R v Wilio [2022] VSC 86

1 Norden Wilio, you have been found guilty of two charges of murder and one charge of attempted armed robbery, and have admitted prior convictions. The killing of your two victims occurred in the course of an armed robbery planned by you and Ali Ali ('Ali') upon Deniz Hasan, ('Hasan') your victim in charge 4. Ali himself was the unintended victim in charge 3, a charge of statutory murder pursuant to s 3A of the Crimes Act 1958.

2 Any charge of murder is serious, but your murder of Hasan was particularly so. In the course of an armed drug rip-off of Hasan, and having already accidentally shot your friend Ali with the sawn-off shotgun with which you were armed, you deliberately fired at Hasan from a matter of a few metres away, shooting him in the head, and causing catastrophic injuries which quickly led to his death. On the concession of your counsel, Mr Chadwick QC, your shooting of Hasan can be viewed as being entirely gratuitous. On any view, this was an exceedingly serious instance of murder.

3 On the afternoon of 4 March 2019, Ali and an associate, Ibrhim El Ali ('Ibrhim') made a decision to purchase some cannabis and engaged Ibrhim's brother, Ali El Ali ('AEA'), to liaise with Hasan, who was a cannabis dealer. AEA, via a series of messages back and forth on an encrypted application, arranged to meet Hasan in Huntly Court, Meadow Heights.

4 Hasan drove to the pre-arranged location with his associate, Josip Civcija ('Civcija'). Ali and Ibrhim were driven to Ellam Court, Meadow Heights, close to Huntly Court, by a friend named Stan Bakopoulos ('Bakopoulos'). They walked through a paddock before Ibrhim met Hasan in Huntly Court as Ali hid nearby. Hasan provided Ibrhim with a small sample of cannabis. Ibrhim noticed a large amount of cannabis in the boot of Hasan's vehicle.

5 Ibrhim provided the sample to Ali, informing him of what he had seen in the boot of the vehicle. The two men returned to Bakopoulos' vehicle. Ali requested that Bakopoulos drive them to an address in Broadmeadows which was your home address. Ali attended inside for 15 to 20 minutes before returning with you to the car. The evidence accepted by the jury would indicate that you were armed with a sawn-off, double-barrelled shotgun which in all probability was loaded by the time you got into the car. You had the firearm secreted under a jacket you were wearing. Bakopoulos drove you, Ali and Ibrhim back to Ellam Court. At the same time, Hasan arrived in the paddock to the south of Ellam Court.

6 You and Ali approached Hasan. An argument occurred between Ali and Hasan, during which you produced the shotgun. Ali briefly took possession of the gun, showing Hasan that it was loaded. Hasan fled the scene towards Huntly Court. He was pursued by you and Ali. As he neared Huntly Court, Hasan was heard by Civcija to say, 'Relax man. Relax. You go your way. I'll go my way'.

7 On his arrival back at Huntly Court, Hasan approached his vehicle, telling Civcija, who was out of the vehicle, to get in the car. Civcija got into the front passenger seat. He then observed a person holding a gun coming from the paddock. This person, who on the evidence must have been you, asked Civcija to get out of the vehicle. He did not do so. Civcija observed a second person, who was Ali, emerge from the paddock. Hasan tried to get into the driver's seat but was dragged from the car by you and Ali and taken in the direction of the footpath. Civcija observed Hasan being restrained by the arms with each of you and Ali holding one arm. During the course of the struggle you struck Hasan to the head with the shotgun.

8 On the prosecution case at the trial, you fired a deliberate shot from the shotgun, intending to kill or cause really serious injury to Hasan, but struck Ali by mistake. You were found not guilty of charge 2 on the indictment which charged common law murder based on the concept of transferred malice. The case against you was put on an alternative basis pursuant to 3A of the Crimes Act 1958, (charge 3) the foundational crime being the armed robbery you and Ali had planned and commenced to carry out. In this respect, the case put was that you produced and brandished the firearm during the course of the armed robbery, the firearm discharged, striking Ali, and your conduct was a cause of his death. The jury found you guilty of murder on this basis. I sentence you on the basis that the firearm discharged during the course of the struggle, and that you did not deliberately fire that shot, but that your conduct in producing and brandishing the loaded shotgun during the struggle was a cause of Ali's death.

9 Ali was struck to the torso by the first shot fired from the shotgun. A few seconds later, and in the knowledge that your friend had been accidentally shot, you fired a deliberate shot at Hasan from a distance of no more than a few metres. The shot hit Hasan to the head. Hasan fell to the ground near where he was shot, having suffered catastrophic injuries which led to his rapid death. Ibrhim witnessed these events from some distance away in the paddock. Civcija observed events from the passenger seat of the vehicle. Residents in the area heard two shots in quick succession. One eye witness, Fatima Mahfouz actually observed you firing the second shot.

10 Civcija went to the aid of Hasan. You helped Ali from the scene. At some stage before your arrival back in Ellam Court, you must have happened upon an abandoned supermarket shopping trolley, because you were observed by a witness in Ellam Court wheeling along the seriously injured Ali in the trolley. Ali was crying out in pain and asked you to leave him there, but you did not do so. You continued to the end of Ellam Court and turned left into Rokewood Crescent. You crossed the road, and were observed on CCTV footage running along on the north side of Rokewood Crescent with Ali in the trolley. You ran as far as Morris Court, then turned right and proceeded towards the end of the Court, to a point outside number 6 at which the trolley tipped over, spilling your mortally wounded friend onto the ground where he remained, screaming and moaning in pain.

11 Upon your arrival at this location, you climbed over a fence and rang the doorbell of a house at the end of the Court with which you had a connection. Your friend Samaher Ayache ('Ayache') owned the premises. Murwan Malas lived at this address as a tenant. You asked to speak to Ayache. She was not there so you insisted on Mr Malas calling Ayache, saying, 'If you love God, please call'. You informed him that you could not use your telephone because it was being traced. Mr Malas called Ayache and then handed his telephone to you and you spoke to her briefly, asking her to come to her house in Morris Court. While you were in his company, Mr Malas observed you to look worried and scared. At one point when a helicopter was flying overhead, you said, 'Fuck, the cameras are here'. When Ayache arrived there in a car driven by her sister, Samar El Hussein ('El Hussein'), you told Ayache, 'I just need you to help me get out of here'. You then insisted that El Hussein drive you away. At your direction, she drove the vehicle to Tawonga Street, Broadmeadows, a distance of about 3.5 km. At one point on the way, you slid down in the front seat of the vehicle when a police car came within sight. Before leaving the car, you told El Hussein not to say anything or else you would hurt her.

