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Biba v The King

Biba v The King

Case [2023] VSCA 122 22 May 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0160

DIEGO BIBA	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and KYROU JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2023
DATE OF JUDGMENT:	22 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 122
JUDGMENT APPEALED FROM:	[2022] VCC 858 (Judge Chettle)

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CRIMINAL LAW – Appeal – Sentence – Parity – Stalking and intimidating law enforcement officer – Applicant sentenced to 12 months plus 2 year CCO – Co-offenders sentenced to 2 year CCO, 12 month CCO and 12 month adjourned undertaking – Whether applicant’s sentence infringed parity principle – Differences between involvement of applicant and co-offenders in offending – Co-offenders significantly younger than applicant – Concession on applicant’s plea that combination sentence of imprisonment and CCO appropriate – Applicant’s moral culpability high – Applicant’s parity complaints not reasonably arguable – Applicant’s sentence at bottom end of available range – Sentence unable to be reduced to one which is manifestly inadequate – Application for leave to appeal refused.

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Counsel
Applicant:		Ms CA Boston and Mr JR Murphy
Respondent:		Ms R Harper
Solicitors
Applicant:	Seda Kilic & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
KYROU JA:

In August 2020, the applicant engaged in conduct that intimidated a serving police officer and conduct which involved stalking that officer. In April 2022, he pleaded guilty to one charge of stalking[1] (charge 1) and one charge of intimidation of a law enforcement officer[2] (charge 2).
[1]Contrary to s 21A of the Crimes Act 1958.
[2]Contrary to s 31D of the Crimes Act 1958.
Notwithstanding the abolition of the common law doctrine of joint criminal enterprise,[3] the prosecution case on the applicant’s plea was that he was part of a ‘joint criminal enterprise’ with three co-offenders who had engaged in a course of conduct which involved stalking and intimidating the officer. The course of conduct was committed with the intention of causing physical or mental harm to the officer, including arousing apprehension or fear in the officer for their safety.[4]
[3]By s 324C(2) of the Crimes Act 1958.
[4]When referring to the officer in these reasons, we will adopt the same pronoun as that used by the sentencing judge — noting that his Honour made a proceeding suppression order prohibiting the publication by any means of any matter which might directly or indirectly enable identification of the officer.
The applicant’s co-offenders were Sara Mohammed, Amiliano Odisho and Vanessa Shamou. Relevantly for present purposes, Mohammed pleaded guilty to one charge of intimidating a law enforcement officer, and Odisho and Shamou each pleaded guilty to one charge of stalking. Thus, Mohammed was a co-offender with the applicant in respect of charge 1; whereas Odisho and Shamou were co-offenders with the applicant in respect of charge 2.
On 4 February 2022, Mohammed was sentenced in the County Court as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Intimidate a law enforcement officer	10 years	12 month…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Biba v The King

Details

AGLC: Biba v The King [2023] VSCA 122
Case: [2023] VSCA 122
Decision Date: 22 May 2023

CaseChat Overview and Summary

The applicant, Biba, sought leave to appeal against their sentence following a conviction for stalking and intimidating a law enforcement officer. The appeal was heard by the High Court of Australia, which needed to determine if the applicant's sentence was appropriate under the parity principle, considering the sentences given to co-offenders. The applicant was sentenced to 12 months imprisonment and a 2-year community corrections order (CCO), while co-offenders received sentences of a 2-year CCO, a 12-month CCO, and a 12-month adjourned undertaking.

The court examined the differences in the roles of the applicant and co-offenders in the offending, noting that the applicant was the primary instigator and had a higher moral culpability. The court also considered the significant age differences between the applicant and co-offenders. While the applicant argued that their sentence was harsher than those of the co-offenders, the court found that the differences in their roles and involvement justified the sentencing disparity. The concession on the applicant's plea that a combination of imprisonment and a CCO was appropriate further supported the court's decision.

The High Court held that the applicant's complaints about parity were not reasonably arguable, and the sentence imposed was at the lower end of the available range. The court also found that reducing the sentence to one that was manifestly inadequate was not possible. Consequently, the application for leave to appeal was refused. The court's decision emphasised the importance of considering the individual circumstances and culpability of offenders when determining appropriate sentences.

Orders