Biba v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0090

ALBERT BIBA	Appellant
v
THE QUEEN	Respondent

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JUDGES:	McLEISH, T FORREST and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2022
DATE OF JUDGMENT:	22 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 168
JUDGMENT APPEALED FROM:	[2021] VSC 327 (Beale J)

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CRIMINAL LAW – Appeal – Sentence – Manslaughter – Total effective sentence 10 years with 7 years non-parole – Whether sentencing judge failed to take into account heightened utilitarian value of appellant’s guilty plea during pandemic – Guilty plea entered after trial commenced and new indictment filed – Whether utilitarian value of guilty plea varies according to trial venue – Whether s 6AAA statement indicative of error – Appeal dismissed – Worboyes v The Queen [2021] VSCA 169 considered.

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Counsel
Appellant:		Ms C Boston
Respondent:		Ms D Piekusis QC
Solicitors
Appellant:	Melasecca Kelly & Zayler
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
T FORREST JA
KENNEDY JA:

On 19 April 2021, the appellant’s trial for murder and cultivating a commercial quantity of cannabis commenced before a jury. On 23 April 2021, five days into the trial, a new indictment was filed and the appellant pleaded guilty to manslaughter.
Following a plea hearing, on 21 June 2021 the appellant was sentenced as follows:[1]
[1]R v Biba [2021] VSC 327 (Beale J) (‘Sentencing Remarks’).

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Manslaughter	20 years’ imprisonment	10 years	-
Total Effective Sentence:		10 years
Non-Parole Period:		7 years
Pre-sentence Detention Declared:		1,015 days
Section 6AAA Statement:		Total Effective Sentence: 11 years Non Parole-Period: 8 years
Other Relevant Orders: N/A.

In the notice of application for leave to appeal, the appellant advanced the following proposed grounds of appeal:
Ground One
The sentencing discretion miscarried because the sentencing judge found the applicant as having ‘limited’ remorse while finding the applicant’s prospects of rehabilitation as ‘good’ rather than ‘very good’ …
Ground Two
The sentencing judge erred in finding the applicant’s moral culpability to be ‘high’ …
Ground Three
The sentence imposed on the charge of manslaughter was manifestly excessive.[2]
[2]Emphasis in original.
During oral argument before the Court of Appeal on 24 February 2022, leave was granted for the appellant to add the following additional ground:
Ground Four
The learned sentencing judge erred in failing to take into account the heightened utilitarian value of the applicant’s guilty plea on account of the disruption to the Courts caused by Covid-19.
On 4 March 2022, the appellant was refused leave to appeal on proposed grounds 1 to 3, but granted leave in respect of ground 4.[3] This appeal proceeds on ground 4 only.
[3]Biba v The Queen [2022] VSCA 25.
Before considering the merits of the appeal, it is necessary to set out a brief summary of the offending. The factual basis for the plea was agreed in the Amended Summary of Prosecution Opening. This summary is extracted below:
The charge relates to the death of 28 year old Andrew TOUMAYAN (the deceased), who was shot by [the appellant], as he was leaving via the front gate of premises situated at 30 Wantirna Road, Ringwood. It was at this address that a sophisticated hydroponic set up [sic] had been established for the cultivation of cannabis. Mr TOUMAYAN had attended at the premises with a friend, for the purposes of stealing the cannabis growing therein.
The [appellant’s] conduct, in attending at the premises with a loaded firearm, which he discharged into the chest of TOUMAYAN at the gate, constitutes an unlawful and dangerous act.
Whilst the [appellant] knew of the cannabis crop at 30 Wantirna Road, Ringwood, it is not alleged that he was involved in its cultivation.
…
The [appellant], Albert BIBA, was born Ermal BIBA on 12 March 1988 in Fierz Tropoje, Albania. He arrived in Australia in August 2013 under a false Greek passport in the name Pantelis Lomakin. He has three siblings but only his brother Diego BIBA resides in Australia. At the time of his arrest the [appellant] was on a Bridging Visa, pending the outcome of his Partner [V]isa application.
…
THE OFFENDING
Charge 1 — Manslaughter
Late on 16 April 2018, the deceased contacted a friend, Frank VIGNETO[,] and asked him to come over to his house. VIGNETO did so and waited for TOUMAYAN outside. The two then travelled in TOUMAYAN’s black Holden station wagon to 30 Wantirna Road, Ringwood (‘Ringwood premises’). VIGNETO understood that they were going to the property to steal marijuana.
When they arrived, the deceased parked in nearby Ellison Street and the two men walked to the property. VIGNETO was carrying a backpack containing an iron bar and secateurs which the deceased had produced from the back of his car.
TOUMAYAN and VIGNETO entered the Ringwood premises via the front gate, which they closed behind them. Lights were on inside the house and the deceased knocked a few times on the front door. When nobody answered, he opened the metal security door with the iron bar. The internal door was unlocked, and they entered the house.
The entry of TOUMAYAN and VIGNETO triggered a silent ‘Chuango’ model G5W 3G/WCDMA alarm … that was linked to the front door and a motion sensor in the entry corridor of the house. Between 12:45 am [and]

