Director of Public Prosecutions v Biba
[2022] VCC 858
•10 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01704
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DIEGO BIBA |
---
JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 and 29 April 2022 |
DATE OF SENTENCE: | 10 June 2022 |
CASE MAY BE CITED AS: | DPP v Biba |
MEDIUM NEUTRAL CITATION: | [2022] VCC 858 |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Papas with | Ms D. Shivakumar |
For the Accused | Mr S. Andrianakis | Mr S. Andrianakis |
HIS HONOUR:
1Diego Biba, you have pleaded guilty to one charge of stalking and one charge of intimidation of a law enforcement officer. In addition, you pleaded guilty to the summary offence of committing an indictable offence whilst on bail.
2The facts of your offending are set out in Exhibit A, the summary of prosecution opening on plea. I was informed by your counsel that I could treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence and I make it clear to you that I sentence you on the basis of that document alone and not on the basis of other allegations and circumstances referred to in the depositions.
3In very brief compass you stalked and intimidated a law enforcement officer in August 2020. You discovered their home address and their personal mobile phone number, you caused others to telephone the law enforcement officer and to attend at their home. You were on bail for a contested summary offence at the time of your offending. The offences that you have pleaded guilty to both have minimum penalty of 10 years' imprisonment and the summary of a maximum penalty of three months' imprisonment.
4Your victim made a victim impact statement, Exhibit B on the plea. They have been significantly emotionally affected by your conduct. They felt unsafe in their own home, felt compelled to sell it. Naturally they are anxious, their sleep is disrupted and they feel anger and despair. I take the contents of the victim impact statement into account in sentencing you.
5In sentencing you I must give effect to principles of general deterrence and specific deterrence. I must express the community's denunciation of your conduct and ensure just punishment for your crimes. I accept that there is a significant overlap between the two identification offences to which you have pleaded guilty and that it is appropriate in this case to impose an aggregate sentence for the two indictable charges.
6I must also have regard to current sentencing practices. I have considered the statistics available in stalking cases to assist with the determination of the current sentencing practices. There are no statistics or precedents to assist with sentencing practices for the offence of intimidation of a law enforcement officer. Neither the prosecution nor your counsel could assist in that regard. I have been assisted by the stalking precedents that were provided to me and have had regard to the maximum penalties prescribed by Parliament for the s31D Crimes Act offence.
7Your offending in my view is an unusual stalking offence. Most precedents involve domestic disharmony and violence. You violated the victims’ privacy and their personal security. I regard your moral culpability in this regard as high.
8Your personal history is set out in the psychological report of Mathew Staios. You were born in April 1986 in Albania. You were the eldest of five children. As a child you experienced the instability created by war and civil unrest and you experienced violence and trauma. You have experienced some psychological distress as a result. I was provided with references that indicate that you were politically active and at risk in Albania because of your involvement with the Democratic Party.
9You left Albania in 2012, crossing to Greece and migrating to Australia in 2013. You obtained a bridging visa from the Department of Immigration in 2018.
10You met your wife in 2013; however, as I understand it, that relationship has been somewhat unstable since your arrest in 2020.
11You are an intelligent man. You obtained a master's degree in Finance in Albania. You worked predominantly in hospitality and as a truck driver in Australia.
12The psychological report tendered indicates that there are some obsessive, narcissistic and avoidant aspects to your personality. Combined with your childhood insecurities, some understanding of your offending can be developed.
13Your childhood experiences in Albania have led you to developing an inherent distrust of authority figures and this appears to have helped you become obsessed with the victim due to their profession.
14I take into account in your favour in sentencing you, your pleas of guilty. Because of the unusual history of this case and its passage through the legal process I accept that your pleas of guilty should be treated as early pleas of guilty. They were entered at the committal. You are entitled to a reduction in sentence to reflect those early pleas of guilty. You have spared the community the time and expense of a criminal trial and the witnesses the trauma of giving evidence at that trial.
