Director of Public Prosecutions v Barbour (Sentence)
[2012] VSC 335
•10 August 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. S CR 2012 0038
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RIAD BARBOUR |
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August 2012 | |
DATE OF SENTENCE: | 10 August 2012 | |
CASE MAY BE CITED AS: | DPP v Barbour (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 335 | |
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CRIMINAL LAW – Sentence – Murder (one count) – Theft (one count) – Pleas of guilty – Offences committed while on parole for armed robbery – Section 16 (3B) Sentencing Act 1999 (Vic) – Sentence of 22 years imprisonment for murder and 2 years for theft – Total effective sentence after cumulation of 23 years with a non-parole period of 19.5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford SC | Office of Public Prosecutions |
| For the Accused | Mr C Pearson | C Marshall & Associates |
HIS HONOUR:
Introduction
Riad Barbour, you have pleaded guilty to one count of murder, and one count of theft contrary to s 74 of the Crimes Act 1958. On 6 December 2011 you murdered Dzung Nguyen at Deer Park in Victoria. At the same time you stole $12,298 from him.
The specific details of your offences are chillingly simple, graphically depicted on closed circuit television footage obtained from the premises where they occurred. Your crimes are made worse by the fact that, at the time, you were on parole for a sentence of five years’ imprisonment for committing armed robbery and aggravated burglary.
The offences
In June of 2011 you were offered the opportunity to operate a milk bar business. You took up that opportunity. Part of that business involved the sale of cigarettes. Initially, you sourced your cigarettes at wholesale prices from a business in Coburg but, as time went by, you ran into debt with the supplier, and supply was cut off. You owed the supplier $3,000. Your business was running low on cigarette stock so you looked for new sources of cigarettes. In November 2011 you commenced to buy cigarettes at wholesale prices from the Deer Park Post Office which was operated by your victim, Dzung Nguyen.
After you had made a number of purchases from him, you discussed with Mr Nguyen and his wife the prospect of setting up an account for the purchase of cigarettes. You had that discussion with Mr Nguyen either on 5 December 2011, or the morning of 6 December 2011. Because you only wanted to pay for half of the order, your application for setting up an account was not proceeded with on that day.
Late on the afternoon of 6 December 2011, you again attended the Deer Park Post Office. After parking your car, you waited for about 16 minutes while it could be seen that employees had all left the premises before approaching the rear door of the business and rang the bell. When you stood at the rear door you obviously noticed the external CCTV camera because you waved at it. You were armed with a wooden truncheon and a knife hidden by your clothing.
Mr Nguyen let you into the premises. CCTV footage, taken from inside the office at the Post Office premises, shows you and Mr Nguyen gathering cigarette cartons and placing them into boxes. Mr Nguyen was scanning the cartons into a computer. After you had been there about twenty minutes, while Mr Nguyen was bending down, you produced the wooden truncheon and commenced striking Mr Nguyen with it to the head. An intense struggle then followed. It lasted a number of minutes. Variously, over that time, you hit Mr Nguyen with the truncheon, punched him, struck him with a stapler you grabbed off the office bench, held him in a headlock and, finally, produced a knife and stabbed him a number of times, first to the body and then to the neck.
Although somewhat clumsy and inept, your killing of Mr Nguyen was an act of savagery. Over the several minutes during which you assaulted Mr Nguyen leading ultimately to his death, his experience of terror and physical pain does not bear imagination. Mr Nguyen died from the stab wounds to the neck which you inflicted.
After killing Mr Nguyen, you then removed the DVD recorder from where it was located at the premises, evidently believing – mistakenly as it turned out – that you were removing the CCTV evidence of your deeds. Before you left, you opened the safe in the office and removed $12,298.58 in cash.
You were arrested by the police at your house in Bacchus Marsh two days later, interviewed and charged. You made no admissions; rather you answered ‘no comment’ to any question put to you about Mr Nguyen’s death. Between the time of killing Mr Nguyen, and being arrested, you apparently spent all of the money you stole, chiefly on gambling and buying drugs.