1:05 am, this alarm series sent a series of SMS[s] and made a series of phone calls to a pre-programmed mobile service … (‘465 service’); a number registered in the name of Hasan ACHOUR, and used by Armando DELIA, an associate of the accused.
At 12:46:23, DELIA using the 465 service contacted the [appellant] on [a mobile] service registered in the name of Bao TO [(‘531 service’)]. At the time of this call, the [appellant] was in Box Hill, which is where two of the phones he was using, including the 531 service, were located.
In response to the call from DELIA regarding the activation of the alarm, the [appellant] travelled from Box Hill to the Ringwood premises in the Toyota Prado [that he was using at the time]. CCTV from various locations along Whitehorse Road/Maroondah Highway and Wantirna Road, between the accused’s Box Hill address and the Ringwood premises, show[s] the four-wheel drive travelling towards Ringwood between 12:50 and 12:59 am.
…
CCTV footage from 12:58 am shows the Prado [(being driven by the appellant)] travel past the Ringwood premises, slowing as it did so. The Prado then turned into Barkley Street and just after 1:00 am … the [appellant] can be seen running from Barkley Street … into Wantirna Road in the direction of the Ringwood premises. At 1:00:26, the accused can be seen approaching the fence to the premises.
Meanwhile, TOUMAYAN and VIGNETO looked around the house, where they saw a large number of marijuana plants in four rooms. None of the plants appeared to have flowering ‘head’ and so they did not take any and left the house. They walked inside the garage, which was empty except for rubbish, before walking towards the front gate to leave.
As TOUMAYAN stepped out of the front gate he was immediately shot by the [appellant], who was carrying a loaded firearm, with the .22 calibre bullet lodging in the deceased’s left chest. TOUMAYAN cried out and ran along the street, having turned to his right out of the gate. The [appellant] ran from the left from the gate and into nearby Arlington Street. CCTV did not capture the shooting but resumed almost immediately after it occurred at 1:00:44 am. VIGNETO jumped the fence into a neighbouring property and ran out onto Wantirna Road and then Barkley Street. He saw TOUMAYAN on the street, and ran after him. At some point while he was in Barkley Street, VIGNETO threw the backpack and tools away, which were subsequently located by Police.
TOUMAYAN continued running until eventually he collapsed in the driveway of 11 Barkley Street saying he couldn’t breathe. VIGNETO called out for help. He went and sat behind TOUMAYAN[,] propping him against him. He continued calling for help and then got up and began banging on doors of nearby houses, in order to seek help, before returning to TOUMAYAN where he checked for a pulse, and tried to perform mouth to mouth, pumping his chest.[4]
[4]Citations omitted.
Mr Toumayan died at the scene.
Mr Delia picked up the appellant at 1:07 am from New Street, Ringwood.
Police executed a search warrant at the Ringwood premises later that day and located a hydroponic cannabis crop setup. (The appellant was not charged with involvement in the cultivation of the cannabis at the property on the new indictment.)
On 31 August 2018, the appellant was arrested. He gave a ‘no comment’ interview and was remanded in custody.
Given the nature of ground 4, it is unnecessary to set out the judge’s reasons at length. However, the judge noted that the offending fell at the high end of the spectrum of seriousness and involved a high level of moral culpability.[5] The judge also included reference to the Covid-19 restrictions the appellant experienced while on remand, and made specific reference to the delay of three years from charge to trial — which was largely due to the pandemic.[6]
[5]Sentencing Remarks, [10], [12].
[6]Ibid [38], [39], [53].
At the plea hearing, the appellant’s counsel had contended that there was an ‘especially high’ utilitarian value to the plea of guilty as a result of it being made during the Covid-19 pandemic.[7]
[7]Defence counsel cited DPP v Bourke [2020] VSC 130, [32] (Jane Dixon J) (‘Bourke’) and DPP v Zafiratos [2020] VCC 377, [42]–[43] (Judge Cahill) (‘Zafiratos’) in support of this proposition.
The judge found that the appellant’s remorse was generally limited, and also made the following statement:
Yours was a late plea. While it will still attract a significant discount because of its utilitarian benefits — had the trial ran its course it was anticipated to take about four weeks — I am not satisfied that it was a plea motivated by strong remorse as opposed to self-interest.[8]
[8]Sentencing Remarks, [41].
One week after the appellant was sentenced in the Supreme Court, the Court of Appeal handed down Worboyes v The Queen,[9] in which Priest, Kaye and T Forrest JJA held that a plea of guilty during the Covid-19 pandemic has greater utilitarian value to the administration of justice than a plea of guilty entered prior to the pandemic:
A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.[10]
[9][2021] VSCA 169 (‘Worboyes’).
[10]Ibid [39].

