Barbour v the Queen
[2013] VSCA 94
•3 May 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0192
| RIAD BARBOUR | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | ASHLEY, HARPER and TATE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 April 2013 | |
DATE OF JUDGMENT: | 3 May 2013 | |
MEDIUM NEUTRAL CITATION: | [2013] VSCA 94 | |
JUDGMENT APPEALED FROM: | DPP v Barbour [2012] VSC 335 (Macaulay J) | |
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CRIMINAL LAW – Sentence – Application for leave to appeal – One charge of murder and one charge of theft – Pleas of guilty – Offences committed while on parole for armed robbery – Prior convictions – Total effective sentence of 23 years’ imprisonment with a non-parole period of 19 years and six months – Whether sentencing judge erred in finding that the offender intended to steal and then murder when he entered the premises – Leave granted and appeal allowed – Appellant re-sentenced to a total effective sentence of 20 years’ imprisonment with a non-parole period of 18 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | C Marshall & Associates |
For the Respondent | Mr P B Kidd SC | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
I have had the advantage of reading in draft the reasons of Harper JA. I respectfully agree with his Honour that Ground 1 should succeed, and agree with his Honour’s explanation why that should be so. I agree also that the applicant should be re-sentenced as his Honour proposes. I add the following.
First, the sentencing facts, so far as they are presently relevant, were not agreed. In this case, this Court is as well-equipped as the sentencing judge to determine those facts; and, if a particular fact found by the judge below was not available, then so to conclude.
Second, although the judge did not specifically make a finding as to what the applicant intended to steal, the import of the sentencing remarks appears to be that the applicant’s intent was to steal the money which he eventually did. The analysis of that hypothesis by Harper JA shows why such a finding could not have been made to the criminal standard.
Third, in my opinion the judge was not sufficiently assisted by the prosecutor with respect to the issue of formation of intent. As Harper JA has pointed out, the Crown summary baldly asserted that ‘this was a planned murder done with the intention to kill or do really serious harm’. Only in reply did the prosecutor, in a broad-brush submission, contend that ‘he knew he couldn’t get away with this’ and ‘he wanted to dispose of the witness who would be able to reveal who he was’. The prosecutor did not identify what ‘this’ referred to. He indiscriminately mentioned both the cigarettes and the cash in the safe. It was not satisfactory that this elaboration of the Crown case should have been late-made, and incomplete.
Fourth, to conclude that the impugned finding could not have been made to the criminal standard leaves unresolved the question when the applicant formed the intention of killing Mr Nguyen, or of inflicting really serious injury upon him. There was definitely some evidence to support a finding that such an intent existed before the applicant entered the premises. But the evidence is far from being unequivocal. I
have approached the issue of re-sentence on the footing that the only finding which could safely be made to the criminal standard is that the applicant formed an intention to kill or inflict really serious injury shortly before he began his attack.
HARPER JA:
Introduction
The applicant, who was born in Syria on 11 May 1979, was on 10 August 2012 sentenced to be imprisoned for 22 years on one count of murder, and for 2 years on one count of theft, to each of which he had pleaded guilty. One year of the sentence for theft was cumulated on the sentence for murder, resulting in a total effective sentence of 23 years’ imprisonment. He was ordered to serve 19 years and 6 months before becoming eligible for parole.
The punishment imposed upon the applicant was, unquestionably, severe. It was for this reason that the applicant’s application for leave to appeal against sentence was on 5 February 2013 referred by a judge of this Court for hearing by a bench of three. At the same time, it is also clear that this was a brutal murder. Before turning to the proposed grounds of appeal, it is appropriate to outline the circumstances of the offending.
The background to the offending
Both offences were committed on 6 December 2011. The applicant was then on parole, having on 4 September 2008 been sentenced – on one count of armed robbery, one count of aggravated burglary and one count of possessing a drug of dependence – to a total effective sentence of five years’ imprisonment. Two years and six months of this sentence were ordered to be served before he became eligible for parole.
