R v Biba
[2021] VSC 327
•11 June 2021
| 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:
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 what he did wasn’t an accident … I’m asking fair judgments and hoping for one too.
The prosecution have withdrawn the charge of murder, substituting a charge of manslaughter. I am not sentencing you for killing her son with murderous intent — that is, with an intent to kill or with an intent to cause really serious injury.
Sentences for manslaughter are much, much lower than sentences for murder.
No doubt, the sentence I pass on you will add to her grief. But that is not something which works to your disadvantage.
High moral culpability
I consider your moral culpability to be high. Your decision to take a loaded firearm to guard a crop house was a considered one, whether or not you fired the gun in a panic when Toumayan came through the gateway wearing a balaclava. Further, you are a person of no little intelligence, having tertiary qualifications in Engineering and Information Technology. As conceded, you knew you were going to a sophisticated crop house.[1] Guarding crop houses is, self-evidently, a dangerous business, even if nothing like this had happened on previous occasions when you attended in response to the silent alarm going off. I infer you were aware that you might encounter a burglar trying to steal cannabis who might be armed. That is why you had a loaded gun. I find that you were prepared to use that gun, which you did, deliberately, tragically.
[1]Transcript of Proceedings, DPP v Albert Biba (Supreme Court of Victoria, Beale J, 21 May 2021) 2, 20, 38.
The path of the bullet through Toumayan’s body indicated that he was leaning over when shot. Your senior counsel initially submitted that Toumayan must have lunged at you just before the shot but he resiled from that submission in the course of your plea hearing,[2] ultimately submitting that you thought Toumayan was lunging at you. But I will not act on evidence from the Bar table, so to speak. You gave no evidence at your plea hearing, and I am not inclined to attach much weight to self-serving statements you made to a psychologist that Toumayan sought to assault you just before you fired your weapon. Since you produced a gun when you confronted Toumayan as he was leaving the premises, it is quite possible Toumayan was simply ducking for cover at the time he was shot. I am not satisfied on the balance of probabilities that Toumayan lunged at you or that you thought he was lunging at you when you discharged the gun.
[2]Transcript of Proceedings, DPP v Albert Biba (Supreme Court of Victoria, Beale J, 21 May 2021) 60.
Although I am satisfied that you deliberately discharged the gun — a matter conceded by your senior counsel[3] — I am not satisfied beyond reasonable doubt that you intended to shoot Toumayan. Indeed the prosecution conceded that I could not exclude the reasonable possibility that you fired off a warning shot, not intending to hit Toumayan.[4] But the bringing of a loaded weapon to the scene for the purpose of guarding a crop house, the presentation of that gun, and its deliberate discharge in close proximity to and in the general direction of the deceased all elevate your moral culpability to a high level.
[3]Your senior counsel conceded as much: Transcript of Proceedings, DPP v Albert Biba (Supreme Court of Victoria, Beale J, 21 May 2021) 21.
[4]Transcript of Proceedings, DPP v Albert Biba (Supreme Court of Victoria, Beale J, 21 May 2021) 46.
Whether motivated by greed
The prosecution submitted that your offending was motivated by greed, not need, as your senior counsel claimed. But the prosecution could not prove what reward you received or were to receive for your role in guarding the crop house and conceded they had no proof of enrichment.[5] I cannot be satisfied beyond reasonable doubt that you were motivated by greed. Which is not to say that I am satisfied on the balance of probabilities that it was motivated by need. There is evidence in the brief that you were often seen with wads of cash.[6] On the evidence available to me, I cannot make a finding either way.
[5]Transcript of Proceedings, DPP v Albert Biba (Supreme Court of Victoria, Beale J, 21 May 2021) 26.
[6]Transcript of Proceedings, DPP v Albert Biba (Supreme Court of Victoria, Beale J, 21 May 2021) 54. See Statement of Alice Brock at [14] (found at Depositions, 1355).
Seriousness of offending
Notwithstanding decisions of the Court of Appeal deprecating the practice of sentencing judges trying to place an offence on the spectrum of seriousness for the offence in question,[7] the High Court in R v Kilic[8] says a sentencing judge is “bound” to make an assessment of the seriousness of the offending.[9] I consider your offence falls at the high end of the spectrum of seriousness for manslaughter. As already mentioned, I find that in your role as guardian of a crop house you made a considered decision to bring a loaded firearm to the scene of the crime. You were prepared to use that gun if the need arose and you deliberately discharged it in close proximity to the deceased. Your actions, which were not all performed in a panic, were fraught with danger to life.
[7]See, for example, DPP v Weybury [2018] VSCA 120 at [33], [34], [54]; also Lee v The Queen [2018] VSCA 343 at [31].
[8](2016) 259 CLR 256, 266; [2016] HCA 48.
