R v Balla

[2017] VSC 392

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0057

THE QUEEN
v
NURI BALLA	Accused

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2017
DATE OF SENTENCE:	30 June 2017
CASE MAY BE CITED AS:	R v Balla
MEDIUM NEUTRAL CITATION:	[2017] VSC 392

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CRIMINAL LAW – Sentence – Manslaughter – Arson – Guilty plea – Serious example of a serious offence – Prior criminal history – Reasonable prospects of rehabilitation – General and specific deterrence – Sentenced to 10 years and six months’ imprisonment with minimum of seven years and three months – 324 days pre-sentence detention.

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APPEARANCES:	Counsel	Solicitors
For the Crown	M Rochford QC	Office of Public Prosecutions
For the Accused	P Dunn QC	Papa Hughes Lawyers

HIS HONOUR:

1. Mr Balla, you have pleaded guilty to the manslaughter of Aaron Burnett and an associated count of arson.

1. The circumstances of your offending can be stated relatively shortly:  In early July 2016 you were in the business of selling methyl amphetamine, or ‘ice’.  You sold a small quantity to Aaron Burnett.  He was dissatisfied with the quality and you exchanged telephone calls and text messages.  Burnett’s object was to receive either a refund or replacement ice of a better quality.

1. An arrangement was made during the late evening/early morning of the 2^nd to 3^rd July to meet and for you to supply better quality ice.  A measure of Burnett’s annoyance at the initial quality of the ice supplied can be gleaned from two text messages sent by him to a friend:

(a)       2 July at 9:59pm: “Nothing yet but I am going to get this little cunt and put him in the boot of his own car and burn it to the ground if he doesn’t turn up.”

(b)      3 July at 1:20am: “I am still waiting for the goose mate … if he won’t meet up … he is gonna get it bad.”

1. You also anticipated trouble.  At 3:47am you left a message on Alban Bytyci’s telephone: “Ring me, this bloke I am meeting at Caltex Sunshine Avenue, I think I will have dramas there.”  Mr Bytyci is your cousin.  Later at 3:57am, you texted: “I’m not lying cuz, I need your help.”

1. In the event Burnett arrived at the Caltex Service Station in Sunshine Avenue at about 4:25am.  He came with David Eddowes and Jamie McNally.  Two baseball bats were in their car.  At about this time, you and Bytyci were driving to the Service Station.  You said to Bytyci, “I want to bash him.  No one swears at me, my mum, my family, no one gets smart, no one.”  Bytyci advised you to complete the transaction and simply walk away.

1. At around 4:33am Burnett called you and at about 4:47am Bytyci drove you in his Nissan station wagon to the truck parking area at the rear of the Service Station.  I now quote from the prosecutor’s summary of facts:

At the service station the Accused and the Deceased met.  They had a conversation which was observed by several people, and at the end of the conversation a physical confrontation took place between them involving punching.  The others watching became involved with each other but not with the Deceased.

In the course of the struggle the Accused stabbed the Deceased a number of times with a knife.  The Crown can’t say who produced the knife or who brought it to this confrontation.  The confrontation stopped; the parties all moved back to their respective vehicles.  As they drove away Bytyci asked the Accused “where’s the knife?” He was told to “shut up and drive”.

This summary has been agreed as accurate by Senior Counsel who appeared on your behalf.

1. I return to these sentencing remarks.  During the confrontation one of the two men who arrived with Burnett removed some keys from Bytyci’s car.  You called Burnett’s phone after the confrontation stating you wanted the keys back or you were going to do “the same thing to them.

1. At post-mortem the following injuries amongst others were observed on the body of Burnett:

·           abrasions on the nose and lip;

·           a fine superficial incision below the right knee;

·           an incised stab-type wound measuring 2.5cm in length and gaping for 1cm in the front of the right groin;

·           an incised stab-type wound 1.4cm long in the midline of the epigastrium (the upper abdomen);

·           an incised stab-type wound 4cm in length and gaping for 1cm in the mid posterolateral chest on the right side;

·           an incised stab-type wound 4.5cm in length over the tip of the right elbow exposing the underlying elbow joint;

·           an incised stab-type wound 5cm in length in the left upper arm.

