CRIMINAL LAW - Sentence - Total effective sentence of ten years- Whether sentence manifestly excessive - Leave to appeal refused.

1 For the reasons given by Robson AJA and the additional reasons of Priest JA I would refuse leave to appeal.

2 I have had the advantage of reading the reasons of Robson AJA in draft, and agree that the application for leave to appeal against sentence should be refused.

3 By the time that the applicant came to be sentenced for manslaughter, he had completed the previous sentence relating to the attack on his former wife. Strictly, the application of the principle of totality was inapposite in circumstances where the offences on the applicant's wife were disparate in time and circumstances to the manslaughter; where the applicant was not being sentenced for a series of offences; and where the applicant was not undergoing a previous sentence at the time that the sentence for manslaughter was imposed.[1] Despite this, in my view, a fair reading of the sentencing judge's remarks indicates that in a broad and practical way he took into account the fact that the applicant had completed a sentence of imprisonment shortly before he imposed the sentence for manslaughter, and moderated the sentence that he passed in recognition of that fact. Thus, although the sentencing judge's reference to s 16C of the Sentencing Act 1991 is a little curious - since the section could have had no part to play in the fixing of the sentence for manslaughter - in my opinion it would not have influenced the judge in a manner adverse to the applicant's interests.

4 With respect to the complaint that the sentence passed is manifestly excessive, counsel for the applicant did not seek to rely on the report of Dr Anthony Cidoni by way of fresh evidence. Thus the Court was required to assess whether the sentence imposed for manslaughter was manifestly excessive having regard to what was before the sentencing judge. Synthesising all of the factors relevant to the exercise of

the sentencing discretion which confronted his Honour, in my opinion it cannot be said that the head sentence or non-parole period are outside the range of those open to the judge in the sound exercise of the sentencing discretion.

5 For these, and the other reasons canvassed by Robson AJA, I agree that the application for leave to appeal should be refused.

6 On 4 November 2010, the applicant (now aged 43) pleaded guilty to manslaughter. Following a plea hearing on 4 November 2010, 15 December 2010 and 4 February 2011, the applicant was sentenced as follows:[2]

[s 5 of the Crimes Act 1958]

6AAA Declaration: 12 years' imprisonment with a minimum term of 8 years and 3 months.

7 An extension of time within which to seek leave to appeal was listed before a Full Bench on 14 June 2013. The extension was granted. The matter was listed before this court for hearing of the leave application and, if leave was granted, hearing of the appeal instanter.

(1) The total effective sentence and the non-parole period infringed the principle of totality, when regard is had to the applicant having served the entire sentence of the six years' imprisonment by the County Court on 20 September 2000.

(2) The total effective sentence of ten years' imprisonment and the non-parole period of six years, six months' imprisonment are each manifestly excessive.

9 On Sunday, 13 June 2004, Rashad (Richard) Haddara (the deceased) was found in the rear seat of his red Holden Commodore in a car park off Spring Street, Thomastown. The car was seen there between 7.00 pm and 8.00 pm and a call to 000 made. Police arrived at the scene at approximately 11.30 pm, whereupon Haddara was observed dead, with a single stab wound to the left chest.

10 The applicant and the deceased had met while they were both prisoners in the Melbourne Assessment Prison. In August 2003, the deceased was released from prison. Shortly after, the applicant contacted the deceased, as he wanted the deceased to obtain a television, sound system and DVD player to replace those which had been stolen from the applicant's wife's home.

11 The applicant arranged for approximately $2,000 to be provided to the deceased, by his brother Zain Tiba, for the electrical items. The deceased did not supply the electrical goods to the applicant's wife, nor did he return the money to Zain Tiba. The deceased and his partner, Helen Shillingford, instead used the money to purchase heroin.

12 The applicant was released from prison in May 2004. In June 2004, the applicant contacted the deceased by telephone and asked for a meeting. Two arrangements to meet fell through, until Sunday, 13 June 2004, being the date of the offending.

13 On this day, the applicant telephoned the deceased and arrangements were made to meet. The deceased left his home in Poole Street, Deer Park, in his red Holden Commodore and returned with the applicant soon after. The two men appeared to be on good terms. At approximately 4.30 pm, they drove Ms Shillingford to Footscray Hospital so she could visit her grandmother.

14 The applicant and the deceased then travelled together to the home of the applicant's brother, Zain Tiba, in Broadmeadows. Whilst there, the applicant borrowed $100 from his brother. Zain Tiba described everything as affable at this time. The applicant told him that they were going to get the electrical goods the deceased had promised.

15 At around 6.30pm, the deceased returned to Poole Street with the applicant. He told Ms Shillingford he would take the applicant home and return. At the time of the offending, the applicant was residing at Gilbert Street, Reservoir, with his wife. When the applicant arrived at his house with the deceased, the deceased was stabbed in the chest.

