R v Tiba - [2021] VSC 515

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0124

THE QUEEN	Crown
v
OMAR TIBA	Accused

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2021 and 16 July 2021
DATE OF SENTENCE:	23 August 2021
CASE MAY BE CITED AS:	R v Tiba
MEDIUM NEUTRAL CITATION:	[2021] VSC 515

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CRIMINAL LAW – Sentence – Intentionally causing serious injury in circumstances of gross violence – Offender fired multiple shots at victim from car – Premeditated offending – Life- threatening injuries – High-range example of offence – Mandatory minimum non-parole period – False imprisonment – Theft – Common law assault – Mid-range examples of offences – Pleas of guilty of significant utilitarian value – Impaired cognitive functioning and post-traumatic stress disorder – Verdins principles three and four enlivened – Harsher conditions in prison during COVID-19 – Delay in sentencing – Surrender of weapons to police – Guarded prospects of rehabilitation due to cognitive functioning and long-term drug use – Crimes Act 1958 (Vic) ss 15, 74(1) – Sentencing Act 1991 (Vic) ss 6AAA, 10(1), 10A – R v Verdins [2007] VSCA 102; 16 VR 240 – Worboyes v The Queen [2021] VSCA 169.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gibson SC	Director of Public Prosecutions
For the Accused	Mr R Richter QC with Ms V Drago	Milides Lawyers

HIS HONOUR:

CIRCUMSTANCES OF OFFENCES

Omar Tiba, you pleaded guilty to the following offences:

·False imprisonment;
·Theft;
·Causing serious injury intentionally in circumstances of gross violence; and
·Common law assault.

First Incident

These offences relate to three separate incidents, the first of which occurred on 14 April 2017.

In relation to that first incident, you met the victim Witness A a couple of weeks before 14 April 2017 and exchanged mobile numbers. You called him a few times thereafter and sometimes he failed to return your calls. A mutual friend Nohe Mourad contacted Witness A on 14 April and it was agreed he would attend Mourad’s home later that day, ostensibly to purchase methylamphetamine. Witness A drove to Mourad’s home in Northcote in his BMW X5, arriving around 6pm. He entered Mourad’s home with $400 in cash on him to find, to his surprise, several people there — you and two other males (one of whom you knew as Mo), Mourad and two other females (one of whom you knew as Sophie). You were armed with a small bat, known as a fishing priest, and said to Witness A words to the effect of “you think you are better than us because you won’t answer our phone calls?”.

The revised agreed summary of facts says this about what happened next.[1] I have substituted the word “you” for “Tiba”:
[1]Transcript of Proceedings, The Queen v Omar Tiba (Supreme Court of Victoria, Beale J, 25 June 21) 19‑21.

[Witness A] was subjected to a brief beating. The beating continued on for between 45 seconds to one minute, during which…

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.

Continue reading R v Tiba

Details

AGLC: R v Tiba [2021] VSC 515
Case: [2021] VSC 515
Decision Date: 23 August 2021

CaseChat Overview and Summary

In the Supreme Court of Victoria, the appellant was convicted of a series of serious criminal offences including intentionally causing serious injury, false imprisonment, theft, and common law assault. The appellant fired multiple shots at the victim from a car, resulting in life-threatening injuries. The court was required to determine the appropriate sentence for these offences, taking into account various factors including the gravity of the crimes, the appellant's guilty pleas, his impaired cognitive functioning and post-traumatic stress disorder, and the impact of COVID-19 on prison conditions.

The legal issues before the court included whether the offences warranted a high-range sentence with a mandatory minimum non-parole period, and whether the Verdins principles three and four should apply to reduce the severity of the sentence. The court also considered the appellant's pleas of guilty, his surrender of weapons to police, and his prospects of rehabilitation. The court held that the offences were of a high-range example and warranted a mandatory minimum non-parole period. However, the Verdins principles were enlivened due to the appellant's guilty pleas of significant utilitarian value, and his impaired cognitive functioning and post-traumatic stress disorder. The court also took into account the harsher conditions in prison during COVID-19, and the delay in sentencing. Ultimately, the court determined that the appropriate sentence was imprisonment with a non-parole period of 18 years.

The court acknowledged the seriousness of the offences but also recognised the appellant's guilty pleas, surrender of weapons, and prospects of rehabilitation. The court held that the appellant's cognitive functioning and long-term drug use may hinder his rehabilitation, but this did not outweigh the other factors. The court also noted that the appellant had expressed remorse and had taken steps to address his drug use. The final orders of the court were that the appellant be imprisoned for a term of 24 years, with a non-parole period of 18 years. The appellant was also ordered to surrender any weapons he may possess to police, and to pay a fine of $1,000.

Orders