Director of Public Prosecutions v Elliott & Fares (Sentence)

[2022] VSC 554

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0051

S ECR 2020 0052

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACOB ELLIOTT
ALLAN FARES

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATES OF HEARING:	10, 11 & 12 August 2022
DATE OF SENTENCE:	21 September 2022
CASE MAY BE CITED AS:	DPP v Elliott & Fares (Sentence)
MEDIUM NEUTRAL CITATION:	[2022] VSC 554

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CRIMINAL LAW – Sentence – Murder (2), attempted murder (2) and intentionally causing serious injury – Planned retributive attack upon a nightclub using semi-automatic handgun – Four shots fired with intention to kill - No acceptable evidence that attack ordered by father of Elliott – No evidence of reluctance by either accused - Young age of offenders – Youthfulness remained important notwithstanding seriousness of crimes – Extremely grave offending – High moral culpability in spite of ages – No remorse – Murders in worst category – Sentences of life imprisonment open and required – Non-parole periods set – Below statutorily prescribed minimum periods – Total effective sentence in each case of life imprisonment – Non-parole periods of 29 and 27 years for Elliott and Fares respectively.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Bourke KC with Ms D Karamicov	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused Elliott	Ms J Condon KC with Ms S Stafford	Doogue & George Criminal Lawyers
For the Accused Fares	Mr C Thomson with Mr C Terry	Galbally & O’Bryan

HIS HONOUR:

Introduction

1. At 3.15 am on 14 April 2019, four gunshots fired in quick succession rang out in Little Chapel Street Prahran outside the front of the Love Machine nightclub. The shots were fired by you, Jacob Elliott, from the front passenger seat of a stolen Porsche driven by you, Allan Fares, past the nightclub. The jury verdicts indicate that the intention of you, Elliott, at the time you fired all of the shots, was to kill, in accordance with the agreement which both of you had formed sometime before. Your joint intentions were put into frightening and devastating effect by your combined actions. Two innocent and blameless men lay mortally wounded on the road. Three other men had been shot. Numerous innocent bystanders had been exposed to terrifying acts of violence carried out in front of them. The relative calm of the streets of Melbourne had been disrupted and defiled by a crime of such viciousness and lawlessness as to shock the community.

1. And all of this for a petty and mindless act of revenge and retribution.

1. You have both been found guilty by a jury of two charges of murder, two of attempted murder, and one of intentionally causing serious injury (‘ICSI’). It is obvious that your crimes are of a very high order of seriousness requiring condign punishment notwithstanding the young age of both of you.

1. The maximum penalty for murder is life imprisonment. The maximum penalty for attempted murder is 25 years’ imprisonment. The maximum penalty for ICSI is 20 years’ imprisonment.

The uncontroversial facts

1. The plea hearing focussed on a number of areas of background to the facts which were in contention between the Crown and the legal representatives of each of you which will shortly be the subject of some discussion. For now, I will relate some of the factual matters concerning the offending which in most cases were uncontroversial in the trial and during the plea hearing.

1. There was evidence which made it clear that the two of you were close friends at the time of the events in question.

1. On the night of 13 April 2019, Ali Maghnie (‘Ali’), your half-brother, Elliott, attended at the Love Machine nightclub with a group of friends. Aged 17 at the time, he used a driver licence in your name, Fares, to gain entry to the nightclub.

1. At 1.05 am on 14 April 2019, Ali was ejected from the nightclub by security personnel. He was taken out of the Little Chapel Street entrance to the club and across the street. An altercation occurred between Ali and some of the security staff who ejected him. Some physical force was applied by one or more of the security staff to Ali. He was observed to be very angry notwithstanding the efforts of staff to calm him down. He was heard by a staff member to yell out a threat, ‘You are all fucked. I’m coming back’.

1. Ali walked the short distance to Malvern Road. He took out his mobile phone and began yelling into it. He made a series of calls in quick succession. First, he called his brother Abbas (‘AJ’), who did not answer the call. Then, between 1.10.30 am and 1.11.18 am, he made four calls to you, Elliott, which were unanswered. At 1.11.47 am he called his father Nabil Maghnie (‘Nabil’) and spoke to him. During the conversation, Ali complained bitterly about the fact and circumstances of his having been thrown out of the club. He claimed in effect that he had been beaten up by security staff. Nabil told Ali to get in a taxi and come to Nabil’s residence in Docklands (‘the Docklands apartment’).

1. At 1.21.53 am, you, Elliott, called Ali and he answered the call. He was still on the phone to you at 1.22 am when he hailed and got into a taxi. Your call with him lasted 1 minute and 3 seconds. You were in Bundoora at the time, as indicated by the phone tower to which your mobile connected.

1. At 1.33.38 am, your phone, Elliott, connected with the Wollert South mobile phone tower, indicating that you had left the area of your home address in Bundoora and driven to Wollert. The evidence indicated that you were driving your maroon Mazda Tribute vehicle.

