Supreme Court New South Wales Medium Neutral Citation: R v Moustapha Dib [2012] NSWSC 1431 Hearing dates: 13 -28 June 2012 , 2 -9 July 2012, 2 November 2012 Decision date: 23 November 2012 Jurisdiction: Common Law - Criminal Before: Barr AJ Decision: 1.For the wounding of Ahmed Banat with intent to murder him, the offender, Moustapha Dib, is sentenced to imprisonment. Set a non-parole period of 15 years which will be taken to have commenced on 9 July 2011 and which will expire on 8 July 2026. The balance of the term of the sentence will be 5 years, expiring on 8 July 2031. 2.For the murder of Anita Vrzina, the offender is sentenced to imprisonment. Set a non-parole period of 25 years which will commence on 9 July 2016 and expire on 8 July 2041. The balance of the term of the sentence will be 10 years, expiring on 8 July 2051. 3.The first day on which the offender will become eligible for release to parole will be 8 July 2041. Catchwords: CRIMINAL LAW - sentence - murder CRIMINAL LAW - sentence - wounding with intent to murder Legislation Cited: Children (Criminal Proceedings) Act 1987 Cases Cited: Dib v Parole Authority of NSW & Anor [2009] NSWSC 575 Category: Sentence Parties: Regina - Crown Moustapha Dib - Offender Representation: C. Patrick H. Dhanji SC; S. Buchen Director of Public Prosecutions Gallbally Rolfe Lawyers File Number(s): 2011/334741 REMARKS ON SENTENCE 1The offender, Moustapha Dib, has been found guilty by the jury of the offences that on 23 November 2000 at Punchbowl he murdered Anita Vrzina and that at the same time and place he wounded Ahmed Banat with intent to murder him. 2Mr Banat was driving his car northwards in Kathleen Street Punchbowl some time after 10pm on 23 November 2000. His wife, Anita Vrzina, was seated in the front passenger seat. Their young son was seated in the back seat. They were travelling in company with friends, Jalal al Zahab and Monzer el Husseini, who were in another vehicle. That vehicle was ahead of Mr Banat's. A stolen car flashed its lights as it approached Mr Banat's vehicle from the rear. Mr Banat stopped and the stolen car stopped on Mr Banat's offside. The offender was seated in the front passenger seat of the stolen car. He fired at least four bullets into Mr Banat's car. Two struck Ms Vrzina and killed her. Only one bullet struck Mr Banat. It passed clean through his neck from side to side under the line of the jaw. Almost miraculously it did not kill him. The car containing the offender sped off. A few minutes later it was abandoned and set on fire not far away. 3After he was shot Mr Banat, who was bleeding badly and in need of urgent medical help, drove his car northwards along Kathleen Street and overtook the vehicle containing Mr Al Zahab and Mr El Husseini, which had stopped. He drove into the Boulevard and stopped after a couple of blocks. The other vehicle followed. Mr Al Zahab, the driver, stopped his vehicle near Mr Banat's. Police officers responding to a call about another incident saw the erratic career of the cars and stopped. When they realised what had happened they gave what help they could and called an ambulance. Ambulance officers attended. Sadly, they could do nothing for Ms Vrzina. They rendered first aid to Mr Banat. Police and ambulance officers took him to hospital, where arrangements were made for him to be taken to St George hospital for surgery. 4Mr Banat spent more than three hours in the operating theatre and was discharged to recover in the Intensive Care Unit in the early hours of 24 November. Police officers guarded him. 5The police were anxious to interview Mr Banat to try to ascertain who had shot him. With the permission of hospital staff Detective Sergeant Karras and Detective Senior Constable Apolony spoke to Mr Banat as he lay in bed. There were a number of conversations over that day and the next. Mr Banat could not speak but he could think and write. Over a period of hours he answered the officers' questions by writing his answers on paper supplied to him. 6Mr Banat had known the offender for years. He was then 22 years of age and the offender 17 years of age. He knew the offender from school and had seen him on numerous occasions in the company of others. He knew him by the nickname "Fairy", or it may have been "Ferry". 7Detective Sergeant Karras asked Mr Banat whether he could tell him who had done this to him. Mr Banat wrote the nickname. He spelt it "Fairy". He also wrote the names of two other persons as occupants of the car. He wrote that there was a fourth person whom he did not identify. He described the car. 8On the evening of 24 November Mr Banat's brother, Mohamad Banat, visited him and spoke privately to him. During their interview Mr Banat wrote on paper the names of occupants of the car, including the nickname "Fairy". Mr Mohamad Banat signed the paper and wrote on it the time and date and handed it to Detective Sergeant Karras and Detective Senior Constable Apolony. 