[9]See R v Kilic (2016) 259 CLR 256, 266 [19]; [2016] HCA 48, [19].
PROCEDURAL HISTORY
On 31 August 2018, you were arrested and you have been in custody ever since.
On 1 September 2018, you gave a no comment record of interview, after which you were charged with murder and cultivation of a commercial quantity of cannabis.
On 2 and 5 December 2019, there was a contested committal hearing, at the conclusion of which you were committed to stand trial.
On Monday 19 April 2021, your trial for murder and cultivating a commercial quantity of cannabis commenced before a jury. In your defence response to the prosecutor’s opening address, you disputed through your senior counsel that you were the shooter.
On Friday 23 April 2021, a new indictment was filed over and you pleaded guilty to manslaughter, accepting that you were the shooter. You had not offered to plead guilty to manslaughter prior to that date.
CIRCUMSTANCES OF OFFENDER
I have received various materials relevant to your personal history, your character, your psychological issues and your time in jail.
More particularly, I received:
·A letter from you;
·A report by consultant psychologist Luke Armstrong dated 18 May 2019;
·Character references from Zoje Biba (your mother, who wrote on behalf of your father and grandmother as well), Edilona Biba (your older sister), Malbora Biba (your younger sister), Ylii Biba (your younger brother), Rolanta Zntrava (your friend), Edmond Dragoti (an employer), and Kayne Provis (Recreation Officer at Melbourne Remand Centre);
·Certificates from Kristal University in Albania where you studied Engineering, Electronics and Information Technology;
·A bundle of certificates and other documents relating to courses, counselling and work you have undertaken in jail; and
·The results of four prison urine screens between 2018 and 2020, all negative for illicit drugs.
Early life
You were born in Albania on 12 March 1988, making you 33 now.
You grew up in Albania, one of five children to your parents who are both still alive and living there. Your father was an engineer, working on the roads mainly, who retired prematurely because of vision impairment. Your mother worked in agriculture.
You have two brothers and two sisters. Your older brother Diego is also in Australia, in custody. Your younger brother Ylii is living in Albania. Your older sister Edilona is living in Germany, your younger sister Malbora in England.
Life under communist rule in Albania was hard. Your family was poor and Catholic. The great majority of Albanians are Muslim. Both you and your sister speak of your Catholicism as attracting prejudice and persecution throughout your youth. In your letter to me, you speak of having found your religion again, and that being a great help to you in prison.
After the collapse of communist rule in Albania in the early 1990s, and the civil unrest that followed, you say that you and your family witnessed and suffered much violence at the hands of soldiers who from time to time took over your home. Curiously, your mother Zoje, your older sister Edilona and your younger sister Malbora mention nothing of this. The closest your younger brother Ylii comes to this issue is when he writes in his character reference:
We lived in a deep area of North Albania where mentality, fanaticism and human rights were never known. Only one canon was known and applied, invented 500 years ago, which denied all basic human rights, where people had as a principle, blood feuds, bullying, persecution, avoidance, unscrupulous fanaticism and often murder.
In your discussions with Mr Armstrong you went into considerable detail about the violence you experienced in Albania at the hands of soldiers and he opines that it led to you having Post Traumatic Stress Disorder, from which you still suffer. The prosecution does not dispute that you have PTSD.
Education and work
You attended secondary school in Macedonia between 2004 and 2007, working as a waiter to support yourself. The school was about six hours from your parents’ home.
Later, you attended Kristal University in Albania and obtained tertiary qualifications in Engineering and Information Technology between 2010 and 2013. You worked in a furniture store to support yourself during your tertiary studies.
Migration to Australia
You say you fled Albania after the family of a Muslim woman with whom you had struck up a relationship threatened to kill you. You say that once the relationship between the two of you was discovered, the woman was forced to marry a Muslim man but she left that marriage: her family did not know her whereabouts, blamed you and threatened your life. You told Mr Armstrong that brothers of the woman even assaulted your parents[10] who, along with an employer of yours, advised you to flee Albania. I will say more of these claims later.
[10]Psychological Report of Luke Armstrong dated 18 May 2021, 3.
You first made your way from Albania to Greece where you obtained a false passport and then, eventually, made your way to Australia, arriving here in 2013. Your older brother Diego was already living here, having arrived a few years earlier. You lived with Diego initially.
Life in Australia
You sought but were not granted asylum. You were granted a bridging visa, but it did not allow you to work. You were financially dependent on the generosity of your brother and members of the Albanian community for whom you did “errands” and other jobs, like driving. You came to realise that some of these errands and jobs were for persons who were engaged in criminal activities, such as Armando Delia, whom you understood to be criminally involved with multiple crop houses.
You got married in 2014, but that relationship was on and off: you and your wife only lived together intermittently. You have no children.