Nature and gravity of the offence
The Crown contends that this was a planned killing. On your behalf, it was argued that it is not open to me to conclude, beyond reasonable doubt, that it was so. But, I am satisfied, on that standard of proof, that you did attend the Post Office on the night of 6 December with the intention of stealing from Mr Nguyen, and covering your tracks by killing him.
In my view that is the only reasonable conclusion open on the evidence. You gave your version of events to a psychologist, Mr Michael Bilyk, whose report dated 25 July 2012 was tendered on your behalf on the plea. Mr Bilyk saw you for approximately 3 hours on 18 July 2012. He had various materials available to him, but the CCTV recording was not amongst them.
You told Mr Bilyk that you had attended the Post Office earlier in the day of the murder and had been refused credit by Mr Nguyen for the purchase of more cigarettes. But, you said that Mr Nguyen suggested that you return later that day to discuss matters. That account does not accord with what was recalled by Mr Nguyen’s wife or another employee whose statements are contained in the depositions.
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 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 reaching 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.
In those circumstances, I regard your offending as being of a grievous and serious nature.
Culpability and degree of responsibility
This was an offence for which you are entirely responsible. You carried it out alone. It cannot be said that you were encouraged or influenced by any other person. But, it was argued on your behalf that your moral culpability for these crimes needs to be viewed against the wider background of your life, and the immediate circumstances leading to them.
You were 32 years old last December when you killed Mr Nguyen. Born in Syria, you emigrated to Australia when you were young, raised in St Albans and educated only to Year 7. You are, essentially, unable to read or write in English, although you speak the language adequately. Your literacy deficit has impacted upon your employment skills and capacity.
As a child you were a victim of the violence of your alcoholic father, having sustained severe injuries at his hand. At 16 you returned to Syria with your family for five years, the last two undertaking national service in the Syrian army. In that role, you witnessed a fellow soldier being shot and killed on patrol; and you were also shot and injured in the back and leg.
Back in Australia, aged 21, having married in Syria at 20, you then had two children, and engaged in various forms of employment. In your mid 20’s you began taking illicit drugs, mainly amphetamines. In the immediate build up to the assault, you had been under considerable stress as a result of your failing milk bar business, and your inability to repay a large amount of money lent to you by your cousin, and to provide for your family. You again resorted to drug abuse – amphetamines, and also steroids for body building. You withdrew from your family; stopped working in the business; engaged in drug dealing and gambling; argued a lot with your wife; and, a month or so before your offences, you told your cousin at a funeral for a family member that you wished you were the one who had died.
Mr Bilyk raises the possibility of you having unresolved post traumatic stress, following your time in the Syrian army, without making such a diagnosis. But, he says that whilst you reported that any symptoms of such stress had subsided since being back in Australia, your experiences, including being the victim of family violence, lead to the potential of you being particularly ‘threat sensitive’. He went on to add that your amphetamine and steroid abuse, in combination with stressors, was likely to have had an exacerbating effect on your behaviour, ‘especially given reports [from you] of perceptual disturbance, increased paranoia, anger, aggression and hypervigilance’.
Although I do not accept the account that you were reacting to an immediate perception of threat when you commenced assaulting Mr Nguyen, I do accept that you were generally at a very low ebb, with feelings of paranoia, anger and aggression exacerbated by the effect of the drugs you were taking. To an extent, this combination of circumstances might go some way to explain how you came to launch an unprovoked and vicious attack upon another human being when, in general terms, such violence had not been part of your make up beforehand.
When I say that ‘in general terms’ it had not been part of your previous make up, I need now to turn to your past convictions. Before doing so, it should not be forgotten that you also stole a considerable sum of money from Mr Nguyen. Given your desperate financial circumstances at the time, owing a lot of money and with a failing business, it is easy to surmise that a significant motivating factor in your conduct was simply to rob Mr Nguyen. In this context, the character of your previous convictions assumes real potency as aggravating factors.
In April 2008 you were convicted and fined for obtaining financial advantage by deception, apparently emanating from the retention of excess social security monies. More significantly, in September 2008 you were convicted and sentenced to a total of five years in prison on four charges; one each of armed robbery, aggravated burglary, false imprisonment and possessing a drug of dependence. You had robbed a gaming venue, using an imitation pistol, holding up staff, and stealing around $100,000. Your brother, a security guard at the venue, was involved in this planned crime, and he is still serving his sentence because of it.