I consider these last two wounds could have been defensive wounds, however there are three significant stab wounds to the trunk of the deceased.  The fatal injuries were the stab wounds which resulted in catastrophic blood loss.  The groin injury was responsible for most of the blood loss.

1. Shortly after this incident you contacted Bytyci and asked to meet him so that you could “fix the car”.  You took Bytyci’s Nissan station wagon, transported it to Todd Road Port Melbourne and used petrol to incinerate it.  You also took his mobile phone and sim card and destroyed them.  Your purpose was to destroy evidence that could incriminate you.

1. By your plea you admit each element of the offence of manslaughter.  I sentence you on the basis that you killed Aaron Burnett by unlawfully and dangerously stabbing him on multiple occasions.  By your plea you specifically admit your actions were unlawful – that is, you admit that they were not carried out in lawful self-defence.

1. On your behalf Mr Dunn QC, in a helpful plea, submitted that your culpability for manslaughter was mid- to lower-range for this type of offence.  Mr Rochford QC who prosecuted equally helpfully, accepted that this was a mid-range example of the offence – it wasn’t just short of murder, he submitted, nor was it a minor assault gone wrong.  For my part, I consider this to be a serious example of a serious offence.  Whoever brought the knife, you had taken possession of it by the time you carried out the acts that caused death.  You knew there was a prospect of trouble, organised back up, and it seems you provided the spark for the confrontation by your remarks after the transaction was completed.  Your counsel, accurately in my view, opined their cause to be ‘hubris’.  I accept that there may have been some provocation and that your actions were spontaneous.  I also accept that you had been using ice in the time leading up to this incident and that at that time you were a regular user of this pernicious substance.  Whilst this may explain your hubris and indeed your participation in the drug transaction itself, it does nothing to reduce your criminal culpability.

1. I turn now to your personal circumstances.  You are now aged 31.  You were originally charged with murder and you have been remanded in custody for almost 11 months.  Your parents are both of Albanian descent.  Your father was a heroin addict who worked intermittently.  He and your mother separated when you were 8 or 9 and you lived thereafter with your mother in Hoppers Crossing, or when she remarried, with your grandparents in Altona.  You were 14 when this occurred.  You left school at 16 and worked initially as a labourer at Gilbertson’s abattoir.  In 2003 you commenced work with your uncle Ibrahim Mala.  He supplied a reference which was exhibited on your plea.  In it he describes how you were adversely affected by your parents’ divorce and when you moved in with your grandparents, they and your father allowed you too much freedom, and soon you were mixing with bad company.  Your uncle tried to help you by employing you in his air conditioning importing and manufacturing business.  Initially you performed very well as a despatch and warehouse manager and you were well organised and related well to customers and staff.  Unfortunately, your drug habit compromised your ability to work and reluctantly in 2008, your uncle had to let you go.

1. Despite this setback you went back to school and achieved accreditation to contract for business in the NBN rollout, and I understand you did that for some time.  Your uncle’s business has prospered since 2008 and, if you are drug free, you will have employment available on your release.

1. In 2012 you were quite seriously injured when test-riding a motorcycle.  It seems that you may have lost consciousness for a short period.  You fractured your left orbit and your right hand and little finger.  Additionally, you suffered an open fracture of the left knee cap.  There were some initial cognitive deficits from your closed head injury.  However, it is not suggested on your behalf that any of these injuries played any part in your current offending.