The applicant was released on parole on 19 July 2010. He was then aged 31. He did not make constructive use of his freedom. He worked as a concreter for a
time, but was unemployed when a cousin and her husband set him up in a milk bar in Bacchus Marsh. Although this was doubtless an act of considerable kindness, it was not one upon which the applicant was able to capitalise. Having come to Australia as a young child, he speaks fluent English; but he can neither read nor write in that language, and he has no training in, and perhaps limited aptitude for, running a business such as a convenience store.
After assuming responsibilities which he was unable to discharge, the applicant’s relationships with his wife and two young daughters deteriorated. His management of the milk bar became desultory. He preferred his bedroom to his work, and took to drugs – ice, amphetamines and steroids.
Cigarettes are an important part of the stock of the business of outlets such as convenience stores. Because the applicant’s business was in financial difficulty, he ran into debt with the wholesaler who supplied the milk bar with them. Supply from that source therefore ceased. Finding a new source was vital. So, in November 2011, the applicant turned to a man named Dzung Nguyen, who operated the Deer Park Post Office. Mr Nguyen enjoyed a franchise which enabled him to sell cigarettes at wholesale prices.
By 6 December 2011, the relationship between Mr Nguyen and the applicant was still in its infancy. But the applicant’s need was pressing. After making a number of purchases from Mr Nguyen, the applicant expressed an interest in opening an account with him. Discussions took place on 5 December 2011 and the following day, but then stalled. Mr Nguyen was apparently reluctant to supply cigarettes on credit. His caution was justified. Nevertheless, there is nothing in the evidence to suggest that, at that point, any animosity between the parties had come to the surface. The applicant later told Michael Bilyk, a psychologist to whom the applicant was referred for a pre-sentence report, that Mr Nguyen asked him to return to the post office later on 6 December so that discussions could continue.
The commission of the crimes
It was in these circumstances that, in the evening of 6 December, the applicant parked his car near Mr Nguyen’s post office. Staff had not yet departed after the end of the working day. The applicant waited for about 16 minutes until, by 6.24, all but Mr Nguyen had left. Carrying a truncheon and a box-cutter,[1] neither of which could be seen under his clothes, he approached the premises from which the post office was conducting its business. An external CCTV camera recorded the applicant acknowledging its presence and presumably revealing his identity to Mr Nguyen, who was inside, with a wave. It also records, shortly afterwards, what appears to be movement of the applicant’s arm, as if he were shaking the hand of whoever let him inside the building.
[1]The reference to a box cutter comes from the account given by the applicant to Michael Bilyk. It seems, however, that a more orthodox knife was used in the assault on Mr Nguyen: see [29] and [33], below.
A significant portion of what follows was recorded by internal CCTV cameras. They show scenes of complete normalcy followed by a frenzied, and apparently unprovoked but deadly, attack by the applicant on his smaller, unarmed victim after which the applicant moved casually around the dead man’s bloodied body, gathering whatever cash he could find. The conclusion is inescapable. This was an horrific killing followed not by the applicant’s surprise and horror at what he had done, but by the nonchalant theft of a considerable sum of money ($12,298.58).
A more detailed description of the evidence of the CCTV footage is warranted. It is also necessary, because this was not a case in which there was an agreed basis upon which the judge was to sentence the applicant.
The applicant’s entry into the post office at 6.24pm was followed by 21 minutes during which assailant and victim appear to be interacting normally. The CCTV footage is remarkably clear, and shows the victim busying himself with making up and electronically recording a consignment of cigarettes for the applicant. In general, the applicant looks calmly on, with occasional forays beyond the camera’s field of vision, but no sign of agitation. Mr Nguyen frequently bends over as he collects cartons of cigarettes from floor level and places them in an open container. For much of the 21 minutes, the two men are no more than a metre or two apart. Mr Nguyen is frequently closer to the applicant at 6.36pm and thereafter until the attack begins at 6.45pm, and is frequently during those minutes as vulnerable, as he is when the applicant lands the first blow. There is no hint of antagonism, let alone menace, during or before this period. When the attack begins, Mr Nguyen is in exactly the same position as that which he occupied on several occasions after 6.36pm. But the applicant then did nothing until 6.45pm. In other words, the applicant did not take advantage of the multiple opportunities which he had during this time to strike Mr Nguyen unawares.