16 At approximately 7.00pm, the applicant arrived at the home of his brother, Zain Tiba, in a panicked state. The applicant was driving the deceased's red Holden Commodore. The deceased was lying on the back seat and appeared to Zain Tiba to be dead. Zain Tiba stated that the applicant told him that he had gotten into an argument with the deceased over the money and that he had accidentally stabbed him. Zain Tiba insisted that they take the deceased to hospital.

17 The applicant drove along Mahoneys Road towards the Northern Hospital in Epping. He then turned into Spring Street, where he had an argument with his brother. The applicant said that he was not going back to gaol over this, and left the scene.

18 Between 9.00 pm and 10.00 pm that same night, the applicant, his wife and children attended the home of his brother, Mohammed Tiba, in Tullamarine. The applicant asked Mohammed whether his family could stay the night.

19 At 8.39 am on Monday, 14 June 2004, the applicant purchased an airfare from Singapore Airways, using Mohammed Tiba's passport and identity. He departed Australia for Singapore at 10.10 am that same day.

20 On Monday, 25 July 2005, two telephone conversations took place between Detective Iddles and the applicant, who was at that time in Lebanon. The applicant said to Detective Iddles that the killing was not premeditated.

21 On 28 October 2008, Victoria Police were notified of the applicant's arrest in the Solomon Islands, from which he was extradited to Australia on 10 December 2008. He was then charged with murder.

22 On 14 December 2009, the applicant was due to face committal proceedings in this matter in the Melbourne Magistrates' Court. The matter did not proceed as a material prosecution witness, Zain Tiba, had left Australia on 24 October 2009 and was unavailable to give evidence. The committal was adjourned to 10 May 2010.

23 On 13 April 2010, police executed a warrant issued on 1 April 2013 to apprehend Zain Tiba. Zain Tiba was arrested at Melbourne Airport, where he was present with his wife and two children. The family was about to travel to Cairo.

24 Following two short adjournments, the trial came on for hearing before the sentencing judge on 4 November 2010. On that day, the Crown accepted a plea of manslaughter and the plea hearing commenced.

25 The basis of manslaughter was unlawful and dangerous act. The learned sentencing judge noted that the explanations offered by the applicant to Detective Iddles and by his counsel were inconsistent with the plea of guilty. His Honour sentenced the applicant on the following 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 [the applicant's] brother Zain.

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

(c) There was no intention on [the applicant's] part to kill or cause really serious injury. Haddara died as a result of [the applicant's] unlawful and dangerous act.

(d) The stabbing occurred at [the applicant's] house.

(e) The stabbing occurred spontaneously in the context of the earlier mentioned argument.[3]

Ground 1 - infringement of totality principles

26 On 20 September 2000, the applicant was sentenced by Judge Barnett in the County Court to six years' imprisonment with a non-parole period of four years and six months. This was in respect of counts of intentionally causing serious injury and false imprisonment, where the victim was the applicant's former wife. The learned trial judge was provided with the reasons for sentence of his Honour Judge Barnett. Judge Barnett found that the beating by the applicant of his wife was delivered over the course of some time, at different locations, involving punches, kicking, choking and hitting the victim with a cane. Judge Barnett described that offending as 'as cruel and ferocious as anyone could imagine.'

27 In May 2004, the applicant was released on parole, about a month before the offence of stabbing Haddara.

28 After the applicant fled Australia on 14 June 2004, he lived with his wife and children in Lebanon and then Egypt. The applicant and his wife worked as English teachers in this period. On 28 October 2008, the applicant was arrested (on a charge of the murder of Haddara) on arrival in the Solomon Islands. He has been in custody since that time.

29 After being detained in harsh circumstances in Honiara for four to five weeks, the applicant was extradited to Australia. His parole was revoked on 10 December 2008. Between that date and 5 June 2010, the applicant served the entire balance of his parole period, that is, approximately 19 months.

30 As mentioned above, the applicant pleaded guilty to manslaughter on 4 November 2010 and was sentenced on 4 February 2011.

31 The applicant contends that by reason of serving the entire six years of the County Court sentence, the applicant may be required to serve a total sentence for the two matters of 16 years' imprisonment. The applicant says that at a minimum, the applicant will spend a total minimum of 12½ years in prison. The applicant submits that such an outcome violates the totality principle. The applicant says that when regard is had to the factors indicated in support of the second ground of appeal, the total period of imprisonment far exceeds the level of the applicant's total criminality.

32 The applicant contends that on the plea, the significance of the applicant having served the cancelled parole period in full was the subject of some submissions. The applicant says that the prosecutor contended that, whilst offending on parole was an 'aggravating circumstance of the offending', his Honour was advised to take into account the principle of totality.

