Crown v Accused

2 Your crimes, which were premeditated and carried out by shooting each of your unsuspecting victims in the head, represented a shocking breach of trust and parental responsibility. By your appalling actions, you have taken two young and promising lives and devastated two extended families. Your crimes would well and truly shock the community. The indications are that save for what may be gleaned from your eventual pleas of guilty to these crimes, there is nothing to indicate that you are in any way remorseful for your actions.

3 You were 55 years of age at the time of your offending and are now almost 58. You were born in Montenegro and are of Albanian background. You emigrated to Australia in 1988. You married your former wife Sadete Musovic in 1989. Lindita, who was your second-born child, after your son Arben, was 25 years old at the time you murdered her.

4 In 2008, you separated from your wife when she informed you that the marriage was over. She left the family home and took Lindita with her. Arben remained living with you for some years before moving away from you when he was 20. You and Sadete divorced in 2009.

5 In June 2011, Sadete obtained a family violence intervention order ('FVIO') against you. You have, in discussions with expert witnesses, admitted one incident of violence by you towards your former wife.

6 On 22 August 2011, when she was 17, Lindita obtained a FVIO against you as a result of some violent conduct by you towards her on that day which caused Arben to intervene to protect her. 22 August 2011 was the last day on which Lindita had any contact with you until the day you killed her. She made it clear to her brother that she hated you and wanted nothing to do with you.

7 Later in 2011, Arben, too, obtained a FVIO against you.

8 The upshot of all of this was that from 2011, you were entirely estranged from your former wife and children, each of them having made the decision to have no further contact with you. It was in that context that your murder of Lindita and her husband took place.

9 During the plea hearing, it was asserted on your behalf by Ms Skvortsova that a number of paragraphs of the Summary of Prosecution Opening should not be admitted or acted upon by the Court, for reasons spelt out in her written and oral submissions. In short, it was submitted that the paragraphs concerned unproven allegations of family violence towards people other than Lindita, that the material was of little relevance, concerning allegations of some antiquity, and that the matters could not be effectively challenged on the plea. The plea hearing continued, the Court having indicated that it would be made clear in the reasons for sentence the decision made as to admissibility of these portions of the material, if any such decision was necessary.

10 In the end, I did not consider it necessary to make such a decision. In formulating these reasons for sentence, I have not had regard to the challenged material, save for the fact of the making of the FVIOs in respect of Sadete and Arben which are objective facts. As for the contention of Ms Parkes for the Crown that the challenged material is part of the background of your offending, providing a context for it, whilst that may be true, I consider that there is sufficient background contained in the material in respect of which no issue is taken.

11 Lindita and Veton married on 28 December 2018. After their wedding, they lived with Veton's parents, Zeta and Alil Musai ('Alil'), at 21 Salisbury Street, Yarraville. Also living at the property were Veton's brothers Lindor and Drilon, and Drilon's wife, Dijane Rexha ('Dijane'). Such was their closeness that Lindita, Veton, Drilon and Dijane were in the process of building joint townhouses together and were living with the Musais while the construction was being completed. Every indication is that Lindita and Veton were very happily married.

12 Lindita was working as an administrative assistant at a real estate agency. Veton, who was 29 years of age, worked as a team leader at the National Australia Bank. They had their whole lives in front of them.

13 Unsurprisingly in the circumstances, you were not invited to attend the wedding of Lindita and Veton. Nor had Veton sought your permission to marry your daughter. Things you have said indicate that both of these facts were sore points for you.

14 In the years leading up to your crimes, you lived an isolated and sad life in your rented premises in Altona. You had been unable to work since sustaining an injury in 2013 in a motor bike collision. You had been diagnosed with depression as recently as 2016. The indications are that you harboured resentment and anger towards Lindita and Veton for the reasons mentioned in the previous paragraph.

15 Your conduct in the hours leading up to and at the time of the murders makes it abundantly clear that your killings of Lindita and Veton were planned, premeditated acts, carried out by you with the intention of killing them both. Having said that, the length of any pre-planning and other circumstances surrounding your offending are unknown to the Court, largely as a result of the fact that you claim to have no memory at all of the events. That this may be so would be explainable by the substantial brain injury you inflicted upon yourself shortly after the murders, to which I will turn in due course.

16 On Saturday 28 December 2019, Lindita and Veton checked into a hotel in the CBD and spent three nights there celebrating their first wedding anniversary. On the morning of Tuesday 31 December 2019, they checked out of their hotel. At 10.09am, they caught an Uber from the city to the Musai family home in Yarraville.

17 At 8.20that morning, you left your home in Altona driving your maroon coloured Mazda hatchback. You had with you a loaded Smith & Wesson 38 calibre revolver which was unregistered and had an indecipherable serial number. You had additional ammunition with you in the car and on your person.

18 You arrived in the area of the Musai family home in Salisbury Street, Yarraville at 8.34am. You then drove around the surrounding streets a number of times, driving repeatedly past the Musai family home. At about 8.51am, you parked your vehicle facing east outside a property near the Musai family home and waited there in your vehicle for the arrival of Lindita and Veton.

19 At 10.23am, Lindita and Veton arrived outside 21 Salisbury Street in the Uber. The Uber driver assisted them to remove their luggage from the vehicle. Dijane, Alil and Lindor were all at home at the time.

20 Lindita and Veton then walked up to the front door of the house and rang the doorbell. Whilst they were waiting for the door to be opened, you got out of your vehicle and walked up close behind then holding the revolver. You shot them both in the head from close range in quick succession.

21 Dijane heard the gunshots and opened the door. She saw Lindita and Veton lying on the front porch with wounds to their heads and you standing about three metres away holding the gun. You had a blank look on your face. You put the gun to your head and Dijane slammed the door and yelled out to those inside that Lindita and Veton had been shot. You walked away from the front of the property.

22 Dijane, Alil and Lindor went outside and assisted Lindita and Veton. Lindor called 000.

23 Having left the scene, you walked west along Salisbury Street and then along some other streets to an area of grassland at the end of Gordon Parade next to the golf course. You positioned the gun at the bottom of your chin and shot yourself in the head, falling to the ground. You got to your feet and shot yourself in the head for a second time. This was witnessed by nearby residents who also called 000.