15The COVID-19 pandemic has significantly damaged the justice process and your pleas of guilty have a greater utilitarian benefit. Similarly, COVID-19 has made your time in custody more onerous for you because of lockdowns, isolation, loss of programs and visits all as a result of the COVID pandemic.
16You fall to be sentenced as a man of otherwise good character who has no prior convictions.
17Your counsel Mr Sheales filed written submissions, in relation to what he submitted were the appropriate sentences for your offending. I have considered those submissions in arriving at what I believe is the proper sentence in this case. Mr Sheales properly conceded that a gaol sentence was the only available sentence in this case. The issue of course was the length of such a sentence.
18I am of the view that it is appropriate to impose a combination sentence: a term of imprisonment and a community corrections order for your offending. Mr Sheales again conceded such a combination sentence was appropriate. I have had full regard to the principles surrounding community corrections orders as set out in R v Boulton. I have had you assessed for suitability to undergo a community corrections order.
19I have received a report from the Department of Justice and Community Safety dated 7 June 2022, which has some concerning matters. The author notes that you displayed minimal remorse for the victim by engaging in minimisation throughout the interview that they had with you. You were first interviewed by Corrections. That interview was terminated because you claimed to feel intimidated by the officer. The writer made contact with your lawyer and a second interview was arranged on 26 May of this year. Your counsel Mr Andrianakis apparently assisted in that regard.
20The author of the report states:
'The precursors of Mr Biba's offending appears to be mental health deterioration, illicit substance abuse of cocaine and subsequently drug-induced psychosis. Mr Biba displays minimal remorse for the severity of his behaviour or the potential impact on the victim'.
21In dealing with your time in custody the author noted:
'This service has made enquiries using the prisoner information management system to uncover Mr Biba's behaviour in custody. No notable incidents have been reported in any remand period. Additionally, Mr Biba has been the subject of two urinalysis tests, on 6 December 2020 and 24 July 2021, which returned negative results for any illicit substance use'.
22In analysing your risk assessment factors the author noted that:
'Mr Biba presents with limited insight and remorse regarding the current offences. Throughout the interview he engaged in minimisation, victim blaming and inconsistent responses'.
23The author noted in the report:
'Based on the information provided to the writer and to Mr Staios (the psychologist), Mr Biba appears to have developed distrust of authority figures in his formative years due to exposure to an unstable political system in Albania. Mr Biba engaged in illicit substance abuse as a coping mechanism for adverse familial events'.
24Finally in the conclusion the author states:
'It is the view of this service that Mr Biba will benefit from a community corrections order to develop insight, introduce risk mitigation and relapse prevention strategies. Mr Biba has been assessed as a medium risk of general reoffending and is deemed a suitable candidate to undertake a community corrections order. Should the court impose a community order',
a number of conditions are recommended, and it is recommended that the order be of at least 18 months' duration to enable any programs to be of assistance.
25As I said, I regard your offending as a serious example of the offence for which you are charged. Balancing the maximum penalty prescribed by Parliament and the nature of your offending with your absence of prior criminal history and the other matters urged in mitigation, the sentence of the court is, will you stand up please:
26On Charges 1 and 2 you are convicted on intimidating a law enforcement officer and of stalking and you are sentenced to an aggregate term of imprisonment of 12 months' imprisonment together with a two-year community corrections order. The special conditions of that order will be that you undergo assessment and treatment for drugs, and you undergo assessment and treatment of mental health and you undertake any offending behaviour programs.
27There will be no work component imposed in the order because you have already been punished more than sufficiently by your time in custody. Firstly, are you prepared to enter such a community corrections order?
28OFFENDER: Yes.
29HIS HONOUR: Thank you. You need to understand that this order is designed to make sure that you do not reoffend and look after you for the next two years and if you breach the order by non-compliance, you will be brought back in front of me for resentencing. Do you understand that?
30OFFENDER: Yes.
31HIS HONOUR: All right. On the summary offence of committing an indictable offence whilst on bail you are sentenced to be imprisoned for seven days and I order that sentence be served concurrently with the other sentences imposed today. That is an effective term of imprisonment of 12 months with a two-year community corrections order.