9Early in his interview with the two police officers, immediately after he first wrote the nickname "Fairy", Mr Banat wrote a question, enquiring whether the police had shown statements. I am satisfied that he was referring to a statement he had made at the New South Wales Crime Commission on 13 July 2000 in which he had described an event that had taken place shortly after the stabbing of a schoolboy, Edward Lee in 1998. On that occasion Mr Banat was visiting the house of a friend. The offender was there and had blood on him. There were clothes with blood on them. Blood was being hosed away. Others present were remonstrating with the offender for what he had done. 10Although the offender was eventually charged over the killing of Edward Lee, pleaded guilty of his manslaughter and was sentenced for that offence, he had not been charged when Mr Banat made his statement at the New South Wales Crime Commission. I am satisfied that when he wrote the question for Detective Sergeant Karras and Detective Senior Constable Apolony Mr Banat, knowing that the offender had shot him and his wife, believed that the reason for that might be that the offender had somehow learned about the statement he had made. 11By the end of 25 November Detective Sergeant Karras and Detective Senior Constable Apolony had a number of notes written by Mr Banat, but they desired to have the information he was giving incorporated in an official statement, signed by Mr Banat. They invited him to sign a statement, but he put them off. He later declined further invitations to make a statement 12On 15 December 2000, after his discharge from hospital, Mr Banat went to the police station and made a written statement in which he said that he could not identify any of the occupants of the car. He said that they were wearing balaclavas. Whenever he has been asked about the matter since, Mr Banat has said that he could not identify the occupants of the car. That was his evidence at trial. The jury rejected that evidence and were satisfied beyond reasonable doubt that the statements written for Detective Sergeant Karras and Detective Senior Constable Apolony identifying the offender as the gunman were truthful and accurate. 13In his evidence before the jury Mr Banat accepted that he had written the notes but put forward a number of reasons for doing so. He said that, perhaps influenced by drugs that had been administered to him in the course of his treatment, he had had a nightmare. The implication was that he was writing not what he had seen but what he had dreamed or imagined. He criticised Detective Sergeant Karras and Detective Senior Constable Apolony, saying that they had overborne him, putting into his mind while he was in a suggestive state the idea that the offender must have been the gunman. He said that they told him, among other things, that the police had a cap with the offender's DNA on it. In fact a cap was picked up off the road in Kathleen Street on the night of the shooting and a DNA profile matching the offender's was developed from it, but not until the following March. I am satisfied that he was lying about the conduct of Detective Sergeant Karras and Detective Senior Constable Apolony. 14Mohamad Banat gave evidence in which he asserted that Detective Sergeant Karras and Detective Senior Constable Apolony had not allowed him to have a private conversation with Mr Ahmed Banat. That notwithstanding that he had previously told a Court that they had had a private conversation. He said that while he was there Mr Banat wrote "balaclavas" on a piece of paper and handed it to him. He no longer had the piece of paper. He was invited to consider the discrepancy between Mr Banat's expression of the names of the occupants of the car and the implication of a statement that they were wearing balaclavas, but was unable to explain it. He could scarcely deny the authenticity of the document bearing the names of the asserted occupants in Mr Banat's handwriting and bearing his own signature with a time and date. I am satisfied that he told lies as far as he thought he was able. I am satisfied that there was never a document on which Mr Banat wrote "balaclavas". 15I found Mr Banat an unsatisfactory witness. He was generally unprepared to listen to questions and answer them in terms. He frequently took the opportunity to burst out and make speeches of his own devising. He attacked the Crown prosecutor verbally and threatened to do him violence. I am satisfied that he set out to do anything he thought he could to assist the defence. The jury rejected his denials. 