You were released on parole on 19 July 2010, having served two and a half years of your five year sentence. Thus, you re-offended in this murder/theft within 18 months. The fact that you resorted to the most violent of crimes, to obtain money, whilst on parole for armed robbery, cannot be seen any other way than as an extremely concerning aggravating feature of your conduct.
Impact on victims
Mr Nguyen was 48 years old when you killed him, survived by his wife of 22 years, and two children aged 18 and 15. He had come to Australia as a refugee, aged 13; was educated here, worked for Telstra for 18 years, then took over running a post office business in 2006.
As may be expected, the impact of your crimes upon the family of Mr Nguyen has been, and will continue to be, absolutely devastating. Whilst it is bad enough that you have brought a violent and premature end to another person’s life, you have also consigned another group of people, his family and friends, to an interminable period of grief and agony. Tragically, Mr Nguyen’s children endured the horror of having to discover the bloodied body of their dead father.
Mr Nguyen has also left behind his father, five sisters, and various nieces and nephews. Through victim impact statements each speaks individually of the effect that Mr Nguyen’s murder has had upon them. Needless to say, they each speak of enormous grief, resulting in physical symptoms, which are likely to persist for a long time. In reality, none of them will ever recover fully.
Harrowing though it is, it is necessary to hear of and comprehend the full dimension of your crime. Relatively short moments of callous and violent behaviour on your part have not only ended one human life but have permanently injured the lives of many others. This is a consequence to which I must and do pay regard when considering the appropriate sentence.
Guilty plea
The law says that a plea of guilty to a charge entitles an offender to a more lenient sentence than one which would have been imposed had the offender not pleaded guilty. The extent of the discount upon sentence depends on a variety of factors. At the least, a plea of guilty saves the community the expense of a trial and spares victims and witnesses the ordeal of the trial process. For that alone, an offender is entitled to some reduction upon the sentence which would otherwise be imposed. But, beyond that, a plea of guilty may also be indicative of, or accompanied by, genuine remorse. Such genuine remorse, along with true acceptance of responsibility, often signals good prospects for rehabilitation or, at least, less need to specifically deter the offender from similar offending.
Evidence of remorse and acceptance of responsibility is best seen in conduct: such as an immediate acknowledgment of wrong doing, assistance given to the victim, surrendering to police, making admissions when interviewed, pleading guilty at the earliest opportunity, and statements of empathy for the victims. Statements of remorse alone, especially without some of that conduct, are naturally treated with caution.
In your case, you left the scene without assisting Mr Nguyen; you tried to cover up your crime by attempting to remove the CCTV record; you had to be arrested; you did not admit your involvement when interviewed; but you did indicate your intention to plead guilty in the Supreme Court at the first opportunity. Mr Bilyk reports your statements of shame and remorse; also, your understanding of the impact of your actions upon Mr Nguyen’s family, and indeed the impact on Mr Nguyen himself before he died. You have expressed some empathy for the victims, and have wanted to apologise, while recognising the limits upon attempting to do so.
The case against you was overwhelming, principally because of the CCTV evidence. You indicated your intention to plead guilty after your legal team saw the CCTV and gave you legal advice.
In these circumstances, I conclude that you have demonstrated some remorse, although the strength of that remorse cannot be accepted unreservedly, particularly because the account of the offence you gave to Mr Bilyk suggests you have not fully taken responsibility for your crime.
In addition to the discount to which you are entitled for pleading guilty because of its utility in the public interest, I consider it is appropriate to make some further allowance for the extent to which your remorse offers some promise for the fulfilment of some of the other sentencing objectives.
Previous character
You are now 33 years of age, with two daughters aged 9 and 4 who, you correctly concede, will spend their formative teenage years without you.