The psychological report/ PTSD
Turning now to the psychological report tendered on your behalf, the main points I take from it are these:
·You suffer from PTSD which stems from your early traumatic life in Albania;
·Your mental health improved when you came to Australia but your underlying PTSD remained;
·Incarceration has exacerbated your PTSD symptoms (nightmares, anxiety, panic attacks), even though you are now for the first time receiving antidepressant medication and counselling for your condition;[11]
·Jail is harder for you than the ordinary prisoner because of your PTSD.
[11]A letter dated 23 May 2019 from a psychologist with Forensic Mental Health Services speaks about your participation and commitment to counselling from 14 November 2018.
I am satisfied that the last two points attract the operation of principles 5 and 6 of R v Verdins[12] and call for some moderation of your sentence. But to my mind that is the full extent of the application of Verdins in your case.
[12](2007) 16 VR 269; [2007] VSCA 102.
I am not satisfied that your PTSD contributed in any significant way to your offending. Armstrong “suspect[s]” your PTSD symptoms — “residual fear, hypervigilance and startle like responses”[13] — contributed to you discharging the gun, but such “suspicion” hardly establishes a causal connection between your PTSD and your offending capable of reducing your moral culpability.
[13]Psychological Report of Luke Armstrong dated 18 May 2021, p 6.
Nor should general and specific deterrence be moderated by reason of your PTSD. General deterrence looms large here. As I said in discussion, the message must be sent to those contemplating guarding crop houses with loaded guns that they are liable to receive substantial punishment if they are caught doing so. I will say more about specific deterrence below when discussing your prospects of rehabilitation.
Previous good character
You have no criminal antecedents. You are a person of previous good character. You have glowing character references.
Model prisoner
It appears you have been a model prisoner. You have worked as a hairdressing billet since October 2019 and been upgraded to the “essential worker program.” You have also undertaken and completed a range of courses, provided clean urine samples and undertaken counselling for your mental health issues.
COVID-19 restrictions during remand
Whilst in prison you have been subject to COVID-19 restrictions. Normal visitation rights were severely curtailed for much of 2020. Further, I was told[14] — and it was not disputed by the prosecution — that between March 2020 and March 2021 prisoners in your unit were locked down every second day for 24 hours. On alternate days, you were allowed between two and five hours out of your cell.
[14]Defence Submissions on Sentence [50].
Your sentence should be moderated to reflect the additional hardships for prisoners in a time of pandemic.
Whether remorseful
I think it likely that you are sorry for having killed Toumayan, for having taken a human life. But I think your remorse is limited.
Yours was a late plea. While it will still attract a significant discount because of its utilitarian benefits — had the trial ran its course it was anticipated to take about four weeks — I am not satisfied that it was a plea motivated by strong remorse as opposed to self-interest.[15]
[15]You did extremely well out of your plea deal: despite you knowingly guarding a sophisticated crop house, the prosecution accepted you were not criminally involved in that crop house, filing over an indictment with only one charge on it — manslaughter.
In your letter to me, you talk about having made mistakes in your life. You do not talk at all about your remorse over killing Toumayan.
In your character references from your mother, sisters and younger brother, there is nothing that even hints at you being remorseful for killing Toumayan.
You spoke to the psychologist about your remorse — and the psychologist clearly thought you were genuine, describing you as “overwhelmed” at having taken another’s life[16] — but his opinion on this matter (which is substantially based on untested self-serving statements by you, not specialised knowledge) does not dissuade me from the view that your remorse is limited.
[16]Psychological Report of Luke Armstrong dated 18 May 2021, 6.
The gun with which you shot Toumayan has not been located. When you were arrested, you made a no comment record of interview, as was your right. When I asked your senior counsel at your plea hearing “Where’s the gun?” and “What did he do with the gun?” he said he did not have instructions from you in that regard[17] — and that is where it was left, by your counsel and, more importantly, by you. That too was your right, but your unwillingness to disclose what happened to that lethal weapon does not sit well with the notion of “overwhelming” remorse for the taking of life.
[17]Counsel did not ask for an opportunity to seek instructions either.
Prospects of rehabilitation
Because you have no criminal antecedents and have been a model prisoner, I consider that your prospects of rehabilitation are good.[18] This reduces the importance of specific deterrence as a sentencing purpose.
[18]Were your remorse not limited, I would say “very good”.
Prospect of deportation
Records provided to the court confirm that you currently hold a Bridging Visa C (subclass 030).[19] While s 501 of the Migration Act 1958 (Cth) does require the relevant Minister to cancel a person’s visa if that person has been sentenced to a term of imprisonment of 12 months or more,[20] s 501CA grants the Minister a discretionary power to revoke that decision.[21] Accordingly, deportation in this matter is not a certainty. The prospect of deportation, however, is real.