12 At some point whilst in Morris Court, you disposed of two shotgun cartridges and a pair of Ansell gloves in a drain outside number 6, where they were later recovered by police.

13 Police and ambulance paramedics arrived at the scene of the shootings and at the secondary scene where Ali was found. Hasan was unconscious and could not be revived by paramedics. Ali was initially conscious and spoke to the police. He had obvious visible injuries with part of his internal organs protruding from his body. He lapsed into unconsciousness and then could not be revived. He died at the scene in Morris Court.

14 Post mortem examinations revealed that the shotgun blast to the torso of Ali had entered on the left lower anterior chest wall, causing significant internal injury to the lung, left ventricle of the heart, hemidiaphragm, stomach, spleen, and major internal abdominal blood vessels. There was significant bleeding into the chest and abdominal cavities. The mechanism of death was exsanguination, meaning that he bled to death. The cause of death of Hasan was a shotgun wound to the head, with the wound situated on the right side of his face, involving pellet abrasions across the right side of his head and neck and a spread of approximately 24cm.

15 During a crime scene examination of Huntly Court, your black Raiders cap was located. In a drain in Morris Court, police recovered the pair of gloves and two shotgun cartridges mentioned earlier. Examination of the Raiders cap and one of the gloves found in the drain revealed the presence of your DNA. The shotgun used in the shootings was never recovered. I am satisfied beyond reasonable doubt that you disposed of it in some manner.

16 You were arrested at your home in Broadmeadows on 26 March 2019. You provided a 'no comment' interview.

17 You gave no evidence during your trial. Your defence was conducted on the basis that Ali had the shotgun at all relevant times. It was put on your behalf that it was Ali who shot Hasan, and in some way, that he then managed to accidentally shoot himself whilst placing the shotgun into the waist band of his pants. There was no evidence which in any meaningful way supported this far-fetched explanation. Not surprisingly, it was rejected by the jury.

18 Mr Chadwick submitted that there was an absence of any aggravating circumstances following the shootings. By this he meant that having shot Hasan, you left the scene without applying any additional violence or continuing with the robbery plan. That may be so, but the reality was, you had just deliberately shot a man in the head, and it was in your interests to leave the scene as soon as possible. No further violence against him would have made any sense, and the absence of any such further violence is hardly a mitigating feature. The fact was, you left Hasan for dead and left the scene immediately.

19 Mr Chadwick went further. He submitted that in leaving the scene quickly with Ali and travelling to Morris Court with Ali in the shopping trolley, you were actually seeking assistance for him from your friend who you believed lived in Morris Court. Mr Chadwick seemingly put this forward as a mitigating feature of your conduct.

20 Having considered your conduct from the time of the shootings, I cannot see that it could be sensibly viewed as having been significantly motivated by a desire to help your stricken friend. You knew that you had shot him with a shotgun from close range, and it must have been obvious to you from a very early time after that event that he was very seriously injured, and in need of emergency medical treatment. Rather than seeking to provide any immediate assistance to him, or calling 000, or leaving him at a location in Huntly Court or Ellam Court where assistance might promptly be provided to him, you took him on an extraordinary, and for Ali, agonising journey for a distance of about 800 metres, through a paddock where apparently the shopping trolley was located, along Ellam Court past a man who would have been in a position to summon assistance, along Rokewood Crescent and into Morris Court where in your haste, you tipped over the shopping trolley and spilled Ali out onto the ground. Your reason for going to that location was then revealed. It was not to get help for Ali, although I accept that you did ask Mr Malas to call an ambulance. It was to get someone to drive you away from the scene so that you would not be found by the police.

21 I am satisfied that your actions from the time of the shooting were motivated principally by your desire to avoid responsibility for your crimes. This is not an aggravating circumstance, but merely a background fact, but were it necessary for me to be so, I would be satisfied beyond reasonable doubt about this conclusion. You knew that if Ali was left in Huntly Court or Ellam Court, he would be found by the police, and that if he remained alive, he may be able to identify you. So you sought to remove yourself and Ali from any location where the police could find you. You hoped for assistance from your friend. By the time Ayache arrived to help you, there was no longer any prospect of removing the critically wounded Ali any further. So you focused entirely on yourself, which in my view was where your concerns had been all along. You hastily hid incriminating items in your possession, then, leaving Ali on the ground and moaning in pain, you fled the scene, leaving him for dead.

22 Insofar as it was put on your behalf that Ali encouraged you to leave the scene with him by saying, 'Let's go', in respect of which assertion the prosecution maintained there was no evidence that it was Ali who had said these words, even if it was true that Ali said them, you knew the state he was in, and that he was almost completely helpless. Had you truly been concerned for his welfare, and less concerned for your own, you would have ignored what he said, and tried to get assistance for him.

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

23 Based on evidence led on your behalf from a forensic psychologist Pamela Matthews, Mr Chadwick submitted that a number of limbs from R v Verdins & Ors[1] should be considered to be enlivened in your case.

24 Ms Matthews provided a report to the Court dated, on its face, 28 January 2021, although the correct date was actually 28 January 2022.[2] The report indicated that Ms Matthews examined you over a secure video conference hosted by the Melbourne Remand Centre on 14 and 17 January 2022 for a period of three hours. She also interviewed your parents and a family friend on 20 January 2022. She had access to an array of material, including the prosecution opening and an expert report of another psychologist Warren Simmons, dated 1 October 2020, to which I will later refer.

25 Ms Matthews summarised your psychosocial history, including your educational and employment history. She summarised what was revealed in the family interviews, including the claims that you had struggled in your education and had exhibited an ongoing problem with hyperactivity.