16Based upon his evidence at trial, Mr Richter, Queen's Counsel for the offender, launched a strong attack on Detective Sergeant Karras and Detective Senior Constable Apolony. By their verdicts, the jury accepted the reliability of the information contained in the notes written in response to questions asked by Detective Sergeant Karras. For my part, I am satisfied that the two officers behaved appropriately and in the interests of Mr Banat and of the citizens of this State. I am satisfied that they did not attempt to manipulate him or suggest to him who the gunman must have been or otherwise deal with him unfairly. I am satisfied that they said nothing about any cap and any DNA. That was a lie made up by Mr Banat long after he left hospital, based on events which took place after he left hospital. 17There was disputed evidence about things said by Mr Banat when the police first came on the scene in the Boulevard. I need not deal with it all here. It is enough to say that in my opinion there was no mention at that time of balaclavas. That subject was not raised until after Mr Banat was discharged from hospital. 18It was the Crown case at trial that the offender's motive in committing these offences was to prevent Mr Banat from giving evidence if he, the offender, should later be charged over the killing of Edward Lee. Evidence was given by a protected witness using the name John Lee. He knew the offender well and was frequently in the street where the offender lived. At the time of these events he saw the offender every day. In a conversation that took place about a week before the shooting the offender said that Mr Banat was a dog. He also said, "if you testify, next of kin will die". Mr Lee said that the term "dog" meant someone who gives statements to police. He said that others also used to say that Mr Banat was a dog, but mainly the offender. 19At about the same time there was a conversation in which the offender said that Mr Banat was going to testify the next day, but he did not say what the case was about. There was no reason to think that it concerned the offender. 20According to Mr Lee, a couple of days before the shooting the offender said, "if you testify your next of kin will die". 21The day after the shooting the offender said, "If you shoot someone you have to shoot the witness too. I don't feel sorry for no one because that's how people get done for murder". On that day or the day after there was a conversation when those present were looking at a copy of the Daily Telegraph. The offender said that Mr Banat had been shot in the voice box and would not be able to testify. His wife would not be able to be a witness. 22I think it very likely that the offender discovered that Mr Banat had informed on him and believed that he might give evidence against him if he were charged over the killing of Edward Lee. I am not satisfied beyond reasonable doubt, however, that that was his precise reason for committing these offences. He knew or believed that Mr Banat was an informer. He mentioned a particular matter due to take place, on the following day, which presumably did not involve the offender. While he was apparently prepared to speak freely about Mr Banat and what he thought of him, there is no evidence of any acknowledgment that he expected Mr Banat to give evidence against him, let alone in relation to the Edward Lee stabbing. 23Although I think it highly probable that the offender carried out this assassination to stop Mr Banat giving evidence implicating him in the Edward Lee stabbing, it is also possible that he took the action he did to forestall evidence in another matter, unmentioned, or to express his disapproval of Mr Banat as an informer generally. 24I am satisfied beyond reasonable doubt, however, that the offender committed these offences to prevent Mr Banat from assisting the authorities as an informer, including giving evidence in Court, and to prevent Ms Vrzina from identifying him as the one who shot Mr Banat. Another reason for killing Ms Vrzina was her relationship to an informer. 25It was submitted by Mr Dhanji of Senior Counsel for the offender, that the offender was less culpable than might appear because although the offender fired the bullets intending to kill he was not intending to kill Ms Vrzina. Mr Dhanji submitted that the Court would not be satisfied beyond reasonable doubt that the offender knew that Ms Vrzina was in Mr Banat's car at all. 26Even if the facts were as postulated I would not regard such a killing as any less blameworthy than if the offender had intended to kill Ms Vrzina. But I do not accept the premise on which the submission was based. The things said by the offender as reported by Mr Lee show the importance placed by the offender on the need, when shooting anyone, to shoot any witness as well. Mr Lee's evidence also shows that the offender's view was that it was appropriate to execute the next of kin of informers. 27Mr Dhanji attacked the reliability of Mr Lee's evidence, particularly his use of the term "next of kin" and submitted that that expression came not spontaneously from Mr Lee but from the investigating police officers. Mr Lee was a very important Crown witness and I listened very carefully to him and watched him closely as he gave evidence. I bear in mind that he gave evidence in fulfilment of an undertaking to a Judge of the District Court to do so, having received a substantially lower sentence than he would have otherwise received in exchange for the undertaking. I thought he was telling the truth. 