CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Offender armed himself and attended a hydroponic cannabis crop house after deceased triggered burglar alarm – Offender confronted deceased as he was leaving premises – Deliberate discharge of firearm by offender – High end example of manslaughter – Late guilty plea – Limited remorse – Previous good character – PTSD exacerbated by incarceration – COVID-19 prison restrictions – Delay – Good prospects of rehabilitation – Deportation very likely – Sentencing Act 1991 (Vic) ss 5(2), 6AAA – Crimes Act 1958 (Vic) s 5(1) – R v Kilic (2016) 259 CLR 256, 266; [2016] HCA 48 – R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Ms A Ellis with Ms B Goding
Director of Public Prosecutions
For the Accused
Mr R Richter QC with Ms V Drago
Melasecca Kelly & Zayler
HIS HONOUR:
Albert Biba, on the fifth day of your trial for murder and cultivating a commercial quantity of cannabis, the prosecution filed over a new indictment and you pleaded guilty to one charge of manslaughter, for which the maximum penalty is 20 years’ imprisonment.
CIRCUMSTANCES OF OFFENCE
The man you unlawfully killed in the early hours of 17 April 2018 was Andrew Toumayan, who was aged 28. He and a friend burgled a sophisticated hydroponic cannabis crop house at 30 Wantirna Road Ringwood, unwittingly setting off a silent alarm, which sent messages to a mobile phone of an associate of yours, Armando Delia, who was criminally involved in the crop house. Delia contacted you and you drove from Box Hill to the crop house. You parked around the corner and made your way on foot to the crop house, armed with a loaded gun. As CCTV from a neighbouring property indicates, you arrived outside the front gate almost at the same time that Toumayan exited. You simultaneously discharged one shot which struck him in the chest. He did not go to the ground when shot. The two of you ran off in opposite directions. Toumayan collapsed a short time later and died. You contacted Delia who picked you up in his car and gave you a lift to your car. You made your way back to your apartment in Box Hill.
Victim Impact Statement
There was a moving victim impact statement from Lena Toumayan, the deceased’s mother. She says:
The killer killed 3 people same time, my son, my daughter and myself. Shame I’m still a life (sic) to suffer every day of my life.
Later she says:
I hope that the killer will get what he deserve…
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.
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Details
AGLC
R v Biba [2021] VSC 327
Case
[2021] VSC 327
Decision Date
CaseChat Overview and Summary
In the Supreme Court of Victoria, the Crown brought proceedings against Mr Biba for the offence of manslaughter. The incident arose from a confrontation at a hydroponic cannabis crop house, where Mr Biba, armed and responding to a burglar alarm triggered by the deceased, discharged a firearm, leading to the deceased's death. The case involved determining the appropriate sentence for manslaughter, taking into account the offender's actions, the circumstances of the crime, and various mitigating factors.
The primary legal issue before the court was the determination of an appropriate sentence for manslaughter, considering the high culpability of the act, the late guilty plea, limited remorse, and the offender's background. The court had to balance these factors against the mitigating circumstances, including Mr Biba's previous good character, the exacerbation of his PTSD due to incarceration, the impact of COVID-19 prison restrictions, the delay in the proceedings, and his prospects of rehabilitation. Additionally, the likelihood of deportation post-sentence played a significant role in the sentencing considerations.
The court, in delivering its judgment, meticulously weighed the culpability of the act against the mitigating factors. It noted the high culpability of the act, the deliberate nature of the discharge of the firearm, and the lack of remorse. However, it also considered the late guilty plea, the exacerbation of PTSD due to incarceration, the impact of COVID-19 restrictions, the delay in proceedings, and the good prospects of rehabilitation. The court concluded that while the act was of high culpability, the mitigating factors warranted a sentence that allowed for rehabilitation and deportation considerations. The court ultimately determined an appropriate sentence, taking into account both the gravity of the offence and the mitigating circumstances.
The final orders of the court were to impose a sentence that reflected the high culpability of the offence, balanced against the mitigating factors, and to ensure that the sentence was consistent with the principles of justice and rehabilitation, while also considering the likelihood of deportation.