32I declare that all of the sentence imposed has been served by way of pre‑sentence detention and, pursuant to s6AAA, I indicate that but for your pleas of guilty I would have imposed a term of imprisonment of four years with a non-parole period of three years.
33The Crown are seeking a forfeiture order. Do you have a copy of that, Mr Andrianakis?
34MR ANDRIANAKIS: I don't believe I do, Your Honour.
35HIS HONOUR: Do you know what it's all about? I have it. Here it is. Would you hand Mr Andrianakis that document?
36TIPSTAFF: Thank you.
37HIS HONOUR: I would propose to make that unless you have something to say to the contrary. Can you prepare the order?
38ASSOCIATE: Yes, Your Honour.
39MR ANDRIANAKIS: Your Honour, may I just ‑ ‑ ‑
40HIS HONOUR: Yes, go and get some instructions by all means.
41MR ANDRIANAKIS: Mr Biba lays no claim to these items and does not oppose the forfeiture order.
42HIS HONOUR: I will make the order in the terms sought by the prosecution. I note that I have not formally exhibited Mr Sheales' submissions on the plea. I should mark those as Exhibit 3 as the defence exhibit.
43MR ANDRIANAKIS: Thank you, Your Honour.
44HIS HONOUR: Finally, gentleman, in relation to time served he has served more than the 12 months. I do not know what the exact period of custody is. Is it sufficient for me to say that he has served all by way of - that he has served the 12 months by pre‑sentence detention or should I declare a specific period?
45MR ANDRIANAKIS: I think declare a specific period.
46HIS HONOUR: Well, the difficulty with it is if I declare - he's got some credit.
47MR ANDRIANAKIS: Correct.
48HIS HONOUR: I've taken up 12 months of whatever he's done.
49MR ANDRIANAKIS: Correct.
50HIS HONOUR: So, his sentence now is done.
51MR ANDRIANAKIS: Correct, Your Honour.
52HIS HONOUR: For here. But that term of whatever he's got hanging around might be useful for you at another date if you get either convicted or settle.
53MR ANDRIANAKIS: We can open up Renzella principles on that.
54HIS HONOUR: Well, that's all right. But again, it seems nonsense for me to - how many days has he done?
55MR ANDRIANAKIS: I think he's done ‑ ‑ ‑
56HIS HONOUR: Seven hundred or something?
57MR ANDRIANAKIS: Correct, Your Honour. In excess of two years.
58HIS HONOUR: When I've sentenced him to 365 days, 12 months, it doesn't seem to me that I can declare more than that. I mean it's a matter of record that he has in fact - what's the actually figure, Mr Papas?
59MR PAPAS: I'm just trying to find it, Your Honour. We gave Your Honour the figure last time.
60HIS HONOUR: When I bailed him. It won't have changed since I bailed him.
61MR PAPAS: No, that's right. I wasn't here for the bail, but I believe that - I'm just trying to find the figure that we gave on the plea hearing.
62HIS HONOUR: I'll try and find it myself, but I ‑ ‑ ‑
63MR PAPAS: Yes. So according to the document that was one of the later documents, so this is 27 April, he had served 552 days of pre‑sentence detention.
64HIS HONOUR: All right. I will add ‑ ‑ ‑
65MR PAPAS: Up until 27 April.
66HIS HONOUR: I will add to the concluding sections of my sentencing remarks that I have just delivered the following expression.
67You have served the effective 12 months' imprisonment I have served because you have been in custody for 500 and ‑ ‑ ‑
68MR PAPAS: As at 27 April.
69HIS HONOUR: Yes, as at 27 April you have been in custody for ‑ ‑ ‑
70MR PAPAS: In custody for 552.
71HIS HONOUR: ‑ ‑ ‑ 552 days. So that will be on the record in the sentencing remarks, and you can use that as you will.
72MR ANDRIANAKIS: Appropriate. Suitable, thank you, Your Honour.
0
0