There are moments during which aggressor and victim are clearly speaking to each other. These occur between 6.36pm and 6.44pm. There is, however, little if any eye contact, and no hint that anything of significance is said. The body language of the applicant remains relaxed – as it had been from the beginning. It is possible, nevertheless, that Mr Nguyen said or did something which triggered an extreme response. If so, the CCTV footage reveals nothing of it, and therefore gives no support to the account given by the applicant to Michael Bilyk. He told the psychologist that Mr Nguyen became angry because the applicant was attempting ‘to have [Mr Nguyen] sell a larger quantity of cigarettes’. In his report dated 25 July 2012, Mr Bilyk recorded the applicant’s account of what happened next:
Mr Barbour reported ... that this made him fearful and anxious as to what his victim may do given he had never seen this behaviour in his victim prior. Mr Barbour reported that as his victim bent down to obtain cigarettes to supply to him, Mr Barbour thought he was trying to locate a weapon. Mr Barbour acknowledged attacking his victim under this assumption, and in the context of being affected by ice, and ongoing steroid use. Mr Barbour reported intent to plead guilty to the offence, as reportedly captured on CCTV footage. Mr Barbour disclosed carrying a small baton type object concealed on his person, due to his concerns for his personal safety given involvement in substance trafficking. He reported the presence of a ‘box cutter’ additionally on his person, which he stated he always carried upon himself for convenience in his role in his own small business (opening boxes of stock, etc.). Mr Barbour explained the robbery as essentially opportunistic given the circumstances, and his disadvantaged financial state.
The account which the applicant gave to Mr Bilyk is all that is known about his version of events.
The applicant was arrested on 8 December 2011, detained in custody, and interviewed by the police. He declined to answer their questions, and gave no evidence at his plea hearing. On 12 December his parole was cancelled and he began serving the remaining two years and six months of his 2008 sentence.
The version of events given to Mr Bilyk is one upon which no reliance can be placed. The CCTV footage, which was not seen by Mr Bilyk, does not bear out the applicant’s story; and the psychologist’s report, although generally helpful, would have benefitted had he had the opportunity, available to the sentencing judge and to this Court, of viewing what the camera revealed. The revelations from that source are, necessarily, less than the whole truth; but while the CCTV footage is at several points open to differing interpretations, it is certainly an important part of the truth.
It is worth reiterating the point that nowhere does the CCTV footage confirm the applicant’s account. In particular, it gives no support to the notion that Mr Nguyen was at any time angry with the applicant. The soon-to-be victim exhibits no emotion at all, save that of a willingness (if such has emotional overtones) to satisfy an order for cigarettes. Nor does the footage add any credence to the proposition that the circumstances suddenly and dramatically changed when Mr Nguyen attempted, or seemed to be attempting, to locate a weapon. Immediately before he was attacked, the victim was doing no more – and no less – than executing movements in which he had been engaged for some time; and, as he did so, the applicant watched not only with no outward apprehension of danger, but also with no apparent cause for any such apprehension. Nothing in the evidence suggests the presence of any weapon which might have been available to Mr Nguyen.
At 6.45pm, the applicant’s nonchalance vanished, to be replaced by an attack of extraordinary violence. At 6.45pm, Mr Nguyen bent over so that his head, while remaining within easy reach, was turned away from the applicant. At the same moment, the applicant withdrew the truncheon from its place under his jacket and struck Mr Nguyen not so much on the back of his head as low down at the point at which the back of the head meets the top of the neck. If the blow was intended to knock the victim unconscious, the aim was poor. The effect was doubtless to cause intense pain, extreme surprise, and great fear – but not loss of consciousness. A conscious Mr Nguyen left no doubt that he was intent upon defending himself.