28Mr Banat and Ms Vrzina were living together in a unit in Melrose Ave, right opposite the southern end of Kathleen Street. Marta Vrzina, Ms Vrzina's younger sister, was visiting them on that day. She saw Mr Banat and Ms Vrzina get into their car. Their son was seated in the back seat. Mr Banat was driving and Ms Vrzina was in the front passenger seat. Marta Vrzina was at the front of the block of units looking along Kathleen Street when she saw Mr Banat drive the car northwards along Kathleen Street, following the vehicle containing Mr Al Zahab and Mr El Husseini. The distance between the southern end of Kathleen Street and the northern end where it terminates at the Boulevard is about 350 metres. The distance between Melrose avenue and the point at which Mr Banat stopped his car in response to the flashing headlights of the car following is about 250 - 300 metres. It would have taken Mr Banat's car less than half a minute, probably closer to 20 seconds, to reach the point at which the shots were fired. The short distances and the times involved show that the offender must have been waiting for Mr Banat. He must have known that he was in the car as his car followed Mr Banat's and flashed its lights. If the offender knew that because he had seen Mr Banat enter the car, he would also have known that Ms Vrzina was in the car, for she entered it at the same time. 29Mr Dhanji submitted that the light was not good, that the shooting took place over a very short time during which the cars were moving, that Ms Vrzina was seated beside Mr Banat, who might have hidden her from the offender's view, that her headscarf may have made her harder to see and that the offender would have been concentrating on Mr Banat. 30Although Mr Banat lied about his ability to identify the gunman there is no reason not to accept his evidence of the way in which the cars behaved. He said that in response to the flashing lights he brought his car almost to a stop. A little later he said that he had brought it to a full stop, but not for long. Then both cars moved and a number of shots were fired. He thought five. He said the cars were within 2 metres of each other. The offender's window was down. He did not remember whether his window was down but the manner in which the bullets passed into Mr Banat's car and the damage to the car show that it was. 31In my opinion, the offender had enough time and enough light to see Ms Vrzina in the car, even if he did not already know that she was there. Both opposing windows were open and the vehicles were within 2 metres of one another, side by side. I am satisfied beyond reasonable doubt that the offender knew when he fired no fewer than four shots that Ms Vrzina was in Mr Banat's car. I am satisfied beyond reasonable doubt that it was a principle of his that when shooting anyone, any witness should be shot as well. I am satisfied that it was a principle of his that informers' "next of kin" should be killed. I am satisfied beyond reasonable doubt that the offender fired at least four bullets intending to kill both Mr Banat and Ms Vrzina. 32The car which the offender used was stolen at his request. I am satisfied that he requested it with the intention of killing Mr Banat. The offender had to obtain a firearm and ammunition. He had to lie in wait for Mr Banat. He was able to carry out his intended attack only by making careful preparations. The shooting was accordingly well planned. 33The offences were more serious because they were carried out in company. The attack was launched in a public street without regard for public safety. 34To assassinate a person to prevent their giving evidence strikes at the heart of our system of justice. Those who use firearms to inflict serious wounds as they attempt to do so deserve to be punished severely. Those who murder spouses or near relatives of those who inform in order to deter them from assisting the authorities or to send out a warning to others who might inform or who murder those who witness their crimes offend very seriously indeed. To my mind it makes no difference whether an offender acts as he does to protect his own interests or anybody else's. In my opinion, such offences fall into the worst category of cases and may attract the maximum sentence. For murder the maximum sentence in this state is imprisonment for life. For wounding with intent to murder the maximum sentence is imprisonment for 25 years. 35The offender was born on 16 December 1982 and was 17 years and 10 months old when he committed these offences. He was dealt with a number of times in the Children's Court but I shall take no notice of those matters. 