment are more onerous than other mainstream prisoners. Assistant Commissioner Brendon Money gave evidence at your plea. You are currently an inmate in the Borrowdale Unit at Port Phillip Prison. That, apparently, is a more restrictive environment than mainstream prison but less so than the management or protection units. You were initially placed in a management unit, it seems, after an incident involving yourself , others and members of the Haddara family. You have been in some form of restrictive custody since about May 2010. Currently you are confined to your cell for eighteen hours per day. Mr Money described your activities within the unit as "definitely limited" in comparison to the mainstream. There is some prospect of transferring you to another mainstream unit, but Mr Money could not say when that would be. I accept that this is a factor that I ought to take into account in your favour. I consider that your detention since May 2010 has been considerably more burdensome that it would have been had you remained in the mainstream. I am unable to reach any firm conclusion as to how long you will remain in this more restrictive regime but it seems the authorities are of the view that a transfer to some form of mainstream regime is "not too far away".

22 I consider that there is another aspect to the extra burden that imprisonment creates for you. Your immediate family currently reside in Cairo. I am told, and accept, that they are living in reduced circumstances, in what is now a very volatile county. I have already remarked upon your obvious devotion to your family. I accept that your incarceration is more onerous, perhaps considerably so, than would be the case if your immediate family were able to visit you regularly.

23 Balancing these factors as best I can, I sentence you as follows.

On the count of manslaughter you are sentenced to 10 years imprisonment. I direct that you serve a minimum term of six years and six months imprisonment before becoming eligible for parole.

Pursuant to s 6AAA of the Sentencing Act 1991 I declare the sentence which I would have imposed but for your plea of guilty would have been 12 years imprisonment with a minimum term of eight years and three months before becoming eligible for parole.

I declare that 286 days pre-sentence detention not including today be reckoned as already served and such detention is to be noted on the court record.