Tiba v The Queen - [2013] VSCA 302

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0023

BASSAM TIBA	Applicant
v
THE QUEEN	Respondent

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JUDGES	REDLICH and PRIEST JJA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 September 2013
DATE OF JUDGMENT	24 October 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 302
JUDGMENT APPEALED FROM	[2011] VSC 13 (T Forrest J)

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CRIMINAL LAW – Sentence – Applicant pleaded guilty to manslaughter – Applicant offended whilst on parole – Applicant fled jurisdiction after offending – Applicant subsequently apprehended and served balance of parole period – Applicant subsequently sentenced for manslaughter – Whether totality principles infringed – Previous sentence taken into account at sentencing – Leave to appeal refused.

CRIMINAL LAW – Sentence – Total effective sentence of ten years– Whether sentence manifestly excessive – Leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr L C Carter	Turnbull Lawyers
For the Crown	Ms F L Dalziel	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

For the reasons given by Robson AJA and the additional reasons of Priest JA I would refuse leave to appeal.

PRIEST JA:

I have had the advantage of reading the reasons of Robson AJA in draft, and agree that the application for leave to appeal against sentence should be refused.

By the time that the applicant came to be sentenced for manslaughter, he had completed the previous sentence relating to the attack on his former wife. Strictly, the application of the principle of totality was inapposite in circumstances where the offences on the applicant’s wife were disparate in time and circumstances to the manslaughter; where the applicant was not being sentenced for a series of offences; and where the applicant was not undergoing a previous sentence at the time that the sentence for manslaughter was imposed.[1] Despite this, in my view, a fair reading of the sentencing judge’s remarks indicates that in a broad and practical way he took into account the fact that the applicant had completed a sentence of imprisonment shortly before he imposed the sentence for manslaughter, and moderated the sentence that he passed in recognition of that fact. Thus, although the sentencing judge’s reference to s 16C of the Sentencing Act 1991 is a little curious – since the section could have had no part to play in the fixing of the sentence for manslaughter – in my opinion it would not have influenced the judge in a manner adverse to the applicant’s interests.
[1]Morgan v R [2013] VSCA 33.

With respect to the complaint that the sentence passed is manifestly excessive, counsel for the applicant did not seek to rely on the report of Dr Anthony Cidoni by way of fresh evidence. Thus the Court was required to assess whether the sentence imposed for manslaughter was manifestly excessive having regard to what was before the sentencing judge. Synthesising all of the factors relevant to the exercise of

the sentencing discretion which confronted his Honour, in my opinion it cannot be…

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 Tiba v The Queen

Details

AGLC: Tiba v The Queen [2013] VSCA 302
Case: [2013] VSCA 302
Decision Date: 24 October 2013

CaseChat Overview and Summary

In the High Court of Australia, Tiba sought to appeal his conviction and sentence for manslaughter, following a guilty plea. The dispute centred on the manner in which his sentence was determined, particularly whether the sentencing principles of totality were adhered to appropriately given his prior parole conditions and subsequent flight from the jurisdiction. The Court was asked to determine if the sentence imposed was manifestly excessive and whether the totality principle was breached by not considering his previous parole sentence at the time of his sentencing for manslaughter.

The legal issues before the Court included whether the totality principle was correctly applied in sentencing Tiba, considering his prior parole conditions and the additional sentence he served. The Court had to determine if the total effective sentence of ten years was manifestly excessive, taking into account all aspects of the sentencing process. The Court also had to consider if the principles of totality were correctly applied in the sentencing, particularly in relation to the parole sentence and the subsequent sentence for manslaughter.

The Court found that the sentencing judge had appropriately considered the totality principle in sentencing Tiba. The judge had taken into account the time Tiba had already served for breaching his parole conditions and the additional sentence he served while on the run. The Court held that the total effective sentence of ten years was not manifestly excessive, given the nature of the offence and the mitigating factors. The Court concluded that the sentence imposed was fair and appropriate, and therefore refused Tiba's application for leave to appeal.

Orders