The absence of any criminal convictions before your late 20’s suggests that you had managed to deal with certain disadvantages in your upbringing without resorting to offending. Perhaps those disadvantages, namely your father’s violence, your limited educational skills and your experience in the Syrian Army, left their mark upon you. But your hope is that you will use your time in jail positively and productively, and that you will emerge from it a better person than when you entered. That is an aim to be encouraged.
Mr Bilyk administered a range of psychological testing. It is apparent that you have a tendency to be easily angered and you are highly impulsive. You have never had the benefit of professional assistance to help you deal with the scars of your past. He considers you would benefit from consistent engagement in structured and organised activities, and treatment aimed at improving self-management skills, dealing with substance abuse and mood regulation, and coping with stress. It is hoped that, with your positive aims during prison, you might avail yourself of as many programs as you can along these lines. Mr Pearson, correctly in my view, disavowed any reliance upon the principles of R v Verdins[1] in your case.
[1]R v Verdins (2007) 16 VR 269.
Of concern, however is Mr Bilyk’s assessment of your prospect of re-offending. He assesses that prospect as moderate, extending to a high risk if you again experience an environment of financial and employment difficulties, association with people orientated towards crime, and the abuse of drugs. It is plainly in your interests, the interests of your wife and children, and the community’s interest, that you use your time from now on to build the personal resources needed to be able to avoid or guard against that kind of environment in the future.
Conclusions and sentence
Even so, the nature and gravity of your crime, while on parole, calls for a significant sentence to meet the objectives of punishment, denunciation and to deter you against resorting to violence and theft in the future. Such a sentence will reflect the allowance for your plea of guilty, as I have discussed.
I need now to say something specifically about the theft charge, to which you also pleaded guilty. It is not merely an inconsequential addition to the count of murder, although the horror of the murder does overshadow it. It seems likely that it was your desire to get money that motivated your crime, as it had in relation to the armed robbery for which you were still serving a sentence when you again resorted to theft to solve your financial problems. And, the sum of money stolen, entirely spent, was not insignificant. In that light, although in one sense it forms part of a single episode and I take care not to punish you twice for the one offence, it is a particularly bad case of theft for which you should be separately and distinctly punished.
The maximum penalty for murder is life imprisonment and for theft it is 10 years’ imprisonment.
On your behalf it is suggested that a greater than usual period should be allowed for parole, given the desirability that you receive the kind of guidance and supervision recommended by Mr Bilyk. Although it is very difficult to predict so far into the future what your receptivity to such guidance will be, I consider that your present positive attitude should receive as much encouragement as reasonably possible, balanced against other sentencing objectives.
Mr Pearson concedes, on your behalf, that, because of s 16(3B) of the Sentencing Act, any sentence I pass upon you will be cumulative upon the balance of the sentence you must serve for having breached your parole, unless I direct otherwise. I will not direct otherwise, nor is it submitted that I should. But, as he submits, I must still have regard, in sentencing you now, to the principle of totality given the aggregate sentences you will have to serve. I do have regard to that principle.
Since being arrested by police on 8 December 2011 for these crimes, you have been in custody. But, you were breached by the Parole Board on 12 December 2011 and began serving the remainder of your 2008 sentence – two years and six months – on that day. So, since being arrested, apart from four days to be reckoned as pre-sentence detention for these crimes, you have been serving out that sentence. Having served a further 242 days since 12 December 2011, you now have approximately 22 months of your 2008 sentence left to serve as at today’s date. The sentence I am about to pass on you must be served cumulatively on – or on top of – that period of imprisonment.
Taking all these matters into account:
•On the count of murder, you are sentenced to a term of imprisonment of 22 years;
•On the count of theft, you are sentenced to a term of imprisonment of 2 years, 1 year of that term to be served concurrently with the term of imprisonment on the count of murder;
•The total effective sentence is therefore 23 years;
•I fix a period of 19.5 years as the period during which you are not eligible to be released on parole.
But for your plea of guilty to each count, I would have sentenced you to a total effective sentence of 27 years with a non-parole period of 24 years.
Pursuant to s 18 of the Sentencing Act 1991 I declare that you have served 4 days of pre-sentence detention up to and including today’s date which number of days are to be taken into account as time served under the sentence I have imposed.