24 Meanwhile at the Musai residence, Dijane, Alil and Lindor Musai performed CPR on Lindita and Veton with the assistance of neighbours. Police and then paramedics arrived at the scene. CPR was continued on Lindita but she was unable to be revived and she died at the scene at 10.42am.

25 Veton was taken by ambulance to The Alfred Hospital and placed on life support. He died at 8.40pm on 1 January 2020.

26 You were found by police where you had shot yourself. You were still holding the gun in your left hand. You were arrested and the firearm was secured and seized. You were treated by paramedics. You were taken by ambulance to The Alfred Hospital where you underwent surgery for the removal of two projectiles from your head. Your right eye was removed. Your clothing was seized by police. Eight rounds of live ammunition were found in the front pocket of your pants.

27 As part of the police investigation, your motor vehicle was seized. A small bag containing a number of .38 calibre rounds was found in the glove box.

28 Autopsies on the bodies of Lindita and Veton were conducted by Dr Michael Burke at the Victorian Institute of Forensic Medicine on 1 January 2020. Lindita was found to have suffered a close range gunshot wound to the left side of her head which caused her death. Veton was found to have suffered a close range gunshot wound to the front of his head which caused his death.

29 You did not undergo a police interview as a result of the serious injuries you had inflicted upon yourself.

30 You were treated for some months in The Alfred Hospital and then St Vincent's Hospital for your severe acquired brain injury ('ABI') and its psychiatric sequelae. For a long period of time, you remained in denial about the death of your daughter and her husband, and the injuries you inflicted upon yourself. You claimed to be stuck in a glitch in a computer game called Call of Duty Black Ops. You have always denied any memory of the crimes you committed. A neuropsychology progress note made on 31 January 2020 stated that the extremely severe brain injury you had sustained was superimposed on a pre-existing chronic personality disorder. You displayed a number of psychotic symptoms while in hospital, but there was nothing to indicate you suffered from psychosis at the time of your crimes.

31 As indicated already, you are now 57 years old, and were born in Montenegro of Albanian background. You are the youngest of six siblings. You were raised as a Muslim but in a family which was not strict about religious matters. You have described your upbringing as a happy one, although some material would suggest your father was very strict with you and applied some physical force to you. You were educated to the year 12 level in Montenegro and after this, trained as a mechanic, that employment being interrupted by 12 months in the army when you were 21. You moved to Australia at the age of 24 in 1988 in search of a better life. Two of your sisters also moved out here and you lived with one of them for a while. At the time you came to Australia you had little command of the English language. You quickly gained employment as a mechanic, which you did until you sustained a back injury. Later, you worked as a cleaner, then in security, and then as a truck driver.

32 You met Sadete in Australia one year after your arrival and you married in 1989. Your marriage was initially a happy one, although there is some evidence that you were a controlling husband, and one of the things which led to a deterioration in the marriage was your desire to control what employment was engaged in by your wife. As indicated earlier, you separated in 2008, and in the years that followed, you became estranged from your wife and both of your children.

33 You sustained serious injuries as a result of a motor bike accident in 2013. You experienced chronic pain and associated depression.

Your mental state now and at the time of your offending; Verdins[2] issues

34 Not surprisingly, your legal representatives investigated the questions whether you may have the defence of mental impairment available to you, and whether you were fit to plead. To that end, you were assessed by a psychiatrist Dr Nina Zimmerman on 22 May 2020 and 1 September 2020 at Port Phillip Prison. Dr Zimmerman had access to a range of material including the hand-up brief, clinical notes from The Alfred Hospital from the time of your admission there, and psychological reports dated 18 June 2004 and 12 April 2016 by a psychologist named John Karamanos. She prepared two reports, the first dated 1 June 2020 and the second dated 6 September 2020.

35 The focus of the first report was the question of a mental impairment defence. Dr Zimmerman summarised your previous psychological history which was largely contained in the reports of Mr Karamanos. You apparently suffered an episode of depression following the death of your sister in the mid-1990s. In 2004, you presented as depressed and anxious in connection with financial and other problems. You were considered by Mr Karamanos to be suffering from moderate to moderately severe anxiety and depression. You were treated with cognitive behavioural therapy.

36 In March 2015, you presented at a general practitioner Dr Sheriff suffering from depression secondary to chronic pain and distress about your divorce and the fact you were missing your children. You were prescribed an antidepressant by Dr Sheriff, which you remained on until 2017 as far as Dr Sheriff was concerned, although I note that you have indicated that you did not take the medication as a friend had warned you about the risk of addiction. You were noted in 2015 to be in a low mood, feeling frustrated and angry, and feeling that you had been rejected by society. Dr Sheriff questioned a possible diagnosis of post-traumatic stress disorder ('PTSD') but made no such diagnosis.

37 In 2016, you again presented to Mr Karamanos suffering from depressed mood, impaired concentration and other symptoms. You were apparently demoralised and tearful, feeling useless, lonely and isolated. You were socially withdrawn and were having no contact with family or friends. You attended him on five occasions for the management of your condition. You remained on the antidepressant previously prescribed to you, although I note what I said earlier about this. Mr Karamanos diagnosed you with moderate to severe major depressive disorder, chronic pain and some post-traumatic symptoms which did not meet the Diagnostic and Statistical Manual of Mental Disorders - 5th Edition ('DSM-V') criteria for PTSD. He felt your prognosis was guarded, and recommended a referral to a psychiatrist.

38 Also going towards the picture of your mental state at the time of your crimes was what you told Dr Zimmerman, albeit that you claimed no memory of the events. You said that you had no one to share Christmas with in 2019. You were distressed that your daughter had been engaged and married without telling you. You had learned that she married though your landlord who was close to your ex-wife. In relating the matter to Dr Zimmerman, you apparently wept, telling her that your daughter was too young to know her duties and that her husband should have known better. He should have asked for your daughter's hand and given you the respect you deserved. You also expressed anger at Veton's father, a traditional man who should have encouraged his son to do the right thing.