This appeal

The appellant referred to defence counsel’s written submissions tendered on the plea arguing that there was an especially high utilitarian benefit to the appellant’s guilty plea due to the impact on the courts caused by the Covid-19 pandemic. The appellant submitted that the sentencing judge did not refer to this submission in his sentencing remarks and did not state, explicitly or implicitly, that he had taken the matter into account. The absence of any reference to the added utilitarian value of the guilty plea during the pandemic was said to betoken ‘an omission to take the factor into account at all’.[11] The appellant accepted that a sentencing judge is not required to make reference to every factor which forms part of the instinctive synthesis, but submitted that it would be expected that this particular matter would have been mentioned by the sentencing judge, because of:
•the relative newness of the submission;
•the importance of a tangible discount for the guilty plea in order to encourage other defendants to plead guilty during the pandemic; and
•the s 6AAA declaration suggesting that a very modest discount had been given for the guilty plea, if one at all.
[11]Counsel cited R v Koumis (2008) 18 VR 434, 440 [64] (Redlich and Kellam JJA and Osborn AJA); [2008] VSCA 84.
The ‘Worboyes factor’ was said to have significant application because the guilty plea saved three weeks of Court, prosecution and defence counsel time at a period when it was very difficult to obtain counsel from either side of the bar table.
In oral submissions, counsel for the appellant submitted that although the plea was entered after the trial commenced, it was not a late plea in the true sense of the word. The appellant had been charged with murder and cultivating a drug of dependence in not less than a commercial quantity (the latter carrying a maximum penalty of

