Director of Public Prosecutions v Tiba
[2024] VSC 509
•29 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0061
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ADAM TIBA | Accused |
---
JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 August 2024 |
DATE OF SENTENCE: | 29 August 2024 |
CASE MAY BE CITED AS: | DPP v Tiba |
MEDIUM NEUTRAL CITATION: | [2024] VSC 509 |
CRIMINAL LAW – Sentence – Aggravated burglary – Guilty plea – Three co-accused – Occupier sustained fatal head injury – Consideration of general and specific deterrence, denunciation, just punishment and community protection – Pre-sentence detention – Good prospects of rehabilitation – Sentenced to 345 days’ imprisonment in combination with a Community Correction Order – Sentencing Act 1991 (Vic), s 6AAA.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Porceddu | Office of Public Prosecutions |
| For the Accused | Mr D Dann KC with Mr M McGrath | Melasecca Kelly & Zayler |
HIS HONOUR:
Introduction
Adam Tiba, on 29 November 2023 you pleaded guilty to one charge of aggravated burglary on 18 July 2020 contrary to s 77 of the Crimes Act 1958.
The maximum penalty for aggravated burglary is 25 years’ imprisonment.
The particulars of the charge are that on the 18th day of July 2020 you entered as a trespasser a building situated at Unit 2, 2 Ella Court with intent to commit an offence involving an assault to a person therein and at the time of entering a person was then present in the building and you knew that a person was then so present or were reckless as to whether or not a person was then so present.
Sentencing following your plea of guilty was postponed until the resolution of a charge of attempted armed robbery, a related incident that occurred on 23 June 2020. A jury acquitted you of attempted armed robbery on 25 July 2024.
On 27 August 2024 I heard submissions from your counsel, Mr Dann KC and Mr McGrath, and a prosecution opening and submissions from Mr Porceddu. I also received and read reports from Dr Luke Armstrong and Ms Nadia Barbagallo, letters of reference and other material.
It is now my responsibility to sentence you for this offence.
Circumstances of the offending
Incident on 23 June 2020
On Tuesday 23 June 2020, there was conflict between you and a co-offender Abdullah Hammoud of the one part and other men named Pramatias, Tigani and Rubini of the other part at Roxburgh Park. It was out of these circumstances that the charge of attempted armed robbery, on which you were acquitted, arose. During that incident there was a physical struggle in which you were stabbed in your back. That wound was described as a ‘penetrating left posterior chest injury’ resulting in reduced air entry with blood haemorrhaging from the wound. You were discharged from hospital the following day.
Incident on 18 July 2020
Approximately one month later, an incident occurred at a unit in Lalor where Mr Rubini resided with his father. You, Mr Hammoud and two other men devised a plan to assault one or more of the occupants of the premises in retaliation for the stabbing inflicted on you in the June 2020 incident.
You were in the vehicle that pulled into the driveway of the premises when Christian Rubini was in the loungeroom with his father, Mr Tigani and Adrian Pacione. They were watching a movie.
The security and the wooden doors at the front of the premises were closed when the occupants heard knocking. Christian Rubini opened the wooden door and observed a male at the front of his house, holding a gun. He said ‘he’s got a gun’ and the other occupants of the house managed to shut the front door as the offender with the gun was entering. He was forced to withdraw. At this point the offence charged was committed and was complete.
The prosecution cannot say whether it was you who was physically present at the front door or whether it was Mr Hammoud or Mr Rahman. It puts its case against you on the basis that you entered into an agreement with the other co-accused men to commit an aggravated burglary at the premises and it was for that purpose that you had travelled with them to the address. By your guilty plea you have accepted that this is what occurred.
But the incident did not end there. As the front door was locked, the unidentified person denied complete entry into the premises immediately discharged four rounds from a semi-automatic firearm into the window to the left of the front door. One of those bullets struck Mr Pacione in the head causing fatal injuries. You and your co-offenders fled the scene.