36In 2000, the offender was arrested and charged with assault, affray, being armed with intent to commit an indictable offence and destroying or damaging property. He was sentenced in the Local Court to serve concurrent terms of 6 months' imprisonment, commencing on 22 December 2000 and expiring on 21 June 2001. 37On 5 February 2001 he was charged with the murder of Edward Lee. After pleading guilty of his manslaughter he was sentenced to imprisonment for 10 years, commencing on 26 May 2001 and expiring on 25 May 2011. A non-parole period of 5 years was fixed, expiring on 25 May 2006. 38On 27 February 2004 the offender pleaded guilty to two charges of supplying a prohibited drug, one of heroin and the other of cocaine. He was sentenced to a term of imprisonment of 6 years, commencing on 27 February 2004 and expiring on 26 February 2010. A non-parole period of 4 years was set, expiring on 26 February 2008. 39The offender was arrested on the present charges on 26 November 2000 and was in custody on those charges alone for a period of 26 days until the commencement of the sentences imposed in the Local Court. From then on his successive and partly concurrent sentences continued until the drug supply sentences expired. The offender was not taken into custody again until the jury found him guilty of the present charges on 9 July 2012. 40The offender became eligible for release to parole on 26 January 2008 but was not released. The Parole Authority cited as reasons for refusing parole the lack of post-release accommodation and the outstanding charges, which were only those leading to the present offences. The Authority's reasons were extracted in the judgment of Patten AJ at [2009] NSWSC 575 at [10]. Those reasons suggest to me that of the two reasons given, the existence of these charges was the more important. The Authority refused parole again on 11 March 2009, this time for reasons it would not disclose. However, the present proceedings had by then been discontinued and there is no reason to think that these charges formed any part of the Authority's reasons. It seems to me that the outstanding charges were largely responsible for the refusal of parole between 26 January 2008 and 11 March 2009. Taking into account the period of 26 days between the offender's arrest and the commencement of the Local Court sentences and the greater part of the period between 26 January 2008 and 11 March 2009, I shall allow the offender 12 months' credit as pre-sentence custody. I shall accordingly set his sentences to begin on 9 July 2011. 41There are two reasons why in my view maximum sentences should not be imposed. The first is the offender's age when he committed the offences. He was still two months short of adulthood. When sentencing young offenders, the Court ordinarily lays less emphasis on general deterrence and retribution and more on promoting rehabilitation. The court has said that young persons that deliberately engage in activities of the kind that adults perform may be treated on sentence as though they were adults, and further that the significance of an offender's youth will become less as the offender approaches adulthood. Even so, it seems to me that the age of this offender when he committed these offences should be given some weight. 42The second reason is the substantial delay that has taken place between charge and conviction. The trial of the offender on these charges began in September 2003 but had to be aborted. The trial restarted in the following month but that trial had to be stopped as well. The trial was set down for hearing a third time but in the meantime Mr Banat had left Australia and the Crown did not know where he was. The third attempt to try the offender was abandoned. I do not need to set out the detail of what happened after that. It is sufficient to say that the Director of Public Prosecutions twice directed that there be no further proceedings and twice reinstituted proceedings by the filing of an indictment ex officio. The trial which led to the conviction of the offender was held pursuant to an ex officio indictment filed on 20 October 2011, after Mr Banat had been arrested in Syria and extradited to New South Wales. The result has been a delay of about 9 years in the conviction of the offender and he is not to be blamed for the delay. In the meantime, he has served the sentences I have mentioned and has been released to parole. All his prior sentences have now expired. 43In my opinion, the court should impose less than the maximum sentence for each offence. 44The offender's early history of offending shows that he was undisciplined and impulsive and frequently offended. In sentencing him for the manslaughter of Edward Lee, Wood CJ at CL remarked on his impulsive nature. 