25 years). It was accepted that if the guilty plea had been negotiated and entered at an earlier stage, the principle in Worboyes could have been given greater weight. However, the appellant pleaded guilty when the Crown offered a plea resolution, withdrawing the cultivation charge and reducing the murder charge to manslaughter. Counsel cited Cameron v The Queen[12] in which Gaudron, Gummow and Callinan JJ quoted with approval Ipp J’s comments in Atholwood v The Queen:[13]
It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted. Regard should be had to the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him. During the period that the prosecution maintains counts that are ultimately abandoned, there is a strong incentive for a person who recognises his guilt in other counts … to persist in a not guilty plea to all counts. In such circumstances it should not be assumed, mechanically, that the offender has pleaded guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity.
[12](2002) 209 CLR 339 (‘Cameron’).
[13](1999) 109 A Crim R 464, 468, quoted in Cameron (2002) 209 CLR 339, 345 [21].
Further, counsel submitted that the defence relied upon the guilty plea as a mitigating factor and the Crown did not quibble with that submission at the plea hearing.
In oral submissions, counsel drew our attention to R v Koumis, in which this Court stated:[14]
While reasons for sentence need not be extensive, one would usually expect the reasons to include certain matters. Without being prescriptive or exhaustive, one would generally expect the reasons to include the sentencing judge’s findings as to the circumstances of the offence and any circumstances which the judge regards as aggravating or mitigating. Reference will normally be made to the impact of the offence upon the victims. The personal circumstances of the offender which bear materially upon the sentence should be identified. It is also desirable that conclusions reached by the sentencing judge as to the primary arguments advanced by the parties, particularly if they are in controversy, should be apparent from the reasons. That is not to suggest that the sentencing judge is obliged to address every argument advanced on the plea.[15] But the primary factors that have influenced the instinctive synthesis should be exposed during the course of the sentencing remarks. Where the sentencing remarks are deficient as to such material matters, transparency in the process is denied and interested parties are left to ‘speculate’ about the reasoning process.[16]
The absence of reasons on matters relevant to the sentencing disposition will not of itself vitiate the sentencing decision or provide a ground for review of the sentence. Where the reasons are silent as to a matter, it will be necessary to determine whether it was material to the exercise of the sentencing discretion.[17] If it was, the sentencing judge was obliged to take it into account. The conclusion that the sentencing judge has failed to do so or to give it sufficient weight, will then commonly depend upon whether it can be said that a markedly different sentence would have followed, had the matter been taken into account.[18] It is in that context that it is sometimes said that ‘the failure to give reasons betokens an omission to take the factor into account at all.’[19]
[14](2008) 18 VR 434, 439 [63]–[64] (Redlich and Kellam JJA and Osborn AJA) (citations in original); [2008] VSCA 84.
[15]R v Giakas [1988] VR 973.
[16]DPP v Josefski (2005) 13 VR 85, 91 [30] (Maxwell P).
[17]R v Beary (2004) 11 VR 151, 157–8 (Callaway JA).
[18]
[19]R v Nikodjevic [2004] VSCA 222, [19] (Ormiston JA).
The appellant noted that the sentencing judge imposed a sentence of 10 years’ imprisonment with a non-parole period of seven years, and declared that but for the plea of guilty, he would have imposed a sentence of 11 years with eight years non-parole. The s 6AAA sentence was therefore said to indicate that a discount of only one year or nine per cent of the head sentence, and one year or 12.5 per cent of the non-parole period, was given for the plea of guilty. The appellant submitted that this supported the conclusions that the judge:
(a)did not factor the plea of guilty into the instinctive synthesis; and
(b)did not take into account the heightened utility of the plea during the pandemic.
The s 6AAA statement was said to indicate underlying error[20] by indicating that the weight given to the guilty plea was extremely low despite the following relevant matters:
(a)until his plea, the appellant had faced the more serious charge of murder;
(b)the appellant never denied the fact that he was the shooter; rather he had not admitted that fact in the context of being charged with murder;
(c)the guilty plea would have had significant utilitarian value even if the pandemic was not impacting the courts, because the trial had been expected to consume about four weeks; and
(d)that utilitarian value was of even greater importance during the Covid-19 pandemic.
[20]Counsel cited Lunt v The Queen [2011] VSCA 56, [15] (Nettle JA, Neave JA agreeing at [93], Tate JA agreeing at [94]).
In the event the sentencing discretion is re-opened, the appellant argued that the following factors, in combination, have made prison extraordinarily burdensome for him:
•He has the additional burden of facing deportation from Australia at the conclusion of his prison sentence.
•He has post-traumatic stress disorder.
•Due to the Covid-19 pandemic, he has so far spent 369 days in 24-hour lockdown with no phone calls and no access to educational courses or books.
•He has very few family or friends in Australia who can visit him.
•The delay of three years.
•In the circumstances of his arrest, he was attacked by a police dog and required to undergo surgery. He is still affected mentally and physically by this incident.
•He broke his ankle in September 2021 and spent three months in a plaster cast.
Finally, counsel submitted that the appellant has no prior convictions and has been a model prisoner in custody.

Respondent’s submissions

The respondent accepted that the late plea of guilty did have some utilitarian benefit because witnesses were no longer required for the remaining three weeks set aside for the trial and court resources were freed. However, the appellant’s plea was entered after the trial had commenced in the Supreme Court and therefore could not be said to have had a high utilitarian benefit as set out in Worboyes.

The respondent also submitted that:
(a)the Supreme Court has not been affected by a ‘drastic and intimidating backlog’ in the same way as other courts in Victoria, meaning that the Worboyes principle had less application to a plea of guilty that avoids a trial in that Court;
(b)the sentencing judge gave appropriate weight to the guilty plea in circumstances where the trial had commenced, a jury was empanelled and witnesses had been called;
(c)the judge took into account the impact of Covid-19 restrictions upon the appellant in custody and the resulting delay in the matter coming to trial; and
(d)the offending fell at the high end of seriousness for manslaughter. The appellant had acquired, possessed and used a firearm to protect illegal activity, namely the cultivation of cannabis. This called for stern punishment.