26 Ms Matthews carried out some psychometric testing of you, encompassing some aspects of the Wechsler Abbreviated Scale of Intelligence-II ('WASI-2') and two risk assessment tools, the Inventory of Offender Risks, Needs, and Strengths ('IORNS') and the Violence Risk Assessment Guide ('VRAG-R').

27 I say some aspects of the WASI-2 because that test comprises two sections each encompassing two subtests, so therefore four subtests in total. The first section assesses intellectual functioning in verbal comprehension ('VCI'). This section comprises a Vocabulary subtest measuring crystallised intelligence, fund of knowledge, learning ability, long-term memory, and degree of language development, and a Similarities subtest measuring verbal concept formulation and reasoning. The second section assesses intellectual functioning in perceptual reasoning ('PRI'). This section comprises subtests of Block Design, which assesses the ability to analyse and synthesise abstract visual stimuli and a Matrix Reasoning subtest involving fluid intelligence, broad visual intelligence, classification, spatial ability, knowledge of part-whole relationships, simultaneous processing, and perceptual organisation.

28 Because of the circumstances under which she assessed you, which prevented her being able to screen share items with you, Ms Matthews was unable to perform any of the testing in the PRI section of the test. The test administered upon you, therefore, was incomplete. In her report, Ms Matthews stated:

Administration of all four subtests is a means of quickly estimating an individual's verbal, non-verbal, and general cognitive functioning. WASI-II has two composite scores that estimate general intellectual ability.

29 No view was expressed in the report as to the sufficiency of the administration of only part of the test in estimating intelligence.

30 I note that Ms Matthews' assessment of you, and such testing of intellectual ability as she was able to perform, were carried out in English without the use of an interpreter. This is in spite of the fact that during your trial, you sought and were provided the use of an interpreter throughout, for reasons which were explained in the running.

31 Ms Matthews indicated that your result on the VCI was a score of 73. This equated to mild intellectual disability according to DSM-5,[3] she asserted. She expressed the opinion:

The writer believes Mr Wilio's reported scores are an accurate indication of Mr Wilio's functioning being consistent with family reports of Mr Wilio's learning difficulties, delayed bedwetting, and lifelong learning and social difficulties. Mr Wilio was observed to have a reasonable English vocabulary but to be concrete in his thinking and problem solving.[4]

He presents with intellectual deficits as assessed by standardised testing, within the limitations of COVID-19 access to prisoners. His indicated verbal IQ is 73, falling two standard deviations below the mean within the margin of error (65-75). Further, he presents with the following adaptive behaviour deficits, reported by family including immaturity in social interactions and judgement, difficulty perceiving peer's social cues ("intent"), difficulties with emotional and behavioural regulation and vulnerability to social manipulation.[5]

33 Having asserted in the report that you suffer from mild intellectual disability as per DSM-5, Ms Matthews went on to discuss World Health Organisation ('WHO') and Disability Act 2006 (Vic) considerations of intellectual disability, and then noted:

While DSM-5 might recognise Mr Wilio as having an intellectual disability, WHO-ICD11 and the Victorian legislation place Mr Wilio in the shadowlands of a mild to borderline intellectual impairment. "People with borderline intellectual functioning or an IQ between 70 and 85, do comprise a vulnerable group..."[6]

34 Ms Matthews touched on your parents' description of you as exhibiting long-term difficulties concentrating and sitting still, and seemingly based largely on that, arrived at a further diagnosis that you would meet the DSM-5 diagnostic criteria for attention deficit hyperactivity disorder ('ADHD'). She also decided that you would at the time of your offending have met the DSM-5 diagnostic criteria for Cannabis Use Disorder.

35 As for the risk assessment tools, the profile derived from IORNS indicated that your overall and historical risks are higher than those of your peers. Your current or dynamic risks are the same, and your protective factors lower than those of your peers. Turning to the VRAG results, these indicated that your current estimated risk of violent re-offending is higher than the naturally occurring rate but less than the average recidivism rate for violent offenders.

36 Ms Matthews noted that her report presents a 'somewhat different picture of Mr Wilio than the report prepared by Mr Simmons'.[7] She explained this by noting that Mr Simmons did not attempt to cognitively assess you and had not had the opportunity of speaking with your parents.

37 In the concluding stages of her report, Ms Matthews opined:

It is the writer's view that Mr Wilio's cognitive and social deficits combined with the impulsivity associated with Attention Deficit Hyperactivity Disorder would have seriously undermined Mr Wilio's capacity to consider: the wisdom of leaving home with his friend on the night of his offending; his capacity to socially and intellectually read his friend and others intent; his capacity to read the situation; and his capacity to problem solve in the moment of heightened tensions between him, and others that led to the events before the Court.[8]

38 Ms Matthews stated her view that your cannabis use also played a part in your offending insofar as charge 1 was concerned, as providing the underlying reason for you to leave your home with a friend to rob another of cannabis.

39 Finally, Ms Matthews asserted that whilst you appear to be managing in custody, your cognitive and social deficits:

will continue to be a source of social vulnerability in the always socially uncertain environment of prison life, he is likely to face times in custody that are very onerous.

40 Ms Matthews gave sworn evidence before me in which she expanded upon the above opinions. When asked to put the verbal IQ of 73 into perspective, she made the point that you 'are very concrete'. On my perception of it, she then went from considering what may be the general and likely effects upon a person of such an IQ on reasoning processes, to positing views about what your mode of thinking actually would have been on the night in question. So, for example, when asked to express a view on how your intellectual capacity may have impacted upon your ability to make a decision when Ali attended at your house before your crimes, she said:

Look, 96 percent of the population function better than he does. So on that night, he would have found it very, very - other than going - the immediate thing of going out with friends to do something, he hasn't stopped and I don't think he's got capacity to stop and anticipate and evaluate the risks that might occur in leaving the house with his friend to go and pick up cannabis or do a cannabis heist. And I think once, when he's in that situation, again he is - 96 percent of the population had more horsepower in being able to anticipate, to evaluate and to problem solve their way through that matter as it all went awry.[9]

41 Going further, Mr Chadwick then asked Ms Matthews about the point in time when there was a struggle between Ali and Hasan. He asked her, 'Now what's Mr Wilio's position with regard to making a decision at that point of - the appropriate decision?' and she answered:

Well you're in a situation of - of I guess high tension, high levels [of] arousal and very concrete thinking and he would not have been able to, like the rest of the population, been able to generate other possibilities at the pace that all that was happening...Would been what, what, what - what came to mind and came - the immediate solution was the only solution.[10]

42 In response to the query whether you are intellectually disabled, Ms Matthews described it as a line-ball problem. You are, she said, in a 'shadow' area of whether you suffer from mild intellectual disability or are in the borderline area.