The prosecution is unable to allege that you fired those shots or that you were aware that one of your co-offenders was armed or that you were physically present at the front door together with the other co-offenders when the shots were fired. It might have been you, but I cannot and do not proceed on that basis. The prosecution’s case against you is that you entered into an agreement with your co-accused to commit the aggravated burglary and that you travelled to, and was present at, that address with two of your three co-offenders. Text messages exchanged between you and your co-offenders on the evening reveal a degree of planning, but not the detail of what you had agreed to or what you expected would go down at the Ella Court unit. Your participation in these communications was circumspect and you have never offered a fulsome explanation of your conduct that night.
You were arrested at your home on 21 October 2020. You were initially charged with murder and remanded in custody from 21 October 2020 until 30 September 2021 serving 345 days in pre-sentence detention before you were granted bail.
Nature and gravity of the offending
As to the nature and gravity of the aggravated burglary, objectively assessed, it was extremely serious, properly characterised as confrontational aggravated burglary. As the prosecutor submitted, you and your co-accused were trespassing with the intention to assault at least one of the occupants of the unit in retribution for the events in June 2020 when in the course of a conflict over a drug deal you were stabbed in the back and seriously injured. Secondly, you were in company, acting with the support of others. Thirdly, the trespassing was into a suburban home late at night, a time and a place where citizens are entitled to feel safe from violence. Finally, this was no spur of the moment response. You carefully planned and executed your offending. One of your number brought a semi-automatic firearm. The moral culpability of any person participating in such an activity is substantial and must be condemned. Such offending calls for a sentence reflecting the objectives of general and specific deterrence, just punishment, denunciation, and protection of the community.
Your counsel emphasised that it is not alleged that you were the one physically present at the front door with the firearm or that you had agreed or were even aware that a co-accused was in possession of, or would produce, a firearm or other weapon and would discharge the firearm in the manner that occurred. Although the death of Mr Pacione was a direct consequence of the illegal trespassing on the premises where he was watching TV and that you were present because you had agreed to accompany your co-offenders with intent to commit an offence involving an assault on one or more of the persons who had been present at the June 2020 incident, I do not sentence you on the basis that you either knew about the presence of the firearm or that you were, in any way, complicit in its discharge.
I accept the submission that the offence with which you were charged was completed moments before the shots were fired and that the criminal actions that caused Mr Pacione’s death were the commission of a different crime for which the offender has not been identified or charged. Although Mr Pacione’s death is significant for properly characterising the seriousness of the aggravated burglary and the events of that night, it plays no role in my assessment of the proper sentence to impose on you.
I accept your counsel’s submission that there is no justification for differentiating the roles played by you and your co-offenders, Hammoud and Rahman. All that said, although the tragic consequences that followed are not said to be your doing, your conduct that night was criminal offending at a very serious level as I have said an aggravated burglary of a confrontational form, very serious criminal conduct, deserving condign punishment.
Response to the offending
Guilty plea
I accept that you have pleaded guilty and that your plea has utilitarian value. You have saved witnesses from the inconvenience and stress of a trial and assisted a Court system still grappling with the backlog of cases caused by the COVID-19 pandemic. As the prosecutor acknowledged, you are entitled to a modest and perceptible reduction on sentence as a result.
Although the prosecutor submitted that your plea of guilty was relatively late and not particularly evidential of remorse for your conduct, I accept that there were forensic reasons why you would have been advised not to plead guilty to this offending at an earlier time. I do not think your guilty plea is a late plea, but the earliest available opportunity to plead guilty was months before you actually agreed to do so.
I also do not accept the prosecutor’s submission that you have not shown any insight into, and any remorse for, your involvement in this incident. A more nuanced analysis is needed. While I see no explicit expression of insight into the conduct constituting the aggravated burglary, both Dr Luke Armstrong, a psychologist who has examined and treated you, and Hamza Alizzi, from Sheltering Hands both noted that you have expressed your remorse, the latter noting that you identified the influence of negative peer groups and the former reporting that you were reflective, genuine in articulating your sympathy with Mr Pacione’s family.
