R v Biba

Case [2021] VSC 327


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0267

THE QUEEN Crown
v
ALBERT BIBA Accused

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JUDGE:

Beale J

WHERE HELD:

Melbourne

DATE OF HEARING:

21 May 2021

DATE OF SENTENCE:

11 June 2021

CASE MAY BE CITED AS:

R v Biba

MEDIUM NEUTRAL CITATION:

[2021] VSC 327

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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:

  1. 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

  1. 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

  1. 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.

  1. Later she says:

I hope that the killer will get what he deserve…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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