Consideration

First, we are not attracted to the respondent’s submission that some distinction should be made between the Supreme Court and other courts. Consistency in sentencing is the aspiration of every criminal court in this state. A ‘Worboyes discount’, with a malleable weight, dependent on Court venue, is hardly likely to assist this aspiration of consistency. Each sentencing exercise will be individually tailored to the particular circumstances of the case, however the modest allowance resulting from an enhanced utilitarian value attached to a guilty plea in times of great court stress, cannot be applied with too fine a focus. The consequences would be highly undesirable. Would a Magistrates’ Court plea, all other things being equal, attract a greater or lesser sentencing benefit than in the County Court? Would regional courts (where the backlogs may not be so pressing) be treated differently from a Worboyes perspective than their metropolitan counterparts? Such distinctions are not consistent with the reasoning in Worboyes, which noted the extreme strain of the pandemic-related lockdowns and backlogs on the criminal justice system in Victoria as a whole.[21] If the Worboyes discount is to be a sentencing factor than it must be applied consistently; modestly but perceptibly.
[21][2021] VSCA 169, [35].
We also did not find the appellant’s reliance on the s 6AAA statement to allege error to be helpful.[22] A s 6AAA statement is not part of the sentence actually imposed. This is well-established.[23] As Maxwell P, Kaye and Emerton JJA stated in Staples v The Queen:[24]
… the formulation by a sentencing judge of the s 6AAA declaration is, by its very nature, an artificial exercise. The determination of a sentence in a particular case is the product of a process of instinctive synthesis. In that process, the judge does not fix the sentence by adding to, and subtracting from, a starting point, periods of time which the judge attributes to particular sentencing factors. Such a process would be antithetical to, and inconsistent with, the long established and fundamental principles as to the manner in which sentences are determined in this State.[25]
[22]Donnes v The Queen [2022] VSCA 132, [54] (Walker JA).
[23]See, eg Saab v The Queen [2012] VSCA 165, [59]–[62] (Buchanan, Weinberg and Mandie JJA); Staples v The Queen [2021] VSCA 307, [86] (Maxwell P, Kaye and Emerton JJA); Dunford v The Queen [2021] VSCA 304, [40]–[42] (Beach JA); Duale v The Queen [2022] VSCA 80, [34] (Kennedy JA).
[24][2021] VSCA 307, [86] (citations in original).
[25]See, eg, Saab v The Queen [2012] VSCA 165, [58]–[59] (Buchanan, Weinberg and Mandie JJA); Zogheib v The Queen [2015] VSCA 344, [60]–[64] (Kaye JA, Maxwell P agreeing at [1], Santamaria JA agreeing at [12]); Maybus v The Queen [2017] VSCA 125, [52] (Osborn and Kaye JJA); Kalofolias v The Queen [2017] VSCA 308, [44] (Maxwell P, Beach and McLeish JJA); Blango v The Queen [2018] VSCA 210, [59] (Whelan and Kyrou JJA).
Next, whilst the appellant’s sentence was imposed shortly before this Court handed down judgment in Worboyes, it does not follow that the judge failed to take account of an ‘enhanced utilitarian benefit’ to a guilty plea as a consequence of the sentence being imposed during the pandemic. In written submissions filed with the Court for the purposes of the plea hearing the judge was addressed at some length about the appellant’s then-conditions of incarceration, the impacts of Covid-19 and the isolation caused by it. In those submissions it was put on the appellant’s behalf that:
Although a trial had already commenced … there is an especially high utilitarian benefit to the plea of guilty given the disruption to Courts caused by Covid-19 and the length and complexity of the proceeding.
The cases of Bourke[26] and Zafiratos[27] were footnoted at this juncture. Both of these cases discussed the notion of a high utilitarian benefit arising from a guilty plea while the courts’ operations are disrupted as a result of the pandemic. Thus the overall effect of Worboyes was before the judge, as expressed in the predecessor cases of Bourke and Zafiratos.
[26][2020] VSC 130, [32] (Jane Dixon J).
[27][2020] VCC 377, [42]–[43] (Judge Cahill).
Returning, then, to the judge’s reasons, he expressly acknowledged that the plea would attract a ‘significant discount’ because of its ‘utilitarian benefits.’ As well as the express reference to ‘utilitarian benefits’ we also note:
•The submissions made on the plea that we have set out in [28] above;
•That the judge was clearly alive to, and made express reference to, the pandemic in other parts of his sentencing remarks;
•The ‘significant discount’ articulated by the judge notwithstanding:
(a)the lateness of the plea; and
(b)the fact that prosecution, police and court resources were all adversely impacted by the lateness of the plea.
•That the overall sentence was modest indeed for a very serious example of the offence of manslaughter. The appellant acquired, possessed and used a firearm to cause death in the course of providing protection to a criminal enterprise.
The observations in Cameron upon which the appellant relied do not bear on the extent of the utilitarian benefit of a guilty plea and therefore do not assist his argument. They principally concern remorse (and, perhaps, willingness to facilitate the course of justice) in circumstances where there is an explanation for a ‘late’ plea. The lateness of the plea in the present case, however it might be explained or justified, served substantially to reduce the utilitarian benefit it would otherwise have had.
We are not satisfied that the judge failed to take into account the utilitarian benefit consequent upon the appellant’s plea in the time of a global pandemic, and the appeal against sentence must be dismissed.
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House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); R v Okutgen (1982)

8 A Crim R 262.

[2022] VSCA 168

22 August 2022