45The offender was held in continuous custody, beginning not long after these events on 22 December 2000 and ending on his release to parole on 10 August 2009. He participated in the treatment phase of the Violent Offenders Therapeutic Program (VOTP) between 17 July 2006 and 19 April 2007. That program is designed to assist violent offenders change their behaviour by changing their thinking, attitudes and feelings. Participants are expected to take responsibility for their offending behaviour and develop a detailed program to manage the risk of relapse. A report was issued on the offender's completing the program on 20 April 2007. Those reporting commented thus on the offender's attitude at the commencement of the program - "Treatment Participation and General Unit Behaviour Mr Dib had a strong presence in the VOTP community. He presented as a dominant and serious person who was rigid in his thinking and behaviour. Mr Dib followed a regimented fitness routine and attended regular group prayer times. He preferred to know ahead of time any changes in the program schedule so he could amend his daily routine accordingly. His desire for routine was evidenced in group where he quickly became the time keeper, checking his watch in group and indicating when a break was due. Mr Dib ceased doing this when it was brought to his attention. Early in the program he was often annoyed by any changes to routine, however, his willingness to be flexible did improve through the course of the program. Mr Dib was generally not a management problem in the unit and typically kept to himself. Some paranoid beliefs and cognitions were significant impediments to Mr Dib's treatment in the early stages of the program. He was suspicious of the facilitator's motives and was concerned that questioning was intended to gather information to use against them (e.g. to profile them). This was also evident in early modules where offenders were asked to talk about their families. Mr Dib was at times quick to anger in group and accuse staff of trying to place blame onto his parents. This improved over the course of the program and Mr Dib became more trusting of the facilitators' intentions. ... Mr Dib reported early on in the program that he felt very uncomfortable interacting with officers. Prior to commencing the program he had been in segregation for several years and he also admitted to very strong anti-authority attitudes. Increasing his interaction with custodial staff was a specific treatment goal for Mr Dib, particularly in Stage two of the program where he made an effort to increase his communication with staff and to address them by their first name. He displayed some progress in this area. Aggression Management This section was part of the readiness phase, prior to the treatment phase of the programme. Mr Dib participated well in groups and completed all required homework conscientiously. He recognised that he previously had a poor understanding of the emotion and its varying levels. Mr Dib was able to recognise he typically exhibited significant control over this anger, however, in highly anger provoking situations he acknowledged that he would lose control and often act violently. This insight assisted Mr Dib in understanding an important behaviour pattern. In addition, Mr Dib was able to identify typical anger-provoking situations which usually involved feeling slighted for some perceived unfairness, for example: being kept for too long in a holding cell and being deprived of things he believed he was entitled to. Mr Dib was able to identify the thoughts that would lead him to feel angry in these situations ("not again" and "why me") and then generated positive coping statements that could reduce his level of anger in these situations ("that's part of gaol", "it's not worth it" and "think of the consequences"). In addition to using more positive self-talk to reduce and control his level of anger, Mr Dib identified time-out, training and talking to a friend as other effective strategies. Initially Mr Dib had some difficulty understanding defence mechanisms and how they are used to excuse and/or minimise violent behaviour. With further explanation he was able to identify that he has typically used justification (e.g. "he hit me first") as his main defence mechanism to excuse his use of violence. Overall, Mr Dib satisfactorily completed this module and acknowledged that anger and his use of violence was a problem he needed to address in the programme..." 