43 When asked to indicate how your intellectual standing would have impacted upon your day to day life and decision making processes in March 2019, Ms Matthews noted your very concrete thinking and 'difficulty generalising from one lesson learned past in life to a new situation', seemingly equating you to those with mild intellectual disability who, upon having been taught how to operate a washing machine, may not be able to generalise that skill to operating a different type of washing machine.

44 She also expanded on the difficulties you may have in prison in light of your intellectual abilities.

45 On the matter of remorse, which she had touched upon in her report, Ms Matthews said that she thought you were genuinely sorry that people had died and their families had been affected, but, in light of the fact that you were still protesting your innocence, you had shown only qualified remorse.

46 In cross-examination by Mr Gibson, Ms Matthews was confronted with some of the apparent differences between her account of your intellectual level, and what was contained in the report of Mr Simmons. She put down the differences to Mr Simmons' inadequate opportunity to assess you relative to hers, the fact that Mr Simmons had not spoken to your family, and 'image enhancement' on your part when speaking to Mr Simmons. The fact of your having completed 3 ½ years of an apprenticeship as a motor mechanic and having held down a number of jobs were not matters which swayed her from her opinion as to your intellectual level.

47 In respect of the fact that she had only been able to do half of the WASI-2 test, Ms Matthews stated that in her view, had she carried out the full test, it would not have made much difference, certainly not sufficient to elevate your score to one indicating normal intelligence. She did concede that your IQ may end up being in the 80s.

48 As for her ADHD diagnosis, she refuted the contention that she should have used some of the available tests and scales for diagnosing that disorder.

49 In response to some questions from me, Ms Matthews indicated that the borderline range of intelligence is between 70 and 80. Below 70 is the point where intellectual disability is deemed to commence. She maintained her view that even had you been able to perform the full WASI-2 test, you would not have ended up above the borderline range.

50 Ms Matthews indicated that in her view, there was nothing about your level of intelligence which would have impaired your ability to fully comprehend the seriousness of leaving your home in possession of a shotgun and ammunition. She opined, however, that you would not have been able to think of alternatives. When it was put to her that you would have been perfectly able to simply say no to your friend, Ms Matthews referred to your parents' indication that you are a person prone to going along with anybody and desperate to help your friends as a reason for your doing as you did.

51 Ms Matthews indicated that she was the first and only person in your life to diagnose you as being mildly intellectually disabled.

52 As for her concerns about your ability to cope in prison, Ms Matthews conceded that nothing has yet materialised to support those concerns.

53 In re-examination by Mr Chadwick, Ms Matthews highlighted the matter of your apparent bedwetting until a late age as being an indicator of intellectual disability consistent with her findings.

54 Your father Bachar Wilio gave evidence during the hearing. He gave a detailed account of your educational and social history, dwelling in particular upon your troubled history of primary and secondary education in Melbourne, Qatar and Dubai. His evidence pointed to your behavioural, learning and other difficulties, and then to difficulties you also had in your employment. In the circumstances, it is not necessary to summarise your father's evidence more than this. I make the observation that the evidence of your father would indicate that notwithstanding the somewhat disrupted nature of your childhood, you come from a loving and supportive family.

55 In his detailed oral submissions before me, and in a written outline addressing the implications of your asserted intellectual disability, Mr Chadwick submitted that the first, third and fifth limbs in Verdins are enlivened in your case. He submitted that your moral culpability should be considered to be reduced, although such reduction would be less significant in respect of charge 4 because of its seriousness. He submit further that general deterrence should be moderated, although less so in the case of charge 4 for the reason already mentioned. He submitted that the fifth limb is also enlivened as your cognitive deficit would mean that imprisonment would weigh more heavily on you than on a person without your disability.

56 In advancing these submissions, Mr Chadwick relied upon the assessment of your level of cognitive functioning by Ms Matthews. He submitted that there was nothing inappropriate or deficient about her psychometric testing of you or the overall conclusions she reached. He urged me to accept her evidence. In respect of the fifth limb of Verdins, Mr Chadwick also relied to an extent on the diagnosis of you as suffering from ADHD.

57 Mr Gibson QC, who appeared with Mr Hayward for the Crown, challenged the applicability of any of the limbs of Verdins. He emphasised the fact of the onus being on you to establish the applicability of any limb of Verdins, and the requirement for the Court to rigorously evaluate the evidence. He submitted that the evidence of Ms Matthews and her conclusions were inadequate for a number of reasons spelt out in detail in his submissions. In short, he submitted that her reliance upon only 50 percent of the already abbreviated intelligence test carried out was unsatisfactory, that her conclusion conflicted with the views of Mr Simmons set out in his report, and that there were concerns raised by your apparent untruthfulness when speaking to Mr Simmons, although much of what you said to him could not be explained away as being the product of 'image enhancement'. Mr Gibson submitted, further, that Ms Matthews' conclusion as to your intellectual level did not sit at all comfortably with your proven work history and the way in which you yourself described your education. He submitted that it was hard to see how, even if it was the case that you were a concrete thinker, that that could have had an input into your crimes. No great degree of mental sophistication was required by you in weighing the options when your friend Ali came to your house and discussed his plan to rob Hasan of his cannabis. This was an unsophisticated plan because it was a simple plan, motivated by greed. As for ADHD, Mr Gibson submitted that it was difficult to see that that condition, if you did suffer from it, had any bearing on your offending. Turning to the evidence given by your father, Mr Gibson submitted that it would not 'improve upon the inadequate evidence of Ms Matthews'.[11] He submitted that if the Court rejected the evidence that you are mildly intellectually disabled, the limbs of Verdins would fall away one after the other.

