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Biba v The Queen

Biba v The Queen

Case [2022] VSCA 25 4 March 2022

Rehabilitation Prospects

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0090

ALBERT BIBA	Applicant
v
THE QUEEN	Respondent

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JUDGE:	T FORREST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 February 2022
DATE OF JUDGMENT:	4 March 2022 (First revision (4 March 2022): paras [30]–[33])
MEDIUM NEUTRAL CITATION	[2022] VSCA 25
JUDGMENT APPEALED FROM:	[2021] VSC 327 (Beale J)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Manslaughter – Common law – Sentence of 10 years’ imprisonment with non-parole period of seven years – Manifest excess – Effect of assessment of remorse on assessment of rehabilitation prospects – Whether judge erred in finding rehabilitation prospects ‘good’ rather than ‘very good’ while finding ‘limited’ remorse – Plea of guilty not necessarily demonstrative of remorse – Little from objective facts from which to infer remorse – High moral culpability – Enhanced utilitarian benefit of guilty plea during COVID-19 pandemic – Applicant may have been entitled to enhanced utilitarian benefit despite sentence preceding Worboyes – DPP v Bourke [2021] VSC 130 considered, Barbaro v The Queen [2012] VSCA 288, Worboyes v The Queen [2021] VSCA 169 applied – Leave to appeal granted on ground 4 only.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Boston	Melasecca Kelly & Zayler
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA:

The applicant pleaded guilty in the Supreme Court to a charge of manslaughter. On 21 June 2021 he was sentenced as follows:

Charge on indictment

Offence

Maximum

Sentence

Cumulation

1

Manslaughter (common law)

20 years’ imprisonment

10 years

-

Total effective sentence

10 years

Non-parole period

7 years

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991

1,015 days

6AAA statement

11 years’ imprisonment with a non-parole period of 8 years

Other relevant orders

N/A

In this application for leave to appeal against sentence the applicant advances three proposed grounds of appeal. They are:

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.[1]
[1]Emphasis in original.

Factual background

The factual basis for the plea was agreed in the Amended Summary of Prosecution Opening (‘Amended SPO’). Relevantly, it reads:

The charge relates to the death of 28 year old Andrew TOUMAYAN (the deceased), who was shot by the offender, 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 offender’s conduct, in attending at the premises with a loaded firearm, which…

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 Queen

Details

AGLC: Biba v The Queen [2022] VSCA 25
Case: [2022] VSCA 25
Decision Date: 4 March 2022 (First revision (4 March 2022): paras [30]–[33])

CaseChat Overview and Summary

In the matter of Biba v The Queen, the Court was presented with an application for leave to appeal against a sentence imposed for manslaughter. The appellant, Biba, had been convicted of manslaughter and sentenced to ten years’ imprisonment, with a non-parole period of seven years. The core legal issues in this appeal pertained to the appropriateness of the sentence imposed, specifically whether it was manifestly excessive, and the judge's assessment of the appellant's prospects for rehabilitation and the extent of remorse demonstrated.

The court had to consider whether the judge erred in assessing the appellant's prospects for rehabilitation as "good" rather than "very good" while simultaneously finding that the appellant had shown only "limited" remorse. The court highlighted that a plea of guilty does not necessarily indicate remorse, and there were few objective facts from which to infer significant remorse. Additionally, the court assessed the appellant's high moral culpability and the enhanced utilitarian benefit of the guilty plea, particularly during the COVID-19 pandemic. The court examined relevant case law, including DPP v Bourke [2021] VSC 130, Barbaro v The Queen [2012] VSCA 288, and Worboyes v The Queen [2021] VSCA 169, to determine whether the sentence was manifestly excessive and whether the judge had appropriately considered the factors relevant to sentencing.

The court concluded that while the sentence was not manifestly excessive overall, the assessment of the appellant's rehabilitation prospects and remorse could have been more thoroughly examined. The court granted leave to appeal on ground 4, focusing on the discrepancy between the assessments of remorse and rehabilitation prospects. This decision underscores the need for a coherent and consistent approach to these factors in sentencing for manslaughter.

The court ordered that leave to appeal be granted on ground 4 only, allowing the appellant to challenge the sentence on the specific basis of the judge's assessment of rehabilitation prospects and remorse. This decision provides clarity on the importance of aligning assessments of remorse and rehabilitation prospects in sentencing and highlights the need for careful consideration of these factors in future cases.

Orders