39 You related to Dr Zimmerman that in the year leading up to the offending, you would obtain enough food to survive but would otherwise never leave the house. You would either watch TV or play video games. You slept for hours on end and cried constantly. You felt depressed, and like a piece of garbage who had been thrown away.

40 Dr Zimmerman considered that your history was suggestive of repeated episodes of major depression, which essentially remained untreated as you did not comply with medication prescribed to you. As for your condition at the time of your offending, she opined:

Mr Shaptafaj's mental state appears to have deteriorated over 2019 and his depression was aggravated further by the death of his mother in September or October 2019.[3] At the end of 2019, Mr Shaptafaj was experiencing a low mood daily associated with tearfulness, anhedonia, social isolation, disturbed sleep, hopelessness, helplessness, loss of energy, worthlessness and impoverished ability to concentrate. His social and occupational functioning was significantly impacted on. Given the presence of full criteria required for a diagnosis for a Major Depressive Disorder as listed under the DSM-V 1 criteria for Major Depression, Mr Shaptafaj is best understood as suffering from a Severe Episode of Major Depressive Disorder.[4]

41 Dr Zimmerman made no diagnosis of the presence of psychotic features at the relevant time, notwithstanding your psychotic state in the aftermath of your crimes.

I have considered the availability of a Mental Impairment defence as defined under s20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. As noted, I believe that Mr Shaptafaj suffers from a major mental illness as intended under (sic) Act - namely Severe Major Depressive Disorder. His inability to recall the events constituting the alleged offending makes any assessment of his awareness of the nature and quality of the conduct that constituted the alleged offending impossible.

Impairment of cognitive functioning is a key part of the syndrome of Major Depressive Disorder. In cases of Severe Major Depressive Disorder, there is increased frequency of significant cognitive impairment. DSM-V lists impaired memory, impaired ability to think, difficulty concentrating or inability to make even simple decisions as features that can be present. Demonstrated deficits on neuropsychological testing include deficits in processing speed, attention, executive function as well as learning and memory. Severe symptoms and longer duration of depressive episodes are associated with greater cognitive impairment. Major Depressive Disorder is associated with deficits in multiple aspects of executive functioning. Executive functioning includes abilities such as planning, inhibition, organisation, self-monitoring and emotional regulation. I believe that on the balance of probabilities, Mr Shaptafaj was severely depressed at the time of the alleged offending and that when he shot his daughter, her husband and himself, he was unable to reason with a moderate degree of sense and composure as to the wrongfulness of his behaviour as a result of cognitive dysfunction as a result of Severe Major Depressive Disorder. I believe that he has a defence of mental impairment available to him.[5]

43 Dr Zimmerman continued, 'As noted, I believe that there was a direct relationship between Mr Shaptafaj's Major Depression and the offending behaviour'.[6]

44 Dr Zimmerman expressed some opinions on the question of remorse, and the likely effect upon you in future of the illness. In respect of the former, she indicated that in the context of your having no memory of your crimes, and having the continuing belief at the time she saw you that your daughter and Veton were still alive, you were not able to express remorse for something you did not believe had happened. In respect of the latter, Dr Zimmerman expressed the opinion that you will remain a high risk of suicide in future. A custodial sentence would weigh more heavily on you as a result of your major depressive disorder and enduring psychotic illness compared to someone without these conditions. She spoke of the risk of relapse into depression in future.

45 The focus of Dr Zimmerman's second report was the question of your fitness to plead. She concluded that you did not meet a number of the criteria for fitness set out in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and were not therefore fit to stand trial.

46 In response to the opinions of Dr Zimmerman set out in her two reports, the prosecution engaged Professor James Ogloff to assess your fitness to stand trial and the availability of the mental impairment defence. He assessed you in interviews via Jabber link on 8 October and 4 November 2020. He had access to all of the material relied upon by Dr Zimmerman and the two reports of Dr Zimmerman. It would be correct to say that Professor Ogloff completely disagreed with the central opinions expressed by Dr Zimmerman as to fitness and the availability of the defence of mental impairment.

47 In setting out his conclusion on the matter of the availability of the mental impairment defence, Professor Ogloff stated:

As I have summarised above, Mr. Shaptafaj may have been experiencing symptoms of depression around the time of the alleged offences and he would appear to have met DSM-V criteria for a Chronic mixed Adjustment Disorder with mixed anxiety and depressed mood in the face of the estrangement and ongoing separation from his family. Although Mr. Shaptafaj displayed symptoms akin to a delusional disorder after his head injury, it is apparent that the delusional thinking and behavioural disturbances he demonstrated occurred as a result of a Major Neurocognitive Disorder due to Traumatic Brain Injury. Indeed, there is insufficient collateral evidence to support a diagnosis of delusional disorder - or any other psychotic disorder - prior to the alleged offences. Whilst further clinical assessment of this and his other mental health issues would be helpful if further collateral information was available, there is a lack of evidence to suggest he was psychotic at the time of the alleged offence or that his level of depression was severe enough to explain the alleged offending. Indeed, Mr. Shaptafaj denies having a memory of the events leading up to the murders, and was unable or unwilling to share his mental processes in the lead up to and during the alleged offending during the interview.

48 Professor Ogloff indicated that in his view, you appeared to have developed a dysfunctional personality which likely commenced when you were mistreated by your father. He continued:

He admitted, understandably, to being both angry and sad about not having been invited to his daughter's wedding. He was incensed by being disrespected by his son-in-law, who did not follow tradition and seek his permission to marry his daughter. The only point during the interview that he became more animated, is when he was discussing his expectations to be respected by his son-in-law and his anger about being excised from his family's lives. He remains angry at his son for not coming to visit him in prison, notwithstanding ... the fact that he has been charged with killing his sister and her husband, who was described as his long-term close friend.

Taken together, two factors appear to have contributed to the alleged offending. The first is Mr. Shaptafaj's level of distress, including depressive symptoms, and ongoing psychological difficulties he experienced as a result of his estrangement from his family. The second factor pertains to his controlling personality, his ongoing anger, even outrage, at being rejected and disrespected by his son-in-law. The culmination of this apparently came when he was not invited to the wedding.