58 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[12] 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.[13]

59 At the very heart of the question whether any of the limbs of Verdins should be considered to be enlivened in your case are the opinions of Ms Matthews. Central to those were the results of her psychometric testing of you and the VCI IQ score obtained. It is true that there was other material upon which she relied, namely, what you told her, and the things she was told by your parents when she interviewed them, but in my view, it is clear that her psychometric testing of you was a fundamentally important part of her overall assessment leading to her opinions. Indeed, it was described by Mr Chadwick as being the 'foundation'.[14] In those circumstances, any deficiencies or inadequacies of her psychometric testing may be sufficient to call into question her opinions.

60 The WASI-2 testing she carried out comprised only one half of the usual four subtests, for reasons she explained. Whilst I accept that there were limitations imposed upon Ms Matthews which were not of her making, and she no doubt considered that the limited testing she was able to perform was the best which could be managed in the circumstances, that does not mean that the testing was of an appropriate level upon which to base the important opinions she expressed. In my view, it clearly was not.

61 Ms Matthews' assessment of you should be seen in the context of the circumstances surrounding it. Those circumstances include the following matters, all of which were well known to Ms Matthews:

(a) You had recently been found guilty of a charge of attempted armed robbery and two charges of murder and were awaiting a plea hearing;

(b) Ms Matthews had been engaged to assess your cognitive functioning and express opinions upon matters which may be of great importance in your plea hearing;

(c) You were 26 years of age at the time of the assessment, and had never been diagnosed with any intellectual disability or deficit;

(d) You had been educated to the year 11 level;

(e) You had a significant history of employment, including having completed 3 ½ years of an apprenticeship as a motor mechanic;

(f) You had lived independently in the community for some years; and

(g) You had within the preceding 16 months been assessed by another experienced forensic psychologist who had concluded that you showed no difficulties with your intelligence and were a 'generally articulate man'.

62 In my view, the psychological assessment carried out by Ms Matthews was a very important step in the context of your plea hearing, as the reliance placed upon the opinions of Ms Matthews by your counsel makes plain. Ms Matthews' assessment of where you may be seen to fit on the intellectual scale was a critical matter, as she well knew. In those circumstances, whilst it is accepted that at the time she carried out her assessment, there were practical impediments to her carrying out a more thorough psychometric examination of your intelligence, it was important that she exercise care and practise rigour in carrying out the testing. The practical impediments would provide no excuse for a lack of such rigour.

63 It is difficult to see how the performance of half, only, of what was already an abbreviated test of intelligence could have been considered to be satisfactory. There is no evidence before the Court which would indicate that the performance of only the VCI portion of WASI-2 could properly be viewed as providing a reliable assessment of your intellectual functioning. As Ms Matthews herself acknowledged, her expectation was that had she been able to carry out the other units of WASI-2, this would have led to an increase in the IQ score derived. She doubted that the increase would have been substantial, but her protestations in that regard struck me as being somewhat speculative. The reality is, it is impossible as things stand for the Court to have any clear idea of what your full scale IQ might be. Even the score of 73 upon which it seems Ms Matthews was content to act, was not in the range of mild intellectual disability. Were that score to be inflated by the addition of the results of testing on the other two subtests, who is to say what your full scale IQ may have been found to be? As the evidence of Ms Matthews made clear, the result could have been taken well out of the range of intellectual disability.

64 Mr Chadwick made the point that Ms Matthews acknowledged in her report that she had performed a part only of the WASI-2, and that what was generated was not a full scale IQ, but rather, a figure based only on the VCI; a verbal IQ, as it was put. That may be so, but on a reading of the report, and an assessment of her evidence, it seems to me that the reality is that Ms Matthews, having obtained that figure from the VCI components of the test, seemed content to act upon it as though it was a reliable indication of your actual IQ.

65 I acknowledge that the result of the WASI-2 testing was not the only thing relied upon by Ms Matthews in her assessment of your intellectual level, her overall assessment being based on a combination of the psychometric testing of you and her conversations with you and your parents, but the language of her report made it clear that the WASI-2 result was central to her thinking, being seen by her to be consistent with family reports and her own observations of you. It provided the foundation. Other material was found by her to be consistent with that foundation.

66 In the overall circumstances, I do not consider that there is any acceptable evidence indicating in a clear way what your intellectual level is. There is no proper basis for thinking that the VCI should be seen as a reliable indicator of your overall level of intelligence. In my view, Ms Matthews should not have viewed it as such. That she did so raised substantial doubts upon her opinion as to your level of intellectual functioning. I do not accept her opinion in that regard. Therefore, the further opinions of Ms Matthews purporting to comment on your way of thinking or behaving at the time of and in the lead up to your crimes based on your intellectual level cannot be accepted.

67 For completeness, I would make this further observation. Even had I accepted the evidence of Ms Matthews about your level of intellectual functioning, I would have had great difficulty accepting that your level of functioning could have had the impact on and connection with your behaviour attested to by Ms Matthews. A person of the level of intellect she attributed to you could have been in no doubt of the folly in leaving his house armed with a sawn-off shotgun, intent on involvement in a drug rip off, at the suggestion of his friend. That was not a situation requiring great reasoning skills or contemplation. Even a person of limited intelligence and prone to concrete thinking would be well able to process the options, the obvious and preferable one of which would be to decline the offer. As to what then followed, these were not situations calling for detailed reading or interpretation of the unfolding events. What arose in Huntly Court was no more than any person of even the most modest intellect would expect may arise in light of the plan which had been hatched involving the use of a loaded firearm to carry out a serious crime of violence.

68 I fail to see that even an acceptance of Ms Matthews' evidence about your intellectual level would have warranted a reduction in your moral culpability for any of your crimes or a diminution in the importance of general deterrence. In my view, the causal connection between your mental condition and your crimes would not have been established satisfactorily to warrant the enlivening of Verdins principles 1 and 3.