The odds, however, were stacked heavily against him. He was slight. The applicant, doubtless in part as a result of his ingestion of steroids, was of far sturdier build. And, in contrast to Mr Nguyen, the applicant was armed with both the truncheon and a knife. The two men fell to the ground, with the applicant’s body initially covering that of his victim. As Mr Nguyen strove desperately to escape, the applicant struggled with equal determination to overpower him with his weight and with his weapons. The scene bore a striking likeness to those which occur in the animal world, with the applicant as the predator and Mr Nguyen as his captured prey; and the analogy is strengthened by the applicant’s reaction to the killing. As with a predator in the wild, the applicant’s sympathies did not appear to be in any way aroused by what he had done. He displayed no shock at seeing a dead man, killed by his (the applicant’s) hand, lying covered in blood at his feet. On the contrary, as he looked at a scene the description of which as ‘horrific’ is entirely apt, he on several occasions moved around the bloodied body of his dead victim with what appears to be absolute indifference.
It was stab wounds to the neck with the knife which proved fatal. Even as his victim’s loss of blood diminished his ability to resist, however, the applicant continued to strike Mr Nguyen with the knife not only in his neck but in his back as well. By this time, Mr Nguyen’s capacity to cause any meaningful resistance, if it ever existed, had clearly vanished.
It was therefore entirely open to the sentencing judge to completely discount, as he did, the applicant’s description of his motive for what constituted a complete change in his conduct from customer to killer; from an apparently calm and composed purchaser of wholesale cigarettes, to a brutal aggressor not motivated by fear but by something utterly reprehensible.
On one view of the evidence, a satisfactory explanation of the applicant’s extraordinary conduct remains elusive. The sentencing judge, however, had no reasonable doubt. His Honour was satisfied to the criminal standard that the applicant ‘did attend the [Deer Park] Post Office on the night of 6 December with the intention of stealing from Mr Nguyen and covering [his] tracks by killing him.’[2] The sentence imposed upon the applicant reflected this conclusion.
[2]Reasons for sentence, [10].
The proposed grounds of appeal
The applicant contends that his Honour’s finding was not justified. Accordingly, his first proposed ground of appeal is that the sentencing judge fell into ‘[s]pecific error as to finding as a fact that the [applicant’s] intention was to steal and then murder.’ The second proposed ground is that the sentence was manifestly excessive. And the third complains that the minimum term of imprisonment which the applicant must serve before he becomes eligible for parole is too high in proportion to the head sentence.
Conclusions: the first proposed ground of appeal
After giving anxious consideration to the first proposed ground of appeal, I am of the opinion that it is made out. Some evidence supports the conclusion to which his Honour came. Other factors point the other way. It is the latter which, as it seems to me, introduce an overlay of reasonable doubt affecting the conclusion that, when he entered the post office, the applicant intended to steal and then kill Mr Nguyen – who could have identified him – in order to cover up the theft.
In his reasons for sentence, the sentencing judge explained how he decided upon the sentences he imposed. Addressing the applicant, he said:
You did not explain why you waited for staff to leave before approaching the building. Your explanation for carrying the truncheon and knife was, in my view, unconvincing. You said you carried the truncheon because you were accustomed to having it with you when you were transacting drug dealing, for your personal safety. That explanation does not account for its presence on this occasion. Further, you claimed you took with you a ‘box cutter’, because that is a tool of trade often used by you in your milk bar business. But, the injuries inflicted upon Mr Nguyen are not consistent with the use of a box cutter, some incisions being 15cm and 20cm deep. The CCTV shows you using two hands to fold back the knife blade.
According to the version you gave to Mr Bilyk, you believed that Mr Nguyen had become angry at you over the quantity of cigarettes you wanted, and you thought that, as he was bending down, he was searching for a weapon. The CCTV record completely contradicts this version. Not only does it deny the reality of what you claim to have perceived, but it puts the lie to the suggestion that you even had such a perception.
The recording shows the two of you engaging in a seemingly comfortable exchange, completely devoid of any appearance of tension or friction. Mr Nguyen is going back and forth to items on the bench reaching down to boxes on the floor, many times. For quite some time before you began striking him, you adopted a relaxed pose, leaning with your elbow on the safe near the door, and your action to remove your truncheon was slow, deliberate and calculated, waiting for the moment when Mr Nguyen was unguarded in front of you. I reject as palpably false the characterisation of the assault as being provoked by a spontaneous perception of danger.