As a result of his unwillingness or inability to discuss his thoughts around the offending, it is not possible to determine with any degree of certainty what led him to commit the alleged offences.

With respect to s. 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, it is my opinion that:

1. Mr. Shaptafaj knew the nature and quality of the act he was committing. While it is not possible to access his thought processes or motivation for the alleged offending, the evidence available shows that he would have understood the acts he allegedly undertook and their likely effect. Indeed, the murders took a considerable amount of planning and ascertainment of information about the whereabouts of the victims and their plans. He was able to access a weapon (gun), determine when his daughter and her husband would be arriving at the house, approach them, shoot both of them fatally, ring the doorbell,[7] and then carry out acts (self-inflicted gunshot wounds) intended to end his own life. In his interview with me, he said that he did not believe that he could still be alive after shooting himself twice in the head. As a result of these factors, it is my opinion that Mr. Shaptafaj understood the nature and quality of the acts that constituted the alleged murders.
2. Although Mr. Shaptafaj's longstanding mental health issues were almost certainly present at the time of his offence, there was no documented, independent evidence of psychosis or psychotic depression prior to the alleged offence. While he may have been depressed, it is most unlikely that it rose to a level to deprive him of reason regarding his actions. Although I could not access his thought processes leading to the alleged murders, he actually emphasised during the interview that he could not believe he killed his own daughter, noting it was 'unnatural' to do so. The acts were deliberate and well planned. There is no evidence that as a result of depression, or other mental health factors, that he would have reasoned that the murders were not legally or morally wrong. As a result, it is my opinion that, on balance, Mr. Shaptafaj knew that the conduct he allegedly undertook was wrong and that he could reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong.[8]

49 In addition to rejecting the availability of the defence of mental impairment to you, Professor Ogloff concluded that you were fit to plead.

50 In the aftermath of this report of Professor Ogloff, you pleaded guilty to the two charges of murder now before the Court.

51 In response to the defence outline on the plea in which Ms Skvortsova foreshadowed reliance upon most of the limbs in Verdins, the Crown outline indicated that the assessment of clinical neuropsychologist Mr Martin Jackson contained in his report dated 24 August 2021 would not be challenged. As for the reports of Dr Zimmerman, it was noted that the reports do not specifically address Verdins considerations. The Crown relied upon the opinions of Professor Ogloff in challenging the applicability of any of the limbs in Verdins.

52 Relying on the opinions expressed by Dr Zimmerman in her first report, Ms Skvortsova submitted that all of the limbs in Verdins other than the second one have application to you. She acknowledged that the onus was on the defence to satisfy the Court that the particular condition relied upon did exist at the relevant time, and did have the relevant effect.

53 Ms Skvortsova submitted that the Crown contention that Dr Zimmerman's reports did not specifically address Verdins issues was misconceived. The issues that Dr Zimmerman was asked to explore would well encompass Verdins considerations, she submitted. Furthermore, the fact that Dr Zimmerman reached a conclusion on the applicability of the mental impairment defence in respect of which Professor Ogloff formed a contrary view would not invalidate her opinion as to the nexus between your mental state at the time of your offending and the offending itself.

54 Ms Skvortsova submitted that in light of the nexus found by Dr Zimmerman between your severely depressed state at the time of the offending and the crimes themselves, your moral culpability should be considered to be reduced. That nexus should also be considered to reduce the primacy of just punishment and denunciation in sentencing you. Ms Skvortsova submitted, on the basis of Dr Zimmerman's opinions, that it would be open to the Court to conclude that your severely depressed state at the time impacted on your ability to reason and exercise judgment in making the decision to carry out these crimes. Specific and general deterrence should also be moderated, not only on account of the evidence of Dr Zimmerman about your state at the time, but also based on the evidence of Mr Jackson about the extent and implications of your injuries now. Finally, Ms Skvortsova submitted that the fifth and sixth limbs should also be enlivened. Any sentence passed would weigh more heavily on you because of the conditions from which you suffer. In addition, there is the risk that imprisonment will aggravate your conditions.

55 The Crown, on the other hand, submitted that none of the limbs in Verdins is enlivened. The defence submissions in respect of limbs 1, 3 and 4 relied upon an acceptance of the evidence of Dr Zimmerman as to the existence of a major depressive disorder at the time of the offending, and the nexus between this and your crimes. Her evidence conflicted with the evidence of Professor Ogloff, which should be preferred, it was submitted. As to the final two limbs, although issue was not taken with the evidence of Mr Jackson, whilst he assessed you as being depressed at the time of his consultation with you, he did not diagnose you as suffering from major depressive disorder. In the end, the defence submissions in respect of limbs 5 and 6 depended for their existence upon an acceptance of the evidence of Dr Zimmerman. Her evidence should not be accepted.

56 Notwithstanding this, Ms Parkes accepted on behalf of the prosecution that your depression and the impact of your reduced cognitive functioning on your day-to-day life in custody should be taken into account in the sentencing synthesis in the general sense.

57 In summarising the scope and limitation of the Verdins principles eight years after they were laid down, the Court of Appeal in DPP v O'Neill[9] stated, in part:

Second, in order for the first, second, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the impairment to mental functioning and the appellant's moral culpability or the need for general and specific deterrence. If the mental impairment existed at the time of the offending, it must have some 'realistic connection' with the offending; or have 'caused or contributed' to the offending; or be 'causally linked' to the offending. For example, Vincent and Weinberg JJA and Mandie AJA said in DPP v Weidlich in a passage subsequently quoted with approval in DPP v Eli and R v Safati:

Generally, the measure of culpability of an offender under the criminal law rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences. Little thought is required to appreciate that the greater the level of insight and understanding possessed by him or her concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved. The Court in Tsiaras and Verdins recognised that sometimes as a consequence of the contribution made to the commission of an offence by a mental disorder from which a perpetrator was suffering at the time, it would be unjust to attribute to the offender a full measure of personal responsibility. The presence of the disorder could bear upon the sentencing judge's assessment of the individual's motivation and level of culpability, prospects of rehabilitation, the need for specific deterrence and the appropriateness of giving full effect to the principle of general deterrence. However it follows, when addressing the question of the significance of the disorder for these purposes, that the nature and extent of its possible effect upon the offender's behaviour must be carefully explored.