69 Insofar as Ms Matthews, relying upon her diagnosis of you as suffering from Cannabis Use Disorder, asserted that your cannabis use played a part in your offending in that 'it provided the underlying reason to leave his home with a friend to rob another of this substance',[15] I do not accept that contention. Hasan was selected by Ali and in the end by you as a soft target for a serious armed robbery. He was believed to be in possession of a large quantity of cannabis which would be of substantial value, of which he could be readily relieved by force without the realistic concern that he would go to the police. Such a crime may have an attraction to many people who may not even be drug users themselves. There is no reason at all to suppose that your cannabis use played any part in your offending. Indeed, it is fanciful to suggest that you would have involved yourself in a serious armed robbery simply to obtain cannabis for your own use.

70 As for the fifth limb, what was submitted on your behalf was that imprisonment will weigh more heavily on you than it would on a person without your disability, in light of your cognitive and social deficits. It was submitted that you are vulnerable to manipulation and bullying and would encounter difficulties as a result. The point was made that your restlessness has led to you being in a single cell.

71 The fact is that in the almost three years you have thus far spent in custody, the concerns expressed by Ms Matthews upon which the submissions of Mr Chadwick were based have failed to materialise. Such difficulties as you have had in prison, at least as far as I am able to assess them, have had nothing to do with your intellectual level or social deficits. As for your being in a single cell, it is difficult to view that as being a disadvantage in the circumstances. Even had I been prepared to accept the evidence of Ms Matthews as to your intellectual level, the evidence would have fallen short of satisfying me that the fifth limb of Verdins would be enlivened.

72 In the end, I have concluded that none of the limbs in Verdins is enlivened in your case.

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

73 I turn now to the nature and gravity of your offences and your culpability and degree of responsibility.

74 You were enlisted by Ali to leave your home and take part in an armed drug rip off with the use of your loaded sawn-off shotgun. As I have mentioned already, Hasan was identified as a soft target to be preyed upon by you and your friend. The selection by you of a loaded shotgun for use in the crime was a serious aggravating feature relative to some crimes of armed robbery in which a much less dangerous form of weapon might be used. There was a high degree of risk and danger involved in your planned armed robbery of Hasan; to Hasan, to members of the public, and, as the tragic events of that night illustrate, to Ali as well. Your attempted armed robbery of Hasan, carried out in a quiet suburban street in close proximity to many members of the public whose lives could have been imperilled, was a serious crime.

75 Turning to the murder of Ali, this of course was not your purpose, but you are criminally responsible for his death, which occurred in the course of an armed robbery which itself entailed a high degree of danger, and as a result of conduct by you in producing and brandishing the shotgun which was dangerous and outrageous, with a very high level of risk associated with it. The death of Ali, while not intended by you, cannot be viewed as a mere accident. As the jury verdict makes plain, it was caused by your criminal actions. This was itself a serious crime.

76 As for your shooting of Hasan, it was described by the Crown in their outline of submissions as brutal, callous and particularly savage and in Mr Gibson's oral submissions as wanton and totally unnecessary. It is impossible to disagree with any of those descriptions. At the time of firing this shot, you knew that the armed robbery in which you were involved had gone awry. Your friend had already been shot by the firearm you were wielding. Any struggle between you and Ali and Hasan had ceased and there was some distance between you and Hasan. He presented no threat at all to you. For reasons which are difficult to fathom, you pointed the shotgun towards him from a matter of a few metres away at most and pulled the trigger, shooting him in the side of the head. This action by you, as Mr Chadwick sensibly conceded, was entirely gratuitous. To shoot a defenceless man in the head from close range with a shotgun for no apparent reason leading to his death as almost a postscript to a planned armed robbery could only be viewed as being a very serious instance of the crime of murder.

77 Mr Gibson submitted that I could be well satisfied that you intended to kill Hasan when you fired that shot, in light of the circumstances of the shooting. Mr Chadwick submitted that it would make no difference to sentence whether your intention was to kill or to cause really serious injury. I agree. The jury were satisfied beyond reasonable doubt that you harboured a murderous intent at the time of firing that shot. On any view, whatever your precise intent at the time, your crime was a shocking and brutal one, deserving of strong condemnation and condign punishment.

78 In my view, your moral culpability for the crimes of which you have been found guilty is high.

79 You are 26 years old, having been born in Sydney on 4 August 1995. You are the eldest of four sons born to your parents, who moved from Syria to escape the war raging there. Your family moved to Melbourne when you were young, and you commenced your schooling here. When you were about 7, your family moved to Qatar where you lived for some years. Next the family moved to Dubai where your father was a software developer. You were educated to the year 11 level in Dubai. Your father told the Court of some difficulties you had in your education. Your parents did their best to assist you in these, sometimes providing you with private tutors. The family returned to Australia in 2013 when you were about 18.

80 Notwithstanding the difficulties your father indicated you had maintaining employment, you have in fact had a reasonable employment history. You completed 3 ½ years of an apprenticeship as a motor mechanic, carrying out the educational component of that, apparently with some difficulties, at Kangan TAFE. You did not finish your apprenticeship, it having been interrupted by your marriage in the latter stages. For a time, you and your wife lived in Tasmania. Upon your return here, you worked as a motor mechanic, then were involved in the running of your father-in-law's landscaping business for two years. Your relationship with your wife deteriorated and you separated. You did further work as a mechanic before later working as a plasterer. At the time of your offending, you had been unemployed for 18 months.

81 During your adult life, you have been an occasional user of alcohol, and have also used cocaine and cannabis. You claim to have been a cannabis user at the time of your offending.

82 Prior to seeing Ms Matthews, you had never been diagnosed with PTSD, intellectual disability, or any other cognitive or mental issue. You are currently on medication which was prescribed to you in prison.

83 You have a limited criminal history consisting of convictions for obtaining property by deception (2 charges), dealing with property reasonably suspected of being proceeds of crime and possessing an unregistered handgun. On 29 June 2017 at Broadmeadows Magistrates' Court, you were made subject to a 12 month community correction order ('CCO') with 300 hours of unpaid community work for all of the charges. You subsequently breached the CCO by failing to abide by conditions and failing to complete any of the hours of work. You ended up serving six months' imprisonment. The CCO had come to an end by the time of the current offending.