1. Your prior criminal history dates back to 2005.  You have numerous convictions for driving while either suspended or disqualified, as well as offences for dishonesty.  Significantly in my view, you also have been convicted of various crimes for violence.  In 2009, you were convicted in the County Court of intentionally causing injury.  This offending involved the use of a knife in the context of a drug deal that had gone wrong.  You were sentenced to three months’ imprisonment and placed on a two year Community-Based Order (‘CBO’) with 350 hours of unpaid community work as a component of that sentence.  You breached this and a prison sentence was substituted for the CBO.  In 2010 you were sentenced to an aggregate of four months’ imprisonment for making a threat to kill, intentionally damaging property, possessing a controlled weapon without excuse, driving while suspended and resisting police.  This sentence was wholly suspended upon you entering into an Intensive Corrections Order (‘ICO’).  You breached this ICO as well and you were ordered to serve the unexpired portion of the suspended sentence, that is 106 days.  I regard these as highly relevant prior convictions which impact upon my assessment of your prospects for rehabilitation and the need in this case for specific deterrence.  I observe that your last conviction was three and a half years ago, although your counsel very properly advised me there is still an outstanding offence to be dealt with by the Magistrates’ Court.  As this is not a prior conviction and is to be the subject of a contested hearing, I do not take it into account.

1. Dr Simon Vincenzi, a clinical and forensic psychologist has prepared a report for your solicitors for the purposes of this court hearing.  You suffer from no psychiatric or psychological disorder that could operate to mitigate your criminal culpability.  On the other hand, I consider that you were open with Dr Vincenzi, particularly about your longstanding methyl amphetamine use and your desire to free yourself from it.  Dr Vincenzi considers you to be a willing and good candidate for successful psychological treatment aimed at dealing with substance abuse and violent conduct through a violence intervention program.

1. Consistent with Dr Vincenzi’s opinion, you have used the last year in custody usefully.  I accept that you have been drug-free.  You have undertaken various welding courses and now occupy a skilled position in the MRC factory.  Overall, despite your prior criminal history and the criminality associated with your current offending, I consider your prospects for rehabilitation as quite reasonable.  Certainly, if you are prepared to remain drug-free, you will receive significant support from your family and your extended family.

1. You have pleaded guilty at an early stage.  After the first day of your contested murder committal, negotiations between counsel resulted in your offer to plead guilty to manslaughter being accepted.  You are entitled to a sentencing benefit for this.  The community has been spared the cost and inconvenience of a trial and the relatives of the deceased have been spared the emotional ordeal of that trial.  Mr Dunn urged me to conclude that your plea demonstrated remorse.  I am unable to reach this conclusion.  I accept that you had a possible defence to the charge of murder (that is self-defence) but you have not pleaded guilty to that charge.  In my view, the resolution of a plea of guilty to the charge of manslaughter reflects more your acceptance of legal advice than it does any remorse.  You declined to comment in your record of interview and your post-offence conduct including sending various threatening text messages and the arson itself hardly bespeak remorse.  I observe that this lack of remorse is an absence of a mitigating factor; it is not an aggravating factor.

1. I have listened to and read victim impact statements from Aaron Burnett’s family.  No doubt he had his faults and his conduct during the lead-up to his death was far from exemplary.  He was much loved, nonetheless, and his death has brought grief and suffering to his family and friends.  I take their suffering into account.

1. The sentence that I am about to impose must reflect the community’s concern about young drug-fuelled men who use knives to settle differences.  This court has an obligation to try to deter this type of offending.  As I have indicated earlier, given your prior criminal history, I must also give weight to the sentencing principle of specific deterrence.  The sentence I impose has as a purpose the object of personally deterring you from future violent offending.  I also accord some weight to the sentencing objectives of punishment and denunciation of your conduct.  I will make an order for some cumulation of the arson sentence onto the base manslaughter sentence.  This is to reflect the separate criminality involved in that offending.  I am mindful however not to infringe the principle of totality nor to double punish you.

1. Stand up please Mr Balla.

On the charge of manslaughter I sentence you to ten years’ imprisonment.

On the charge of criminal damage I sentence you to two years’ imprisonment.  I order that six months of this sentence be served cumulatively upon the manslaughter sentence.

There is therefore an aggregate head sentence of 10 years and six months’ imprisonment.

I order that you serve seven years and three months’ imprisonment before becoming eligible for parole.

1. I declare that you have served 324 days by way of pre-sentence detention, not including today.

1. Pursuant to s 6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty, I would have sentenced you to an aggregate sentence of 12 years with a minimum of nine years.