33 The applicant's counsel also urged his Honour to take account of the totality principle, arguing that it would really amount to 'double punishment' if significant allowance was not made for that period, given that it was the instant offence that led to the parole being revoked. In discussion, his Honour made it clear that he accepted the submissions of the prosecutor and the defence counsel. His Honour referred to the taking account of 'a year or so'.[4]

34 In sentencing, the learned sentencing judge stated that he had mitigated the sentence in 'a moderate way' on account of the principle of totality.[5]

35 At the hearing of the application, the unsustainably of the totality submission was raised by the court, as the principle of totality was not enlivened where the applicant had completed the prior sentence before he was sentenced on the later conviction. In Morgan v The Queen,[6] the Court of Appeal accepted that the relevant circumstances where the totality principle would arise as:

(a) when a judge is sentencing an accused for multiple offences, and also where a judge is sentencing an accused for an offence where the accused is already serving another sentence;

(b) where multiple offences have been committed in one state, the principle of totality should be applied even where the offences are unconnected in time or nature.

36 As the previous sentence imposed by Judge Barnett had been completed, when the applicant came to be sentenced for manslaughter, s 16(3B) of the Sentencing Act 1991 was not enlivened.

37 On the hearing of the application, the Court accepted, however, that the fact that the applicant had finished a previous term of imprisonment shortly before sentencing would be a relevant factor for the sentencing judge to take into account.

38 Leave to appeal on this ground should be refused.

39 The applicant concedes that he pleaded guilty to a very serious offence. The applicant also concedes that a substantial term of imprisonment was called for. The applicant contends, however, that given that the offence occurred spontaneously in the context of an argument and that it was confined to a single stab wound, the sentence is (when all other factors are taken into account) manifestly excessive.

40 The applicant contends that excessive weight was given to the prior conviction. The applicant argues that the learned sentencing judge was entitled to regard the 2000 prior conviction as relevant, given that it was a crime of violence. The applicant contends, however, that a potential explanation for the severity of the sentence is that too much weight had been accorded to the prior conviction.

41 The applicant submits that whereas the prior matter involved sustained and intentional violence inflicted on a partner, this case was very different: the stabbing occurred spontaneously, and there was no intention on the part of the applicant to cause really serious injury. The applicant says that death was caused by a single stab wound to the chest in the context of an argument. The learned sentencing judge took these matters into account.[7]

42 The applicant relies on the fact that the learned sentencing judge found important mitigating factors, including that the applicant pleaded guilty to the offence at an early stage (given that he was originally charged with murder but pleaded guilty to manslaughter 'immediately' the fresh indictment was filed) and that the applicant had lived for six years with the spectre of a murder charge (where the deceased was a member of a feared family) hanging over his head, despite having offered in 2005 to return to Australia voluntarily if the charge was manslaughter (rather than murder).

43 During the plea hearing, the applicant interrupted his counsel's submissions to say that when he spoke to Detective Iddles on the phone from Lebanon, Detective Iddles said to him that he would be charged with murder. The applicant said that if Detective Iddles had told him that he would be charged with manslaughter he would have come to Australia voluntarily. The applicant said that this 'was the object of the whole conversation.'[8] The learned sentencing judge said that he thought it read that way too. His Honour said that the applicant was originally indicted on one count of murder, but that when a fresh indictment alleging one count of manslaughter was filed the applicant pleaded guilty immediately. His Honour said that he was prepared to regard this as an early plea.[9]

44 The applicant submitted to the sentencing judge that he was suffering an increased burden of imprisonment by reason of having been in some form of restrictive custody since May 2010, in particular being confined to his cell for 18 hours a day.

45 All these matters were taken into account by the learned trial judge. His Honour said:

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 than 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'.[10]

46 The applicant also contended that he was suffering an added burden of imprisonment because his immediate family were residing in Cairo and were unable to visit him. The learned judge took this factor into account:

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.[11]

47 The applicant says that the sentencing judge found that he had 'reasonably good' prospects of rehabilitation, given his sound history of employment, including responsible teaching positions in the four years he was at large following the offending, and the applicant not offending during the period of being at large, and the applicant's devotion to and support of his family. The applicant also says that the learned sentencing judge found that he was entitled to some mitigation of his sentence on account of totality.

48 The applicant contends that he should be treated as having made an early plea in 2005 when he telephoned Detective Ron Iddles of the Homicide Squad. He submitted that Haddara was stabbed once, that it was not premeditated, it occurred at the applicant's home, and that 'it was more like involuntary manslaughter' than murder.

49 The applicant submits that the combined force of these mitigating factors were undervalued in the instinctive synthesis engaged in by the sentencing judge.

50 At the hearing, counsel for the applicant relied on an incident that occurred in prison involving an attack on the applicant's brother and the current psychological state of the applicant as described in a report of Dr Anthony Cidoni of 2 September 2013. Counsel submitted that this report would be relevant if the sentencing discretion was reopened. I will return to these submissions later.