Third, to show the necessary connection to the offending and to so enliven limbs one to four of Verdins, the offender must establish that the mental impairment affected the offender's ability to appreciate the wrongfulness of the conduct, or obscured the offender's intent to commit the offence, or impaired the offender's ability to make calm and rational choices or to think clearly at the time of the offence.

...

Fifth, cogent evidence, normally in the form of an expert opinion, is necessary to establish the existence of the mental impairment, either at the time of the offence, or at sentence, or both, and the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.

Sixth, the assessment by the sentencing judge must be undertaken with rigour, as was made clear in Verdins itself and has since been repeatedly emphasised by this Court on appeal.

...

As this Court emphasised in Verdins, and in many later cases, careful consideration needs to be given to whether the evidence establishes that mental capacity has been impaired, and to which of the circumstances set out in Verdins are engaged. That consideration requires a rigorous evaluation of the evidence.

...

The expert evidence should be scrutinised with care and, where appropriate, a challenge made to the adequacy of the material. Where the judge concludes that the material is inadequate to support the opinion expressed, either because of its content or because of the circumstances in which it came into existence, the sentencing judge will ordinarily be obliged to state the reasons for rejecting the opinion or for finding that the material is inadequate. But it is a matter for the sentencing judge to determine the manner in which such issues are resolved.[10]

58 Having conducted an assessment of the evidence in this case with the required rigour, I am not satisfied that any of the first to fourth principles in Verdins is enlivened. In my view, the opinions of Dr Zimmerman relied upon are built upon shaky ground. True it is that there is evidence that you were diagnosed with depression in 2016, but there is nothing to indicate that you were diagnosed with a continuing or worsening depressive condition at any time between 2016 and the time of your offending. You told Dr Zimmerman something of your mental state in the lead-up to your offending, but anything you said about your feelings and mental processes in the relevant period would have to be viewed with considerable caution as a result of your impaired cognitive function due to your self-inflicted brain injury. There is, to my mind, no acceptable evidence that you were suffering from a major depressive condition on the day of your crimes. On this score, and in all other respects in which the opinions of Dr Zimmerman differ from those of Professor Ogloff, I prefer and act upon the opinions of the latter. Professor Ogloff was of the view that there was a lack of independent evidence to indicate that any state of depression from which you suffered at the time of your crimes was of such severity as to explain your offending or to deprive you of reason regarding your actions. I accept that evidence.

59 Furthermore, even were I to have been satisfied that you were, as indicated by Dr Zimmerman, labouring under a severe depressive state at the time of your crimes, I would not have been satisfied of the necessary causal connection between such a state and your crimes, or that such condition affected your ability to appreciate the wrongfulness of your actions, or impaired your ability to make calm, rational choices or to think clearly. Significantly depressed you may possibly have been, but the well-planned and premeditated crimes which you committed cannot be viewed as having been committed with anything less than a full appreciation of the wrongfulness of your conduct. You made the dreadful decision to murder your daughter and her husband. Having made the decision, you enacted your plan to chilling effect. This was a choice you made, for what could only have been the most powerful of reasons. The indications are that your feelings of resentment and anger toward Lindita and Veton, set against the background of your estrangement from your whole family and your sad and isolated state, were at the heart of your crimes.

60 I have concluded that there is no reason why just punishment and denunciation should not have their normal part to play in sentencing you, nor why general and specific deterrence should not bear their full significance.

61 In respect of the final two principles in Verdins, Ms Skvortsova relied on a combination of the evidence of Dr Zimmerman and that of Mr Jackson. What was relied upon in Dr Zimmerman's case was her diagnosis, contained in her report of 1 June 2020 that you suffer from Major Depressive Disorder. That diagnosis was based in part upon her assessment of you on 22 May 2020. She conducted a further review of you on 1 September 2020. By this time, she noted that your Major Depressive Disorder was in remission. She was not in receipt of any information about your then current medications, and could not say why your illness was in remission. She expressed concerns about the prospects of a future relapse.

62 Mr Jackson, who saw you on 17 August 2021, noted you to be clearly depressed, but did not arrive at any particular diagnosis in this respect. He set out a large number of ways in which your brain injury may affect your daily functioning, and might adversely affect your ability to cope within a custodial environment. In respect of your cognitive impairments flowing from your injuries, he considered that the effects of these on your daily functioning 'are unlikely to be seen by others or himself due to him being in a highly repetitive and structured environment'.[11] He pointed out that the prison environment puts no pressure on your cognitive functions at all 'at the current time'.[12] This may change were you to try to increase your involvement in the prison, for example, by getting a job or doing courses.

63 As to the extent to which your injury and its effects may adversely affect your ability to cope in prison, Mr Jackson set out a number of areas in which you might be hampered and restricted.

64 In the end, albeit with some hesitation, I have concluded that there is evidence which would enliven the fifth limb of Verdins, to be seen in a combination of your ongoing state of depression and the ongoing effects of your brain injury. The ongoing effects of these two conditions upon you may mean that the sentence you will receive will weigh more heavily upon you than upon a person not so afflicted. Whilst there has been no recent diagnosis of you suffering from a depressive condition, it is clear that you do so suffer and that it has the potential to make life more difficult for you in custody. As for the ongoing effects of your brain injury, these are being well managed now as you lead a limited life in the highly structured routine of a prison, but may hamper your ability in the years to come should you seek to lead a more rounded life, insofar as that might be possible in prison.

65 The finding that the fifth limb of Verdins is enlivened would have little impact on sentence. On this score, I note that the mental impairment from which you currently suffer is not such as would render you an inappropriate, or less appropriate, vehicle for general deterrence.[13]

66 As for the final limb of Verdins, I do not believe the evidence would warrant a conclusion that there is a serious risk that imprisonment will have a significant adverse effect on your mental health.