84 The dishonesty offending of which you were convicted was quite serious, but is of an entirely different nature than your current offending. As for the firearms offence, your explanation for possession of the handgun was that you found it in a shoebox in some bushland, complete with the ammunition, and then kept it in your bedroom. It was apparently rusty and not operational. There is no suggestion you ever used the gun. Mr Gibson made the point that even a non-functioning handgun is capable of being used as a weapon. This is true. The charge of possessing an unregistered handgun is certainly of some relevance in view of your use of a firearm in the current offending. That being said, your prior convictions would have little if any impact on sentence.

85 The Court received victim impact statements from Josip Civcija, Perry Hasan, the sister of Mr Hasan, Aya Jouri the mother of Ali Ali, and Sef Ali, the brother of Ali Ali. The statements 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 victims.

My friend and I knew each other for 20 years and did everything together. I miss him terribly and feel a great loss. His death was sudden and horrible. I will never be able to forget how he passed away in my arms. The nature of his death will always be with me.

87 Ms Hasan's statement spoke volumes as to her love for her brother and the hole left in her life by his loss. She said:

Words cannot express the amount of grief and suffering that my whole family, friends and I have endured and [are] still enduring and will no doubt endure until the end of time. The horrific act of violence, committed by Norden Wilio on the 4th of March 2019, causing my brother's death will continue to hurt and haunt my family forever. My brother was an amazing person in so many ways. He was caring, kind, smart and very funny. But above all this, he was a much loved father of two young girls, a loving and respectful son to my parents and the best big brother, brother-in-law and uncle that anyone could have wished for.

88 The mother of Ali Ali, in speaking of her terrible loss, described her son as her world, and said, 'The world is dark without him'.

89 Sef Ali in his statement pondered how he would be able to live the rest of his life without his brother, who meant the world to him. He also remarked on the incongruity of the fact that his brother lasted through six years of conflict in the Syrian army without a scratch on him, and yet met his death on a nature strip in Meadow Heights.

90 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 the loved ones of Ali Ali and Deniz Hasan as a direct consequence of your offending. I take the contents of the statements into account in sentencing you.

91 You are to be sentenced as a serious violent offender in respect of charge 4 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, it was not submitted by the Crown that in order to achieve that purpose, I should impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances.

92 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 of murder.

93 Your crimes having been committed after 1 February 2018, the standard sentence scheme applies to charges 3 and 4. The standard sentence for murder is 25 years.

94 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.

95 Section 5(2) of the Act requires me to have regard to a number of specified matters in sentencing you on charges 3 and 4. 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.

96 The standard sentence scheme was the subject of consideration by the Court of Appeal in the decision of Brown v The Queen ('Brown').[16] 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.[17]

97 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 on each charge 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 its objective factors, charge 4 is a very serious instance of the crime falling above the middle range of seriousness for murder. As for charge 3, I of course bear in mind that it is clear that statutory or s 3A murder is not inherently less serious than intentional or common law murder.[18] It is always a matter of considering the individual circumstances of a given case. I have already noted the seriousness of your crime of the murder of Ali Ali. Notwithstanding that, having considered charge 3 and taking into account only this crimes's objective factors, to my mind it would fall somewhat below the middle range of seriousness for murder.

98 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.

99 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.[19] 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.[20] I have endeavoured to do that in some detail during these reasons for sentence.

100 The sentence I will pass upon you on charge 3 is lower than the standard sentence for murder. The sentence I will pass upon you on charge 4 is higher than the standard sentence for 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.

101 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.

102 This change in the law does not preclude me from having regard to sentencing principles established in previous cases.[21]

103 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.

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

105 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, and the upshot for you is that you have not had a personal visit for more than two years, your contact with family being limited to telephone and Skype calls. In addition, 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.

106 Your counsel relied upon the evidence of Ms Matthews in support of the contention that you have exhibited some remorse. Ms Matthews said in her evidence that she believed you to be genuinely sorry that people had died and their families had been affected. You have maintained that you are not guilty, however, and she described your remorse as being 'qualified'.

107 Remorse means deep regret or guilt for doing something morally wrong,[22] or deep and painful regret for wrongdoing.[23] It is a term referring to the fact or state of feeling sorrow for committing a sin.[24] In some cases, clear evidence that an offender is remorseful for his or her offending may be advanced and relied upon as a circumstance in mitigation. That is not the case here. You maintain your innocence, as is your right. At your trial, you not only pleaded not guilty but ran a defence which falsely accused your dead friend of the killing of Hasan and the accidental shooting of himself. Any sorrow expressed by you in more recent times for the plight of Ali Ali, Deniz Hasan, or their families, is not accompanied by any acceptance of responsibility for what occurred. Remorse 'qualified' in such a fashion is not remorse at all. There can be no remorse without acceptance of responsibility. The absence of remorse is not a circumstance of aggravation, but you cannot derive any benefit for any remorse for your actions.

Prospects of rehabilitation, totality, cumulation and concurrency and the avoidance of a crushing sentence

108 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'.[25] Mr Chadwick submitted that your prospects of rehabilitation are good in light of your modest criminal history and the supports you will have in the community.

109 To foster your rehabilitation, Mr Chadwick submitted that I should avoid passing an overall sentence of imprisonment which would be crushing. He acknowledged the difficulties with this in light of the need for a long head sentence and a non-parole period which would be at least 70 percent of the head sentence. He did not submit that it would be in the interests of justice not to pass a head sentence of that order, but submitted that the non-parole period should not exceed 70 percent of the head sentence. He submitted that there should be full or at least substantial concurrency between the sentence on charge one and the sentence on charge 3. He submitted that the sentence on charge 4 should be the base sentence, and acknowledged the need for some cumulation between the sentence on charge 3 and the base term. Mr Chadwick submitted that the terms of imprisonment on the respective charges and the orders for cumulation should be, as he put it, 'the absolute least'[26] that it would be open to me to impose.

110 The Crown conceded that the principle of totality has application. Mr Gibson acknowledged that substantial concurrency is required between the sentence on charge 1 and that on charge 3. He agreed that the sentence on charge 4 should be the base sentence and submitted that there is a need for some cumulation of the sentence on charge 3 with the sentence on charge 4.