46The report went on to deal in detail with the several aspects of the VOTP and the initial attitude and response of the offender. The report concluded as follows - "On entry into the program Mr Dib was assessed as moderate in terms of his general risk of reoffending in the 12 months following release from custody...Through completing the work in the program Mr Dib has improved his understanding of the factors that contributed to the development of his criminal lifestyle. He stayed in the program despite his initial reluctance and was diligent in completing the work assigned. Over the course of the program Mr Dib became more willing to listen to and consider other people's opinions and acknowledge that he can benefit from this. His willingness to communicate with custodial staff improved and he made attempts to interact with them more regularly. In addition, Mr Dib's understanding of anger has improved. He recognised that his pride often triggered his anger and resulted in him reacting aggressively. He reports that he is now better able to challenge his thinking around this and reminds himself of his long term goals. Mr Dib reported that the most significant gain for him was learning about his thinking that leads to his offending behaviour. He identified many thoughts that encourage violence and criminal behaviour and developed counter thoughts to challenge these. Along with the improvements from Mr Dib's participation in the program, limitations and ongoing areas of need have also been identified. Mr Dib came into custody before he was 18. He has no significant work history and he demonstrated some naivety with regards to potential risk factors in the community. Accordingly, he often voiced an optimistic view of what life will be like when he is released from custody. In addition, Mr Dib displayed limited understanding of others' influence on his behaviour, which will remain a risk factor for him on release. Issues around unfairness and entitlement also continue to be strong risk factors to him acting aggressively. Furthermore, Mr Dib's thinking style is very rigid and concrete and he continues to have limitations in his ability to empathise. His risk of reoffending remains at the moderate level. After completion of the VOTP it is recommended that Mr Dib attend custody-based maintenance at his gaol of classification; continue to identify, develop and challenge his thinking that is related to his offending; continue to work towards a reduction in his classification; continue to develop his perspective taking skills and consider the impact of his behaviour on others; and obtain employment whilst in custody to prepare him for the workplace on release. Following his release from custody it is recommended that Mr Dib avoid contact with criminal associates; participate in pro-social activities to develop non-criminal relationships; attend community-based maintenance and receive a high level of supervision from parole". 47On 10 December 2008, in a pre-release report, officers of the Probation and Parole Service noted that the offender had accepted the opportunity to address his offending behaviour and prepare himself for release to conditional liberty. 48Dr Bruce Westmore, a forensic psychiatrist, saw the offender and wrote a report for the Court. He also gave oral evidence. Dr Westmore made the point, as borne out by official records, that the offender tended to be impulsive when young. He thought that during the 12 years that had passed since the present offences there were positive factors for risk prediction. Dr Westmore thought that there was good evidence of maturation, likely to lead to better decision making by the offender. He thought that he had coped quite well with the stresses and strains of custody and had made significant progress. Although Dr Westmore thought that the fact of the prior killing of Edward Lee was a matter of concern when sentencing for a further murder and an attempted murder, the two offences were dissimilar in that the Edward Lee killing was a criminal act carried out impulsively by a member of a group whereas the offences for which the offender must now be sentenced were the result of planning. Even so, Dr Westmore thought that in view of the significant time that had passed since the offences were committed, during which progress had been made, there was a potential for further progress. He thought that the degree of risk of re-offending would continue to reduce over time. 49Between the offender's release to parole and his re-entering custody following the jury's verdict there was no adverse report about his conduct. The period was substantial and the offender was in work. He has a partner, a young woman with two children by a former relationship, and he exhibits signs of the maturity about which Dr Westmore spoke. Testimonials put before the Court show that the offender is well regarded and a good worker. I accept that he has benefited by opportunities given to him in custody and is a more responsible person than he was when he committed these offences. There are prospects of rehabilitation. The offender's history of behaviour in custody and on parole suggests that he may become less rigid in his attitudes, better able to understand others' points of view and less aggressive. Of course, the length of the sentence I must impose will mean that the offender will not be released to parole for many years. By then time alone will have made him a very different person. How different I cannot tell. 50I do not regard the offender's other offences as aggravating the present offences and I have dealt with them merely in order to explain my understanding of the forces that have shaped him. I cannot say that the offender is unlikely to reoffend, but he has changed. 