Nature and gravity of the offences and your culpability and degree of responsibility

67 Murder is always a serious offence, as indicated by the applicable maximum penalty of life imprisonment, 'reflecting the value which the law, and our community, place on the sanctity of each human life'.[14] In your case, you have taken away two young lives. Your crimes were premeditated, carried out upon two members of your family who should legitimately have expected you to be their protector, not someone who would kill them so savagely. They were young and still at the beginning of their lives together. They had done you no harm, and yet, you allowed your unjustified feelings of resentment and anger towards them to drive you to commit unspeakable crimes. Having prepared yourself to carry out these crimes, you lay in wait for their return, and upon their arrival, and when they were at the threshold of their home, with a cold heart, you shot them both in the head. Having done so, you remained in the front yard for long enough to be seen by Dijane as she opened the door, and then, as Veton at least remained alive, you callously left your victims stricken on the porch and fled to a location at which you tried to take your own life in what can only be described as cowardly fashion.

68 It is perfectly clear that the circumstances of your crimes dictate that each of the murders you carried out was a particularly grave example of the crime of murder. Your moral culpability is exceedingly high.

69 The prosecution of these charges commenced in the Magistrates' Court on 9 January 2020. On 14 May 2020 at a committal mention, you pleaded not guilty and were committed straight for trial in this Court, bypassing a contested committal. A considerable period of time was then spent by your legal representatives and the prosecution exploring the question of your fitness to plead and the possible availability of a mental impairment defence. The report of Professor Ogloff was provided on 3 December 2020. You pleaded guilty to these crimes on arraignment on 9 February 2021. Your plea of guilty in the circumstances can be viewed as having been entered at an early opportunity.

70 Ms Skvortsova submitted that the utilitarian value of your plea of guilty is high, sparing as it did the need for family and other witnesses to give evidence on a trial. The utilitarian value was enhanced in this case, she submitted, by the fact that your legal advisers had obtained a report which, at least on its face, 'left ajar the door on the pursuit of a full defence of mental impairment'.[15] She further submitted that the utilitarian value of your plea of guilty is amplified by the current COVID-19 environment, in which delays and backlogs to trials have been occasioned by the pandemic. Ms Skvortsova submitted that the Court should accept your plea of guilty as an indication of your remorse. She acknowledged, however, that other than your plea of guilty, she could point to no evidence of remorse.

71 The Crown, by reference to the decision of Worboyes v The Queen,[16] accepted that your plea of guilty is of significant utilitarian value, particularly in the current climate. As to the question of remorse, Ms Parkes submitted that you have exhibited none.

72 I have accorded you a reduction in sentence for the significant utilitarian benefit of your pleas of guilty. The magnitude of this benefit will be apparent in the statement I will make pursuant to s 6AAA of the Sentencing Act 1991 ('the Act').

73 I note, however, that whilst your pleas of guilty may be accepted as some evidence of remorse and the other subjective aspects of a plea of guilty spoken of by the Court of Appeal in Phillips v The Queen,[17] there is no other evidence indicative of your being remorseful for your crimes. That may in part be due to the effects upon you of your self-inflicted brain injury. On the other hand, the absence of any real remorse accords with the cold hearted and shocking decision you reached to carry out these murders, and your callous conduct in the immediate aftermath of your crimes in remaining in the front yard until the emergence of Dijane, leaving your stricken daughter and her husband on the porch, and then immediately taking yourself to a location where you sought to end your life.

74 The Court received victim impact statements from 28 family members and friends of Lindita and Veton which were of great assistance to the Court in fully understanding the almost unbearable trauma, loss, sadness and fear flowing directly from your crimes to their many victims. It is obvious that Lindita and Veton occupied a central and vital place in the hearts and minds and lives of their many friends and family. Their loss will be felt tragically and forever.

75 By way of illustration, and not to elevate these statements above any of the others provided, I note the words of Veton's brother Drilon Musai, outlining the grief he feels at the loss of his brother and his sister-in-law Lindita, whom he viewed as his sister. In listing some of the effects of the crimes upon him, he stated:

The worst thing I've lost, and the biggest curse I have felt as a consequence of what happened, is losing my laugh. Not only did Veton make me laugh more than anyone in this world, but we had the exact same laugh, I mean the pitch, the sound we make trying to breathe, everything, so now even in those rare moments where I am taken away from what has happened and enjoying myself, I laugh, but I don't hear my laugh, all I hear is Veton's laugh, and then I realise that it's not him. And I realise how much I miss him and Lindita, and then I don't hear laughing anymore, but crying.

The pain and loss I feel, only my family and I know what that is like, and I pray that nobody ever goes through what we have as we all died that day and our lives as well as the lives of everyone Veton and Lindita knew will never be the same.

77 Drilon's wife Dijane Musai, who opened the door of the house to the horrific sight of Vindita and Veton lying on the porch, said:

Witnessing the death of the ones you love will not only bring sadness but trauma you will have to deal with silently for the rest of your life. Losing two people brings grief and mourning, but witnessing it brings extreme trauma and psychological pain. I die silently every day to the pain and trauma I have to relive...

That day changed my life. That day changed everyone's life. Our family is broken. My husband is broken. I myself am broken. I can't speak for others and what they feel deep down, yet I struggle a lot with the mourning of Veton and Lindita. Yet what eats me every day is the memory, the memory of what happened, how it happened, why it happened. I had to close her eyes and say goodbye. I had to give her mouth-to-mouth when deep down I knew it was too late. I had to watch her last breath come out of her mouth. Do you know how that feels? To be completely hopeless, to have no control, to stand there breathing while the one you love is not?

I loved her. I loved him. Lindita was the sister I never had, and I was hers...I always used to promise her, 'I will always have your back and always be by your side'. I was by her side. I was by her side that day the whole time. I didn't leave her alone. I kept our promise.

78 Whilst of course the contents of the victim impact statements must not be allowed to overwhelm the sentencing process, the victim impact statements provide an important insight into the profound grief and pain caused to so many as a direct consequence of your offending. I take the contents of the statements into account in sentencing you.

79 You are to be sentenced as a serious violent offender in respect of charge 2 on the indictment. As a result, I am required by s 6D of the Act to regard protection of the community from you as the principal purpose for which sentence is to be imposed. Quite properly, the prosecutor did not submit that in order to achieve that purpose, I should impose a sentence longer than that which is proportionate to the gravity of the offences considered in light of their objective circumstances.