111 I take into account the respective submissions, and have regard to the principle of totality and the need, so far as possible, to avoid passing a sentence which will be crushing in the circumstances. I note that pursuant to s 6E of the Act, any sentence imposed on charge 4 must be ordered to be served cumulatively on the other sentences imposed 'unless otherwise directed by the court'. I will otherwise direct, by ordering what I consider to be an appropriate measure of cumulation between the sentence on charge 3 and the sentence on charge 4, in order to achieve a head sentence which is just. I have reviewed the total effective sentence at which I have arrived to determine whether it is just and appropriate in the overall circumstances. I have done my best to ensure that it is so. So, too, in respect of the non-parole period, to which I will shortly turn.

112 Before leaving the matter of the degree of cumulation between the sentences on charges 3 and 4, I should make it plain to the family members of Ali Ali that the relatively modest degree of cumulation should not be taken to be an indication of the Court's assessment of the value of the life of Mr Ali. Rather, it should be seen as the means by which the Court has sought to ensure that the total effective sentence of imprisonment represents an appropriate and just response to the overall criminality in which you engaged.

113 The difficulty with giving effect to the submission concerning the avoidance of a crushing sentence is obvious enough in light of the gravity of your offending. It is perfectly plain that a very long head sentence of imprisonment is called for in your case, bearing in mind the very serious nature of the offending in charge 4 in particular, and the need for a significant degree of cumulation between the sentences on the two charges of murder to properly reflect the fact that you killed two people, not one, and that each life lost was precious. 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 already touched on which dictates a minimum duration of the non-parole period depending on the length of the head sentence.[27] The result will be a head sentence and a non-parole period which will both be very substantial, and will seem especially so to a young person such as yourself who faces the sad prospect of many years in custody. Unfortunately, that outcome is unavoidable.

114 If I sentence you to a head sentence of 20 years or more, I am required by s 11A(4) 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 70 percent of the head sentence. The head sentence I impose will be one of 20 years or more.

115 As I have already noted, Mr Chadwick did not submit that I should fix a non-parole period lower than 70 percent of the head sentence, but urged me not to exceed the figure of 70 percent.

116 Taking into account all of the circumstances of this case, I do not consider that it would be in the interests of justice for a non-parole period of less than 70 percent of the head sentence to be fixed. Indeed, the non-parole period I will fix will somewhat exceed 70 percent of the head sentence. 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.

117 The serious offender legislation dictates, as I have already mentioned, that in determining the length of the sentence I impose upon you on charge 4, I must regard the protection of the community from you as the principal purpose for which sentence is imposed. In light of the very serious nature of your crime 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. It was submitted on your behalf that you would be unlikely to offend in a similar fashion in future. It is to be hoped that that is so, but the crimes of which you were convicted in this case, in particular, charge 4 on the indictment, were of a seriously violent nature, and would raise a concern that you might behave in similar fashion in future. The community must as far as possible be protected from that prospect.

118 As I have already indicated, in my view your crimes are all serious. The planned armed robbery was to be a brazen street attack upon a person selected as a vulnerable target, carried out for reasons of greed, with the use of a very dangerous firearm, with a high level of danger attaching to it. This was to be a serious armed robbery. Your murder of Ali Ali, whilst not a deliberate killing by you, was no mere accident. It was the tragic and criminal result of your preparedness to engage in the armed robbery to which I have already referred, and to bring to the task the firearm which for some reason you had in your possession at your home. As for your deliberate shooting of Deniz Hasan which resulted in that conviction for murder, it was a crime of a very high degree of seriousness, as I have already stated.

119 Looked at in its totality, your offending was a significant episode of violent lawlessness which interrupted what should have been the tranquillity of a quiet suburban street and led to the senseless deaths of two men, whose loss is, and always will be, felt grievously by those who love them.

120 In the immediate aftermath of your crimes, you sought to evade responsibility, running from the scene and disposing of incriminating items. You displayed scant regard for the welfare of your seriously injured friend. From that time until the present, you have exhibited no remorse.

121 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 appropriately reflects the very serious nature of your crimes and amounts to an appropriate response to them. The sentence must communicate in clear terms this Court's condemnation and disapproval on behalf of the community of your violent criminal conduct. In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to carry out serious crimes of violence, extending to violence of such magnitude as to take the lives of others in the community, 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 insofar as the wider community is concerned will largely be met for some years to come by your being held in custody for a long period of time.

122 Turning to rehabilitation, whilst it is not at the forefront of the purposes for which sentence will be passed upon you, and whilst a long period in custody is the inevitable outcome for you upon conviction for these serious crimes, the sentence I pass will encompass a non-parole period which, in light of your young age now, will at least hold out the prospect of a useful life outside prison upon the expiration of the non-parole period should you be granted parole, supported by a lengthy period of supervision in the community on parole. I have done the best I can in the circumstances to avoid the imposition upon you of a sentence which would be properly seen as crushing.

123 Norden Wilio, for the attempted armed robbery of Deniz Hasan, you are sentenced to be imprisoned for 7 years.

124 For the murder of Ali Ali, (charge 3) you are sentenced to be imprisoned for 19 years.

125 For the murder of Deniz Hasan, (charge 4) you are sentenced to be imprisoned for 29 years.

126 The sentence on charge 4, the murder of Deniz Hasan, is the base sentence.

127 I order that 6 years of the sentence on charge 3, the murder of Ali Ali, be served cumulatively upon the base sentence.

128 I make no order for cumulation in respect of the sentence on charge 1, the attempted armed robbery. This sentence will by operation of law be served concurrently with the other sentences passed today.

129 The total effective sentence is therefore imprisonment for 35 years.

130 I fix a period of 26 years during which you will not be eligible to be released on parole.

131 I declare a period of 866 days up to and including yesterday, 23 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.

132 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 charge 4 be entered in the records of the Court.

[1] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[3] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.

[12] [2015] VSCA 325; (2015) 47 VR 395 ('O'Neill').

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

[16] [2019] VSCA 286.

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

[18] Perry v R [2016] VSCA 152; (2016) 50 VR 686, 690.

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

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

[22] Oxford English Dictionary, Online edition.

[23] Macquarie Dictionary, Fifth edition.

[24] Oxford English Dictionary, Online edition.