Rejecting your version, of itself, does not mean that I must conclude that the murder was planned. But, I come to that conclusion because you knew Mr Nguyen would not give you credit to enable you to get the quantity of cigarettes you wanted; you waited until Mr Nguyen was alone before entering the building; you were armed with weapons without any adequate explanation for carrying them except that you intended to use them on Mr Nguyen; you were clearly known by Mr Nguyen and could be identified by him if you left him alive; and the assault upon him, as seen, appeared to be initiated with deliberate calm.[3]
[3]Reasons for sentence, [13]-[16].
There is much in these passages from his Honour’s reasons for sentence with which I agree. First, the wait until the departure of the staff is very hard (albeit, as a matter of speculation, not impossible) to equate with an innocent intent. Secondly, the CCTV footage does show the two men engaging in a seemingly comfortable exchange, completely devoid of any appearance of tension or friction. Thirdly, Mr Nguyen at no time displays any anger. Fourthly, the characterisation of the assault as being provoked by a spontaneous perception of danger is palpably false.
Although the sentencing judge did not refer to the behaviour exhibited by the applicant immediately after the murder, it seems to me that that is an important factor for at least two reasons, one of which supports his Honour’s conclusion. The applicant’s reaction of indifference to the fact that he had just committed a savage murder is, I think, indicative of someone who had already enured himself to the notion that he might commit such a crime.
I have difficulty, however, in being satisfied beyond reasonable doubt that the applicant ‘did attend at [Deer Park] on the night of 6 December with the intention of stealing from Mr Nguyen and covering [his] tracks by killing him.’ The applicant’s actions that night were, it seems to me, sufficiently irrational (or, at least on the available evidence, insufficiently explicable) as to foreclose the reaching, to the requisite standard of proof, of a conclusion that the applicant had, before he entered the post office, a settled intention to rob and murder. As the sentencing judge held, the applicant is ‘highly impulsive.’[4] For another thing, he did not cover his tracks. He made an attempt, which was totally ineffectual, to remove the CCTV footage. But he left his fingerprints in blood all over the crime scene, knowing as he must (had he given the matter rational thought) that as a convicted armed robber on parole, his fingerprints would enable the police to identify him with ease.
[4]Reasons for sentence, [39].
If it was the applicant’s design to rob and to kill, there is no logical reason why he waited for 21 minutes to complete the job when his intended victim was at his mercy on many occasions before the fatal assault began. Nor is the applicant’s explanation for having a truncheon and a box cutter in his possession in the post office unreasonable if one is not prepared to dismiss as ridiculous the applicant’s assertion that these two objects were always with him. Those who deal in drugs may decide that they and their weapons will be together as a matter of course, only to be separated if it is clearly safe to do so. That is more likely to be true of the truncheon than the box cutter, but it is possible that, for work reasons, the latter was sufficiently important to be an automatic inclusion in the applicant’s list of generally available equipment. (The relevance of the applicant’s reference to the box cutter is nevertheless not obvious, since it seems that a knife of a different kind was used in the assault.)
More particularly, his Honour’s finding is based upon a level of rationality in the applicant’s behaviour which is belied by other things he did that evening. He was clearly concerned that his supply of cigarettes was insufficient to satisfy his retail needs, yet after Mr Nguyen’s death he left them all in the post office. If he planned to kill with a knife, then he surely would have planned for the inevitability that blood would cover the scene. Indeed, the cartons, or some of them, were liberally smeared with blood, and with fingerprints. But the individual packs would probably not have been; and if they were not, they could have been sold. Instead of taking advantage of this, the applicant instead left easy clues of his identity.
If leaving the bloodied cartons was irrational, so was the failure to bring gloves with which to remove fingerprints by smudging all the remaining blood. The applicant removed cash, but any rational use to which it might have been put was superseded by an urge, to which the applicant succumbed, to squander it on gambling and drugs. None remained at the time of his arrest two days after the murder.