80 For what it is worth, murder is a category 1 offence. This means that pursuant to s 5(2G) of the Act, the Court must impose a term of imprisonment in respect of each charge.

81 Your crimes having been committed after 1 February 2018, the standard sentence scheme applies to the offences. The standard sentence for murder is 25 years.

82 Pursuant to s 5A(1)(b) of the Act, the period of 25 years is the sentence for an offence of murder that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

83 Section 5(2) of the Act requires me to have regard to a number of specified matters in sentencing you. One of them, pursuant to part (ab), is the standard sentence. In addition, s 5B(2)(a) requires me in sentencing you to take the standard sentence into account as one of the factors relevant to sentencing.

84 The standard sentence scheme was the subject of consideration by the Court of Appeal in the decision of Brown v The Queen ('Brown').[18] The Court stated:

For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a 'standard sentence offence' must 'take the standard sentence into account as one of the factors relevant to sentencing'. This requirement:

• is to be treated as a 'legislative guidepost', having the same function as the maximum penalty;
• does not affect the established 'instinctive synthesis' approach to sentencing;
• does not require or permit 'two-stage sentencing'; and
• does not otherwise affect the matters which the court may, or must, take into account in sentencing.[19]

85 I have had regard to the standard sentence for murder as one of the matters to be taken into account in arriving at the appropriate sentence for you by the process of instinctive synthesis. In doing so, I have applied the law as explained in Brown. It is clear that taking into account only their objective factors, your crimes are very serious ones falling well above the middle range of seriousness.

86 Section 5B(4) of the Sentencing Act 1991 requires a court that sentences an offender for a standard sentence offence to state its reasons for imposing that sentence. Sub-section (5) requires me to refer to the standard sentence for the offence and explain how the sentence imposed by me relates to that standard sentence.

87 As I understand it, the applicable law does not require me in complying with the requirement of s 5B(5) to 'attribute particular mathematical values' to matters regarded by me as significant to the formation of a sentence that differs from the standard sentence.[20] It does, however, require me to 'identify fully the facts, matters and circumstances' which bear upon the judgment I have reached as to the appropriate sentence.[21] I have endeavoured to do that in some detail during these reasons for sentence.

88 The sentence I will pass upon you on each charge is higher than the standard sentence for the offence of murder. In arriving at those sentences, I can indicate that I have taken into account all of the matters I am required to consider under s 5(2) of the Act, including the standard sentence for murder. I have taken into account any mitigating factors which apply to your crimes. By the process of instinctive synthesis, I have arrived at the sentences I will shortly announce.

89 The requirement in s 5(2)(b) of the Act for me to have regard to current sentencing practices remains, but s 5B(2)(b) dictates that I:

must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.

90 This change in the law does not preclude me from having regard to sentencing principles established in previous cases.[22]

91 The Crown provided the Court, as an addendum to the outline of submissions on sentence, with a table of cases in which sentences have been imposed for murder as a standard sentence offence. I have had regard to these sentences in arriving at the appropriate sentences for you.

92 I make it clear that no individual sentence passed in any other case is in any way a precedent for the sentence I must pass.

93 I take into account in sentencing you the onerous conditions of incarceration which currently apply due to steps taken to prevent the spread of the COVID-19 virus within the prison population. Personal visits have been ceased since March 2020, educational and other courses have been suspended, and prisons in Victoria have intermittently been subject to lockdown procedures which have greatly reduced the hours prisoners are permitted to spend outside their cells. The time you have spent in custody in prison since your remand, therefore, has been more burdensome for you, and that will be the case for some indeterminate time into the future. I take that matter into account, although I note that while the future course of measures in respect of the virus is uncertain, the reality is that these more onerous conditions on account of the COVID-19 issue will be very unlikely to be in place for anything more than a small proportion of the sentence you will be required to serve.

Prospects of rehabilitation and the avoidance of a crushing sentence

94 One of the purposes for which a sentence may be imposed is 'to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated'.[23] The prosecution submitted that the Court should be 'guarded'[24] with respect to its assessment as to your prospects of rehabilitation. Whilst not expressly addressing the question of rehabilitation, Ms Skvortsova submitted that I should not impose a sentence of imprisonment so crushing as to extinguish any hope you might have of release during your life.

95 The difficulty with giving effect to that submission is obvious enough when your age and the gravity of your offending are considered. It is perfectly plain that a very long head sentence of imprisonment is called for in your case, bearing in mind the need for some cumulation between the sentences on the two charges if sentences of life imprisonment are not imposed. The non-parole period which I will be required to pass must also reflect the gravity of your crimes, and the purposes to be served by the overall sentence, and in addition, there is a provision of the Act which dictates a minimum period as the non-parole period depending on the length of the head sentence.[25] In view of your current age of 57 years, the long non-parole period required to be passed would have you ineligible for consideration for parole until you are quite elderly. If the result of that is that you go forward from today with the expectation that you will likely die in custody, that is an unavoidable by-product of your heinous crimes, and the age at which you carried them out.

96 The serious offender legislation dictates, as I have already mentioned, that in determining the length of the sentence I impose upon you on charge 2, I must regard the protection of the community from you as the principal purpose for which sentence is imposed. In light of the heinous nature of your crimes and the other circumstances of this case, protection of the community would have loomed large in the absence of the serious offender legislation in any event.

97 As I have already indicated, in my view your crimes are exceedingly serious instances of the crime of murder. Whilst of course it may be possible to contemplate even more heinous crimes, your crimes are clearly towards the very top end of the range of seriousness. Set against the background of your estrangement from Lindita and other members of your family, your depression and isolation, and your completely unwarranted feelings of resentment and anger towards Lindita and Veton, you settled upon an evil plan which almost defies belief. You decided to murder your daughter and her husband. You decided to do so with a handgun which for some unexplained reason you had access to. You determined to do so by surprising them on their return home from the weekend they had spent away celebrating their first wedding anniversary. You drove to the intended crime scene hours before the murders, casing the area and preparing yourself for action. You then lay in wait for the return of your victims. You had, at the least, some hours to seriously contemplate the awful plan you had fixed upon and to come to your senses and desist. You chose not to do so. I do not consider that the state of depression from which you may have suffered at that time had anything at all to do with driving your offending. This was no spur of the moment decision requiring a snap judgment. Nor was this a situation in which any condition from which you suffered could in any way have obscured from your embittered mind the enormity of what you were contemplating. What you planned was the cold-hearted, premeditated, vicious and cowardly murder of two defenceless people, one of them your own daughter. And those were the crimes you committed. There are no redeeming features at all to your offending.