51 The Crown contends that the sentence imposed by the sentencing judge was not outside the range properly available. The Crown says that even on the applicant's version of events, the applicant stabbed an unarmed man in the course of an argument over $2,000.

52 The Crown says that the applicant has shown no remorse for the act, that the applicant's explanations were self-serving, and that the learned judge properly noted that they were inconsistent with the plea of guilty.

53 The Crown says that the unlawful and dangerous act which was the basis of the manslaughter (insofar as any finding could be made as to how the killing occurred) was a stab wound to the chest of the victim. The Crown says that the applicant did not seek medical assistance for the victim; rather, that he drove to his brother's house and then abandoned both his brother and the body in a car park. The Crown points to the fact that the applicant fled the country using another brother's passport, and only returned after arrest and extradition.

54 The Crown says that the offending was aggravated by the fact of it having been committed while the applicant was on parole.

55 The Crown contends that the delay between the commission of the offence and sentencing was largely caused by the applicant's flight from the jurisdiction. The Crown argues that the mitigation arising from the passage of time between the offending and the sentence (whether regard is relevant to the applicant's rehabilitation or the stress of having these matters hanging over his head for that time) is greatly reduced by reason of the explanation for the delay.

56 The Crown submits that the prior conviction from 2000 was clearly relevant to the matter, aside from the question of totality and parole. As mentioned earlier, the Crown points to the fact that in the 2000 matter, the applicant administered a vicious beating to his wife in retaliation for what the applicant perceived to be misconduct. The Crown concedes that it was submitted on the applicant's behalf in that plea that the offending was out of character.

57 The Crown says that in the present matter, the applicant submitted that he had benefited from the courses he did whilst in custody and utilised that sentence to rehabilitate himself. Nevertheless, just after his release, the parolee stabbed the victim in the course of an argument.

58 The Crown submits that the learned sentencing judge was entitled to consider the prior conviction in assessing the need for specific deterrence. The Crown

58 contends that each of the matters raised by the applicant in his written was considered and taken into account by the learned sentencing judge.

59 In my view, all the matters that the applicant has raised in his submission that the sentence was manifestly excessive were properly addressed by the sentencing judge. The applicant did not contend otherwise. It was not contended that a sentence of 10 years for manslaughter was excessive, given the previous conviction involving serious violence and, in particular, the absence of any adequate explanation by the applicant as to how the deceased was stabbed in the chest, and the lack of any remorse on behalf of the applicant. The sentencing judge was entitled to have regard to the prior sentence in sentencing the applicant.[12]

60 The learned sentencing judge made some allowance for the totality principle, although the principle was not enlivened.[13]

61 In my opinion, very little weight was required to be given to the fact that for five years the applicant had a murder charge hanging over his head. The applicant fled the country to avoid being punished for killing Mr Haddara.

62 In my opinion, the relatively low non-parole period of 6 years and 6 months in view of a 10 year sentence may well have reflected the fact that the applicant had recently completed serving a lengthy jail term for the savage beating of his wife. There is nothing to support, nor was it suggested, that the learned sentencing judge did not also take the same matter into account in fixing the head sentence.[14]

63 After considering all the matters ably submitted on behalf of the applicant, in my opinion the sentence imposed was not manifestly excessive. Accordingly, I would dismiss the application for leave to appeal.

64 The applicant submitted that if the sentencing discretion was re-opened then the applicant would rely on the conditions of his incarceration. In particular, he is still held in the Acacia Unit of Port Phillip Prison.

65 As I have said, the learned sentencing judge had noted that there was some prospect of transferring the applicant to another mainstream unit, but Assistant Commissioner Money could not say when that would be. I have already quoted above the observations of the learned sentencing judge. The court raised with counsel for the applicant whether the applicant wished to make a fresh evidence application to re-open the sentencing. Counsel indicated that the applicant did not wish to do so, and pointed out that the sentencing judge had sentenced on the basis that he was unable to reach any firm conclusion as to how long the applicant would remain in the more restrictive regime.

66 The report of Dr Anthony Cidoni did raise matters of some concern about the restrictive regime in which the applicant is imprisoned. I would expect that the relevant authorities have had regard to this report in determining the appropriate conditions for the applicant's future incarceration.

[1] Morgan v R [2013] VSCA 33.

[2] See R v Bassam Tiba [2011] VSC 13 (Reasons), [23].

[3] R v Tiba [2013] VSC 13 ('Reasons'), [11].

[4] Transcript of Proceedings, R v Tiba (Supreme Court of Victoria, S CR 2010 0089, T Forrest J, 4 November 2010) ('Plea Transcript'), 27.

[6] [2013] VSCA 33.

[12] See Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).

[14] See generally R v Bolton and Barker [1998] 1 VR 692.