You opposed the court hearing, from Mr Pacione’s relatives, a description of the impact his death is having on them, and I ruled that it was your right to object to the relevance of their statements to an assessment of the proper sentence to be imposed for the aggravated burglary. In any event, I pause to acknowledge that I expect that the death of a 20 year old member of the family in these circumstances is having a profound effect on them, but that grief and suffering is caused, not by the aggravated burglary but by the immediately following conduct for which no one is charged before me. That said, more significantly, the Court has not heard directly from you any expression of remorse either for your conduct in attempting to invade the home of Mr Rubini in order to exact violent retribution or for the tragic consequences for Mr Pacione and his family. Rather, all I have is unexamined statements made out of court by those with your interests at heart, expressions of opinion that I will take some account of. I am left to infer from general circumstances when there is always present a competing self-interest the extent to which you feel remorse. Remorse is consistent with your plea and with your rehabilitation, which I will come to shortly.
Personal circumstances
Age and family background
You were born in Melbourne on 25 May 1999. You were 21 at the time of the offending and you are now 25. You are the second of five children.
Although your family life was initially stable and harmonious, when you were 12 your father’s lifestyle became antisocial involving drug use, infidelity, and criminal behaviour, which resulted in significant volatility in the family unit. At this time you developed behavioural issues at school, and you would attend a number of schools.
In December 2012 your father was sent to gaol for burglary, firearms and drug offences and then in June 2013 your father was sentenced to 3½ years’ imprisonment for armed robbery and related offences, resulting in the collapse of the family unit. By 2015 you had been expelled from Alsiraat College moving to Thomastown Secondary School and you had commenced smoking cannabis, binge drinking and associating with a deviant peer group.
In 2017 you scraped through VCE and enrolled at La Trobe University. Around this time you experimented with cocaine.
In March 2020, when the pandemic commenced, you lost further structure in your life disengaging from your university course and mixing with an antisocial peer group that abused drugs.
Although I do not propose to recite it now, Dr Luke Armstrong has reported extensively on the background of your dysfunctional family circumstances and I have considered carefully what he reported.
Criminal history
Your prior criminal history is limited to a court appearance for a driving offence in January 2020 which was adjourned without conviction.
You do not have prior convictions for any violent criminal offence and have not been charged either before or since with any violent criminal offence.
I regard you as having been of prior good character, a matter relevant to your prospects of rehabilitation.
Pre-sentence detention
I have noted that you served 345 days in pre-sentence detention until you were granted bail. You served this detention during the pandemic and your counsel submitted that you experienced many prison lockdowns and found prison lonely and confronting. Although your access to educational programs was reduced, you did complete various units with Box Hill TAFE.
I accept that serving time in remand during the pandemic was a particular hardship for you and on your own estimate, had you been serving a sentence, you would have been entitled to approximately 60 days of relief from your sentence for emergency management hardship. Whether or not this estimate be exaggerated, I accept that it expresses a significant measure of how long and hard your 345 days in custody actually was. I will equate it with serving a slightly greater period of time under ordinary conditions.
Delay
There has been significant delay between your arrest and today and I accept that this is a mitigating factor in two ways. First, the uncertainty of the outcome has hung over your head in a quite stressful way and you have suffered anxiety, particularly as for a considerable proportion of that time you faced a charge attracting a sentence of life imprisonment. Secondly, you have complied for a long time with significantly restrictive bail conditions, including a nighttime curfew and reporting conditions, creating limitations on your lifestyle not too dissimilar to home detention. I take these matters into account in your favour.
The path to rehabilitation
You are a young offender being just 21 at the time of offending and 25 now. The prospect of successful rehabilitation is an important factor that can moderate the impact of other sentencing considerations when assessing a condign punishment.
While in prison you commenced drug and alcohol counselling and returned negative results on each of the four occasions when you were drug tested.
Shortly prior to being granted bail, your father from whom you had become substantially estranged, contracted a severe case of COVID-19, spending 10 weeks in an induced coma in The Alfred Hospital with a dire prognosis. During this time your mother also became very ill with COVID. Your counsel stated that while you were unable to support either your parents or your younger siblings because you were incarcerated you hit ‘rock bottom’. Overwhelmed by a deep sense of hopelessness and depression you had an epiphany, reconnected with your Islamic faith and became determined to live a better kind of life.