98 Your crimes, as correctly acknowledged by your counsel, were committed in a setting of family violence. In Felicite v The Queen,[26] a case which concerned the murder of a domestic partner rather than a child, the Court of Appeal stated:

The taking of a domestic partner's life undermines the foundations of personal relationships and family trust, upon which our society rests. The sentence must reflect both the sanctity of human life and society's abhorrence of violence towards vulnerable and trusting partners, who could legitimately have expected the offender to be the protector from, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly, the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress. [27]

99 To my mind, the important reasons for which sentence must be passed in your case are just punishment, denunciation, general deterrence, specific deterrence, and protection of the community. You must be punished in a way which reflects the shocking seriousness of your crimes and amounts to an appropriate response to them. The sentence of this Court must make it perfectly clear that the Court deplores the sort of unforgiveable family violence in which you engaged. The lives of Lindita and Veton Musai were precious, as the many emotional and compelling victim impact statements make clear. You took their lives away deliberately. You acted in the clear knowledge of the wrongfulness of your conduct, and in circumstances where you had ample time to reflect upon what you were doing and desist. In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to take the life of a family member for reasons of anger, ill-will, or resentment, that such conduct will be met with very strong punishment. You yourself must be deterred from any future violent actions to which you may be disposed. As for the protection of the community, that purpose will largely be met by the imposition of the long sentence of imprisonment which is inevitable for offending of this seriousness. Notwithstanding that, the protection of the community is still a relevant consideration. As for rehabilitation, in light of your age and the long period of time in custody which the interests of justice will require you to serve in this case, it has little part to play.

Imprisonment for life or for fixed terms on each of the charges

100 Ms Skvortsova submitted that bearing all of the circumstances in mind, and having regard in particular to your pleas of guilty, sentences of life imprisonment would be inappropriate in your case. She further urged me to impose a non-parole period which would not be crushing. I have already dealt with that issue.

101 The Crown, on the other hand, advanced detailed submissions in support of the contention that sentences of life imprisonment should be imposed for each of your crimes. Ms Parkes submitted that both the objective gravity of your crimes and your moral culpability are of the highest order. She submitted that yours are crimes which shock the public consciousness. She submitted that the only appropriate sentences would be life imprisonment with a non-parole period being set.

102 I agree with the submissions of Ms Parkes. A sentence of life imprisonment has not-infrequently been described as a dreadful sentence reserved for dreadful cases. This is a dreadful case, as represented by each of your crimes. In my view, neither one of those crimes can be properly met with a sentence other than life imprisonment. I am driven to that conclusion by a consideration of the enormity of your offending, the extremely high level of the objective gravity of your crimes, your substantial subjective culpability, and the relevant purposes for which sentence must be passed in each case.

103 I have decided to fix a non-parole period. Of course, I sentence you on the basis that you may be required to serve every day for the remainder of your life in custody under the head sentence. The non-parole period, like the head sentence, must pay due regard to, and adequately reflect, the purposes for which you are to be sentenced for these crimes. It is obvious, therefore, that notwithstanding your age, and the real prospect that you will die in prison before the possibility of parole might ever materialise, the non-parole period must itself be very lengthy.

104 Indeed, upon the passing of a head sentence of life imprisonment, I am required by s 11A(4)(a) of the Act, unless I consider it is in the interests of justice not to do so, to fix a non-parole period of at least 30 years. I do not consider that it would be in the interests of justice not to fix a non-parole period of at least 30 years. The non-parole period I will fix will exceed the period of 30 years. The assessment of the length of a non-parole period will depend on all of the circumstances of each case. In this case, I will fix as the non-parole period the shortest term of imprisonment which, in my view, would meet the needs of justice in this case.

105 Osman Shaptafaj, for the murder of Lindita Musai, you are sentenced to be imprisoned for life.

106 For the murder of Veton Musai, you are sentenced to be imprisoned for life.

107 By operation of law, those sentences will be served concurrently. The total effective sentence is life imprisonment.

108 I fix a period of 35 years during which you will not be eligible to be released on parole.

109 I declare a period of 784 days up to and including yesterday, 21 February 2022, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.

110 I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your pleas of guilty, I would have sentenced you to be imprisoned for life with no non-parole period.

111 You have been sentenced as a serious violent offender for a relevant offence, namely, the second charge of murder. I direct that the fact that you have been sentenced as a serious violent offender on that charge be entered in the records of the Court.

[1] Lindita is referred to as Lindita Shaptafaj in the indictment. It is the preference of the Musai family that she be referred to by her married name.

[2] R v Verdins & Ors [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[3] You accepted during the plea hearing that in fact, your mother died in late 2017 or early 2018.

[4] First report of Nina Zimmerman [103].

[5] Ibid [104]-[105] (citations omitted, emphasis in original).

[7] This would seem to be a misapprehension held by Professor Ogloff. The evidence indicated that the doorbell was rung by Lindita or Veton.

[8] Report of Professor Ogloff [103]-[106].

[9] [2015] VSCA 325; (2015) 47 VR 395 ('O'Neill').

[10] Ibid [74]-[81] (citations omitted).

[13] O'Neill [82]; R v Anderson [1981] VicRp 17; [1981] VR 155, 159-60.

[14] DPP v Todd [2019] VSC 585 [42] (Kaye JA).

[16] [2021] VSCA 169.

[17] [2012] VSCA 140; (2012) 37 VR 594.

[18] [2019] VSCA 286.

[19] Ibid [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[20] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 [29].

[22] R v Brown [2018] VSC 742 [111].

[26] [2011] VSCA 274; (2011) 37 VR 329.