[19]Statement of Jessica Nalda Howlett dated 23 November 2018 [10]–[16], at Depositions 1196.
[20]Migration Act 1958 (Cth) ss 501(3A), (6)(a), (7)(c).
[21]Section 501CA(4).
It is well established that the prospect of deportation is relevant to sentencing if this prospect will increase the burden of imprisonment for the offender.[22]
[22]Guden v The Queen [2010] VSCA 196. The decision in Allouch v The Queen [2018] VSCA 244 [40] confirms that the prospect of deportation should only lead to a lesser sentence where there is sufficient evidence of both the risk of deportation and the impact of that risk; and in Fichtner v The Queen [2019] VSCA 297 at [96] the Court of Appeal further determined that the increased hardship of imprisonment may be given limited weight in light of the seriousness of the offending (in that case, multiple instances of sexual abuse of children). Factors such as close relationships or family in Australia, the length of time spent living in Australia (Ankur v The Queen [2021] VSCA 110 [117], [118]), the loss of opportunity to continue to live in Australia, and whether deportation “would in fact be a hardship” (Guden v The Queen [2010] VSCA 196) are relevant to this exercise.
The prosecution accepted this principle but contended that such a burden will not be felt as acutely by you as it may by others as you have supportive family in Albania. The defence submitted that deportation is a certainty, and that the prospect is “terrifying” for you because of the vendetta over the Muslim woman with whom you were once in a relationship.
I consider it very likely that you will be deported to Albania when you are released from jail. I cannot think of any reason the Minister would exercise his discretion in your favour.
But I balk at finding that you will be killed when you return to Albania or that you are convinced of that prospect, even though Mr Armstrong says in his report that you are so convinced and that your family share that conviction.[23] But it does not appear from his report that Mr Armstrong communicated with any of your family. And, curiously, no such fear is expressed in your families’ character references. No mention either in those references of the vendetta over the Muslim woman which you say led to you fleeing Albania. This is surprising since you told Mr Armstrong that your parents were assaulted by the brothers of the Muslim woman and your parents urged you to flee Albania because of the vendetta.
[23]Psychological Report of Luke Armstrong dated 18 May 2021, p6: “It is your client’s understanding that upon his completion of a sentence, a deportation order will be sought by the Australian government. Mr Biba is convinced, a view also maintained by his family, that he will be killed upon return to Albania. Your client was informed that the family of his ex-girlfriend continue to harass the family, with threats they intend to kill your client if, and when he is returned to Albania. These stresses in combination with the circumstances of your client’s arrest and subsequent remand, within an environment of violent offenders have brought about a deterioration and escalation of his PTSD symptoms.”
Nonetheless, you have been in Australia since 2013. Despite your difficulties here, you want to remain in Australia. Your knowledge that you will very likely be deported to Albania at the end of your imprisonment is a hardship that adds to the many hardships of imprisonment, and I will take it into account in your favour.
Delay
I also have regard to the delay in the finalisation of your case, almost three years from charge to trial. The inordinate nature of the delay was in large measure due to the pandemic, not any fault of yours. You are not to be punished for exercising your right to plead not guilty. I do not consider that the fact that you entered a late plea precludes some reduction to your sentence because of delay: after all, the charges you were fighting were withdrawn by the prosecution.
COMPARABLE CASES
For the purpose of working out an appropriate sentence in your case, I have had regard to a large number of manslaughter sentencing cases where guns were the weapon of choice.[24] No two cases are exactly the same and sentences are not precedents which must be applied or distinguished. But these cases have informed the sentence I will impose on you.
[24]R v Ashman [2020] VSC 105; The Queen v Atesok [2017] VSC 599; R v Cicekdag [2017] VSC 781; R v D’Angelo [2014] VSC 522; R v Howard [2014] VSC 194; DPP v McDonald [2017] VSC 465; R v Munt & Ors [2014] VSC 675; Director of Public Prosecutions v Osborn [2017] VSC 535; R v Rapovski [2016] VSC 706; Director of Public Prosecutions v Russo [2019] VSCA 129; The Queen v Samaras [2019] VSC 120; R v Sypott [2003] VSC 327; R v Torun [2014] VSC 146; DPP v Yucel [2019] VSCA 53.
SENTENCE
On the charge of manslaughter, I sentence you to 10 years’ imprisonment with a non-parole period of 7 years.
Section 6AAA declaration
But for your plea of guilty, I would have sentenced you to 11 years’ imprisonment with a non-parole period of 8 years.
PSD
You have been in custody continuously since 31 August 2018. I declare PSD of 1,015 days, not including today.
Disposal order
I make the disposal order sought by the prosecution and consented to by you.
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