Your counsel submitted that the way that you have turned your life around strongly supports the conclusion that you are well on the way to rehabilitating yourself as a responsible member of the community and that you can be trusted to stay on this path. There are a number of matters that particularly support counsel’s submission.
Most importantly, in the four years since this aggravated burglary, you have not re-offended.
You have been on very strict conditions of bail since 30 September 2021, that is almost three years. As I said being subject to strict bail conditions can properly be regarded as not far from a form of home detention. I also accept that your general compliance with such strict conditions is relevant to my assessment of your prospects of rehabilitation You have been prepared to accept the systemic strictures imposed on you and within them find a way towards a better life. This is commendable, lessening the need for emphasis upon sentencing considerations such as specific deterrence and community protection when assessing a proper punishment.
Next, shortly after your release from custody you commenced alcohol and drug counselling with Ms Nadia Barbagallo whose two reports I take into account. The treatment program with her followed on your apparent commitment to avoid the use of drugs when on remand. Ms Barbagallo assesses you as being at low risk of relapse into habitual, or any, drug use and to have reached the ‘maintenance stage’ of treatment. You have continued to undertake regular urine screening and have never returned an unexplained positive result. Ms Barbagallo’s optimism for your prospects comes from the fact that you have spent considerable time and focus on your identity and you recognise that in order for meaningful change to occur in your lifestyle you had to live according to your values. She reports that this is what you have done. Your commitment is evidenced by participation in treatment, engagement in employment, spending the majority of your spare time with your family and surrounding yourself with positive peers. You identified the steps needed to achieve goals in all areas of your life and have become future focused, sincere in your wish to remain abstinent, with the possibility of having a family of your own, engaging in further studies, starting your own business and travelling.
Ms Barbagallo concluded that because you have continued to make positive progress and have spent substantial time in treatment and consistent employment you do not need to engage in further drug and alcohol treatment. Accepting, as I do, her opinion as to your progress, I am satisfied that you have already achieved significant personal rehabilitation.
Employment and further education
Initially upon your release from gaol you worked as a glazier in your uncle’s business. You subsequently moved into a position at Amourguard Building Services and then to a job at RSR Construction Group in November 2021 where you now work full time. That you moved from incarceration on remand to full time and effective employment is another indicia of your progress to effective rehabilitation.
The income you earn is of particular importance to your family because your father is now unable to work being in receipt of the disability pension with long term serious health conditions caused by COVID. You are also conscious that your mother has suffered greatly both as a result of your father’s conduct and his illness and by reason of your own conduct. You are concerned about her mental health and your counsel says you desperately want to continue to provide emotional and practical support to your mother and your siblings. This is another sign that you are coming to terms with the factors in your background that motivated your criminal behaviour. Acceptance and discharge of familial responsibility is a matter of some significance.
You completed an advanced Diploma of Community Services and a Diploma of Mental Health while on bail. You have also reconnected with and remained connected to your faith, attending the mosque regularly and engaging in your local Islamic community. This is significant in providing you with a new responsible peer group. You also engage in physical activity attending the gym, playing soccer and watching football.
Psychological assessment
A reviewing consulting psychologist, Dr Luke Armstrong, presented two detailed reports of his interactions with you involving 6.5 hours of face to face time, semi-structured clinical review, and standardised testing and assessment. I have carefully considered his reports although I do not propose to extensively detail what he did and what he learned about you.
He describes your approach to drug use rehabilitation as comprehensive and very promising, mostly for reasons that I have already noted.