51The offender told Dr Westmore that he was sorry for "the victim and her family". He was not reported as saying anything about Mr Banat. He denies responsibility for his offences. I put no weight on his statement to Dr Westmore. He is without remorse. 52These two offences were committed at the same time, with the same intent and for the same reason. In accordance with the principles of totality the resulting sentences therefore need to be largely concurrent. Some accumulation is called for, however, in acknowledgement of the fact that one life was deliberately taken away and another person suffered serious injury and was almost killed. I have already remarked on the behaviour of Mr Banat in Court. The occasion did not arise during the trial and there would have been no point in asking him how the shooting had affected him. I think from my own observations that it affected him badly and that while he may have recovered physically he has been injured psychologically. 53I have considered whether the circumstances justify imposing a sentence for either offence the balance of whose term exceeds one-third of the non-parole period. It was not submitted that any such circumstances existed. As far as I can tell the parole period I shall allow for will be sufficient to permit those supervising the offender to ensure his reintegration into the community. The only matter is the accumulation of sentences, and I shall make an adjustment to achieve a total effective sentence whose parole period is one third of its non-parole period. 54The Court received victim impact statements, which were read on behalf of Matija Vrzina, the mother of Ms Vrzina, Ante Vrzina, her father, and her sisters, Tanja and Marta. I know that it has been explained to Ms Vrzina's parents and sisters that the Court cannot take into account, in imposing sentence, the hurt and distress that they have suffered and are continuing to suffer as a result of these tragic events. However, the Court can and does publicly acknowledge their loss and hurt and extends its sympathy to them. It is to be hoped that now these proceedings are finished they will have healing and comfort. 55Section 15A of the Children (Criminal Proceedings) Act 1987 ("the Act") forbids the publication of the name of an accused person who was a child at the time of any offence the subject of charge. Accordingly, the offender has been referred to throughout these proceedings as Z. Section 15C of the Act empowers a Court which sentences such a child on conviction for a serious children's indictable offence to authorise by order the publication or broadcasting of the name of the person. The two offences of which the offender has been convicted and is to be sentenced are serious children's indictable offences. The Crown has applied for such an order. When the subject was raised during the sentencing hearing Mr Dhanji, for the offender, did not wish to be heard. 56Section 15C(3) requires these matters to be taken into account by the Court in determining whether to make such an order - (a) the level of seriousness of the offence concerned, (b) the effect of the offence on any victim of the offence and (in the case of an offence that resulted in the death of the victim) the effect of the offence on the victim's family, (c) the weight to be given to general deterrence, (d) the subjective features of the offender, (e) the offender's prospects of rehabilitation, (f) such other matters as the court considers relevant having regard to the interests of justice. 57I have considered the application. The three matters which I think are most important and outweigh all other considerations are these. The offender was close to adulthood when he committed these offences. One of them, the murder of Ms Vrzina, has seriously affected the parents and sisters of Ms Vrzina. The offender planned and perpetrated a public execution. Weight must be given to general deterrence in imposing sentence for such offences. 58Accordingly, I authorise the publication and broadcasting of the name of the offender. 59Moustapha Dib for wounding Ahmed Banat with intent to murder him I sentence you to imprisonment. I set a non-parole period of 15 years which will be taken to have commenced on 9 July 2011 and which will expire on 8 July 2026. The balance of the term of your sentence will be 5 years, expiring on 8 July 2031. 60For the murder of Anita Vrzina I sentence you to imprisonment. I set a non-parole period of 25 years which will commence on 9 July 2016 and expire on 8 July 2041. The balance of the term of your sentence will be 10 years, expiring on 8 July 2051. 61The first day on which you will become eligible for release to parole will be 8 July 2041. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2012