It is possible that the applicant’s principal motive for the visit was to obtain money, with cigarettes being secondary to that; but this theory runs into the difficulty that there is nothing to support it, save for what happened after Mr Nguyen was killed. There is, for example, no evidence that the applicant knew that any cash could be readily seized. All cash seems to have been taken from a safe, which happened to be both open and within easy reach. If the applicant was aware of this before he entered the post office, no evidence was before the Court to substantiate such a finding. It is at least as likely that, having suddenly noticed that the safe was open, the applicant impulsively decided to take advantage of this by removing Mr Nguyen as an impediment to his newly-formed design.
The applicant in his statement to Mr Bilyk said that he was under the influence of drugs at the time. This may or may not be true. It is, however, consistent with the conclusion that the applicant was captive to the notion that he was invulnerable, and so had no need to think through the consequences of his actions. The applicant also told Mr Bilyk that the theft of the money was ‘essentially opportunistic’. That explanation is in my opinion as open as the conclusion to which his Honour came.
It is of some significance that the Crown initially limited its submission to an assertion ‘that this was a planned murder done with the intention to kill or do really serious harm.’[5] Only in reply to the plea advanced by the applicant did the Crown argue that the applicant entered the post office with an intention of stealing something and then covering his tracks by the murder of the witness.
[5]Written summary of the prosecution opening on the plea, [14]. This passage was read during the course of the plea.
It is for these reasons that in my opinion leave to appeal should be granted on the first proposed ground of appeal. The appeal should be heard instanter and, because I am satisfied that a different sentence should be imposed, allowed.
The remaining proposed grounds
The first proposed ground having succeeded, and the applicant falling to be re-sentenced, it follows that there is no cause to consider whether the sentences imposed by his Honour were manifestly excessive, or whether the minimum term of imprisonment which his Honour imposed is appropriate.
The considerations relevant to the re-sentencing exercise.
The nature and gravity of the criminality involved in this murder places it towards the most serious of its kind. It was brutal, it was callous, and it was unprovoked.
Mr Nguyen was 48 at the time of his death. His murder has victimised his family as well as him. The sentencing judge correctly described the effect upon his family as being ‘utterly devastating.’[6] His Honour added that ‘Mr Nguyen’s children endured the horror of having to discover the bloodied body of their dead father.’[7]
[6]Reasons for sentence, [28].
[7]Ibid.
The applicant pleaded guilty. He is for this entitled to a reduction in the sentence which would otherwise be imposed; and that reduction should in my opinion contain an element to account not only for the utility of the plea, but also because it was, on the evidence and as his Honour found, accompanied by some remorse. This Court, in Phillips v The Queen,[8] warned against the too ready acceptance of protestations of remorse put before a sentencing judge not through the direct evidence of the person best placed to give it, the offender, but at second hand through a person to whom the offender has had every reason to protest his or her regret at what has happened, knowing that cross-examination on the point will not follow. But in this case, the report of Mr Bilyk contains something of a little more substance:
Mr Barbour was able to identify primary and secondary victims to his alleged offences without prompting, evidencing in addition his capacity for empathy, his capacity for reflection and insight. … Mr Barbour advised ‘I’m pleading guilty because I did it’ adding ‘… but I don’t think it would have been like this if I wasn’t on ice or around drugs’.
[8][2012] VSCA 140.
There is little else that can be said as mitigating the punishment which the applicant deserves. He has not had an easy life. He is easily angered and, as the sentencing judge found, highly impulsive. None of this amounts singularly or collectively to an excuse for murder.
The sentencing judge evidently increased the sentence which he would
otherwise have imposed on the basis that the killing was planned as part of a robbery. Once one takes that element out of the process of instinctive synthesis, one reaches, as it seems to me, a sentence of 19 years for murder. I agree with the sentencing judge that, on the count of theft, the appropriate sentence is imprisonment for two years, one year of which should be served concurrently with the sentence of 19 years for murder. The total effective sentence is therefore 20 years’ imprisonment. I would fix a period of 18 years before the applicant becomes eligible for parole.
Had the applicant not pleaded guilty, I would have sentenced him to a total effective sentence of 23 years’ imprisonment, with a non-parole period of 20 years and six months.
TATE JA:
For the reasons given by Harper JA, I agree that the appeal should be allowed. I also agree with the sentencing disposition proposed by his Honour.
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