Dr Armstrong concluded that your recovery is now approaching year 4 of sobriety, your rehabilitation continues to reflect a very positive recovery trajectory and that the risk of your reoffending is low. He describes your rehabilitation prospects as consolidating. He bases his conclusion not just on the progress you have reported but also on standardised and professionally accepted testing assessments. He identifies a number of factors that justify his present optimism, in particular, continuing to submit to drug testing with negative results, remaining gainfully employed, being a willing and substantial contributor to the family’s finances, remaining steadfast in your Muslim faith with the reconnection to community, and fostering an appropriate peer group. Dr Armstrong commented that you have gained insight into the effect of your offending not just on yourself but also on your family. He considers you have very good insight that your peer group was a causative factor in the offending for which you are now being sentenced and that you report that your current peer group are law abiding, have strong faith, and have similarly strong negative views around drug use. In addition, your commitment to physical exercise is likely to be beneficial to your rehabilitation.
Dr Armstrong opines that stabilised PTSD symptoms from your experiences in your teenage years remain and that it would assist your rehabilitation to fully reconcile your past familial experiences which are causally connected to your past addiction problems. Dr Armstrong has previously recommended that you receive targeted psychological treatment with an experienced psychologist to assess the PTSD symptoms but you have not taken up this suggestion. In my view, the sentencing objective of protection of the community from any further criminal behaviour from you would be promoted if you accepted his recommendation.
Dr Armstrong commented that although the last four years have taken a significant toll on you and on your family you have acknowledged to him, as I earlier noted, that Adrian Pacione’s family are far from closure and that you articulated, at least to him, your sympathy with the Pacione family situation.
I am persuaded that the extent of your rehabilitation as attested by the experts who have assisted you in achieving it, has been significant and returning you to prison would genuinely prejudice your rehabilitation to the detriment of the community.
Assessment for a Community Correction Order
At my request you have been assessed to determine your suitability for a community correction order. This assessment is generally consistent with the reports from Dr Armstrong and Ms Barbagallo. You are assessed as suitable to be placed on a community correction order with conditions for unpaid community work and for mental health assistance. The assessing officer did not recommend a supervision condition, a judicial monitoring condition or a drug treatment condition by reference to circumstances that I have already described.
Parity
I must respect the principles of parity in sentencing that require any difference in the sentences imposed on co-offenders to be rationally explained. Abdullah Hammoud was sentenced on 17 February 2023 to 2 years’ imprisonment on a charge of attempted armed robbery, the charge on which you were acquitted, and 2 years’ imprisonment on the charge of aggravated burglary with 1 year of the sentence for attempted armed robbery to be cumulative upon the aggravated burglary sentence. The total effective sentence was 3 years for which a non-parole period of 2 years and 2 months was set. Hammoud served pre-sentence detention of 423 days.
Tahmid Rahman was sentenced on 12 April 2023 to 212 days’ imprisonment (being his time served) in combination with a 12 month community correction order (with 150 hours of unpaid community work) on the charge of aggravated burglary and Ammair Fahal was sentenced on 5 June 2023 to 6 months’ imprisonment in combination with a 12 month community correction order (with 150 hours of unpaid community work) on the charge of aggravated burglary.
Although your role in the aggravated burglary must be viewed as being the same as Mr Hammoud’s role, there are a number of distinguishing features between Hammoud’s position and yours. Firstly, Mr Hammoud pleaded guilty to the charge of attempted armed robbery of which you were acquitted by a jury. Secondly, once Hammoud was granted bail it was revoked. In your case your exemplary conduct in working at rehabilitating yourself over a very extended period whilst subject to quite severe bail restrictions justifies a greater emphasis on the importance of rehabilitation in the case of your sentence. Thirdly, Hammoud had a more extensive prior criminal history including possessing a controlled weapon, committing indictable offences on bail and obtaining property by deception. Fourthly, you were not facing any charges at the time of your offending while Hammoud was already on bail for offences including trafficking cocaine, possession of a drug of dependence, dealing with the proceeds of crime and committing an indictable offence whilst on bail and he had committed further offences subsequent to that offending but before he was sentenced. These distinctions permit me, consistently with the principles of parity, to grant more leniency to you that Mr Hammoud received.
Your counsel submitted, and I agree, that in the case of Rahman your role in the aggravated burglary is also to be viewed in exactly the same way as his role. Further, his rehabilitation was characterised as outstanding by the sentencing Judge and objectively assessed the course of your rehabilitation is also deserving of that epithet. That is so because the progress of your rehabilitation is now more established. You have spent a long time on bail and the period of delay leading up to your sentencing now has been a long and more difficult experience than that for your co-offenders.
Mr Fahal’s position is more clearly distinguished from yours in relation to his role in the conduct the substance of the charge. He was sentenced on the basis that although his role was not minor he was not at the scene when the aggravated burglary occurred. That said, Mr Fahal avoided spending any time in custody at the height of the pandemic but had been sentenced to an 18 month community correction order on unrelated matters and when sentenced was also on bail for trafficking cocaine. His commitment to rehabilitation was significantly less apparent.
Sentencing consideration
What remains is for me to explain the sentencing considerations that have determined the sentence I am about to pass on you.
I accept that an aggravated burglary, particularly in confrontational circumstances such as occurred here, is very serious offending particularly by reference to the fact that you had planned it, seeking retribution from those inside the premises for being stabbed the previous June. You were present at the time of the attempted entry into the premises and intended to be involved in the planned assault. I consider the moral culpability of your conduct to be very serious and to warrant a significant term of imprisonment and a non-custodial sentence would be out of the question. General deterrence, denunciation and just punishment are significant sentencing considerations that necessitate a custodial sentence.
I accept your counsel’s submission that you fall to be sentenced as a relatively youthful offender and as such your prospects of rehabilitation are a primary consideration. I am satisfied that significant progress has been made by you in rehabilitating your life, which although substantially based upon insight into your own identity and family circumstances nevertheless includes some expression of remorse and acceptance of responsibility for your actions. I accept that there is reason to have confidence that your rehabilitation will remain on track because you have demonstrated a genuine investment in your own rehabilitation and I consider that it is in the community interest that your continuing efforts should be encouraged.
I have a dilemma to resolve because, as I said, I expect that sending you back to prison to serve a more substantial sentence would be quite damaging to your prospects of completing your rehabilitation. The established transition that you have achieved is not common and it is most definitely not in the interests of the community to undermine your progress. I will focus on what steps will assist in cementing your transition to a hard-working, law abiding citizen.
You have already served more than 11 months in custody and at a time when serving a custodial sentence was particularly harsh. You know now what prison is like and what to expect if you reoffend.
I am satisfied in all the circumstances that the emphasis on these sentencing considerations can be moderated to some extent and that having regard to the different circumstances of you and your co-offenders, particularly after the delay that has occurred in your case, the principles of parity can properly be applied.
I emphasise, so that you understand me clearly, that you must remain committed to the successful, but ongoing, rehabilitative process upon which you have embarked and which, all things considered, should not be undermined. It is plainly not in your interests to interfere with that progress, and I am satisfied that it is in the interests of the community that you complete the process of becoming a useful and law-abiding member of it.
On the charge of aggravated burglary you are sentenced to 345 days’ imprisonment. I also order that you be placed on a community correction order for a period of 12 months commencing today. The mandatory terms of this community corrections order pursuant to s 45(1) of the Sentencing Act 1991 will be that:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b) You must comply with any obligation or requirement prescribed by the regulations;
(c) You must report to and receive visits from the Secretary during the period of the order;
(d) You must report to the community corrections centre specified in the order within 2 clear working days after this date;
(e) You must notify the Secretary of any change of address or employment within 2 clear working days after that change;
(f) You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary; and
(g) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with this order.
The additional conditions that will apply to this community correction order for its duration under ss 48C, 48CA, and 48D of the Sentencing Act are that:
(a) You must perform 150 hours of unpaid community work during the period of this order;
(b) You must undergo assessment in relation to your mental health and comply with any further referrals or directions that the Secretary may direct that you submit to;
(c) The hours undertaken in relation to (b) above will be deducted from the community work hours outstanding.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty to this offence the sentence I would have imposed on you would have been a period of 2 years and 6 months with a period of 1 year and 9 months to be served before becoming eligible for parole.
I declare that your pre-sentence detention is 345 days and I direct that it be entered into the records of the Court and reckoned as time already served.
0
0
4