1. Ali arrived at the Docklands apartment at 1.36.50 am. Shortly before this, Moussa Hamka (‘Hamka’), a co-offender in your trial who was found guilty by the jury of assisting an offender following a murder, had arrived at the Docklands apartment to visit Nabil. At 1.38 am, Hamka accompanied Nabil downstairs in the lift to collect Ali. He then proceeded upstairs with Nabil and Ali to Nabil’s apartment. A listening device planted by police in Nabil’s apartment[1] captured conversation between Ali and Nabil in which Ali claimed that Joey Hosri (‘Hosri’), the head of security at the Love Machine, had come from nowhere. Nabil called Hosri ‘a dog.’ Ali told his father that he had unsuccessfully called both AJ and you, Elliott, on numerous occasions.

   [1]Listening devices had been installed in the residence prior to 14 April 2019 in relation to an investigation involving Nabil Maghnie.

1. Evidence led in the trial indicated there was some hostility between the Maghnie family and Hosri.

1. Within three minutes of your phone, Elliott, having connected with the Wollert South phone tower, your work utility, Fares, was recorded on a CCTV camera outside a milk bar in Victoria Street, Preston, driving north towards Wollert. At 2.00.01 am, your phone, Fares, connected with the Wollert South phone tower.

1. Shortly after 2.02 am, you, Fares, pulled up your vehicle in Dewlea Street, Wollert, immediately behind your vehicle, Elliott. Both of you got out of your vehicles. You got into a stolen dark green Porsche Cayenne SUV (‘the Porsche’) which had been left at that location for later use.

1. At 2.06 am, the Porsche was recorded on a CCTV camera driving in a westerly direction along Dewlea Street with its headlights off. The evidence would suggest both of you were in the vehicle at this time. The Porsche was then driven south towards the Melbourne CBD.

1. At 2.46.25 am, the Porsche was detected travelling south along Punt Road, Cremorne. The Porsche, then being driven by you, Elliott, was now being followed by a stolen silver Suzuki Swift vehicle (‘the Suzuki’) driven by you, Fares. I am satisfied that the two of you picked up the Suzuki at some point in your journey between Wollert and Cremorne and that it was the intention of both of you to use both vehicles in connection with your planned attack at the Love Machine.

1. The two vehicles were driven in convoy, with the lead position being shared, south along Chapel Street, left into Simmons Street and then south along Bray Street, South Yarra, a street which at its southern end intersects with Malvern Road just opposite the Love Machine.

1. At 2.57.55 am, CCTV footage captured the two vehicles turning right from Malvern Road into Bray Street. The two vehicles proceeded north up Bray Street and then at 2.59.14 am, were observed travelling east along Simmons Street. The next time the Porsche was recorded on CCTV footage was at 3.01.33 am when it was being driven west along Simmons Street. There was no sign of the Suzuki, which I am satisfied had been parked in Simmons Street, South Yarra. By now, both of you were seated in the Porsche, with you, Fares, in the driver’s seat, and you, Elliott in the front passenger seat.

1. Shortly after this, the Porsche was driven south along Bray Street where it crossed Malvern Road and turned into Little Chapel Street. It drove south along that street, passing the side entrance to Love Machine at 3.04.20 am. At that time, two men who were security guards at Love Machine, Ahmed Osmani (‘Osmani’) and Semisi Tu’itufu (‘Tu’itufu’) were positioned on the roadway outside the entrance to the club.

1. You, Fares, drove the Porsche south along Little Chapel Street for some time before changing direction and heading back towards Love Machine. You drove past the club for a second time at 3.06.09 am. Osmani and Tu’itufu were still positioned on the roadway.

1. The vehicle was turned left into Malvern Road and then left into Chapel Street. It proceeded south until turning left into a street which led back to Little Chapel Street. It proceeded past the club for a third time at 3.08.52 am. Osmani and Tu’itufu were in their previous positions and a large number of people by this time were standing in the vicinity of the entrance to the club, many of them in a queue heading in the direction of Malvern Road.

1. The two of you then conducted a further similar lap, taking you past the club for a fourth time at 3.12.25 am. By the time of this pass, Osmani was still on the roadway, now speaking to a third security guard. Tu’itufu by now had moved onto the footpath where he was speaking with a patron. He moved back onto the roadway. Another person was positioned in the gutter near Osmani. This person was Kur (Richard) Arow.

1. A further similar lap was then embarked upon by the Porsche. As the vehicle was proceeding north along Little Chapel Street towards the club, you, Fares, pulled over to the left some distance to the south of the club. You remained in that position for just under one minute, before moving off to the north in the direction of the club at about 3.15 am. As you approached the Love Machine, Osmani was standing in his previous position facing the club, talking to Arow who was on the roadway to his left. A third security guard was to Osmani’s right, with Tu’itufu standing in the gutter with his foot on the kerb. At the front of the queue of patrons waiting to enter the club were Ali Shohani (‘Shohani’) and Ukash Ahmed (‘Ahmed’). Aside from those prospective patrons in the queue, a number of other patrons who had left the club were milling about on the street.

1. As the Porsche approached the club, you, Elliott, wound down your window and pointed a loaded firearm through the open window. The firearm was aimed level with the body heights of people standing outside Love Machine, and was held by you with both hands. You fired four shots in quick succession, over the course of about 1 second. With these shots you struck Osmani and Arow to the head, Tu’itufu to the right shoulder, and with one shot, struck Ahmed to the arm causing a though-and-through injury and then Shohani also to the arm.

1. I note that during the trial, Ms Condon KC, who appeared with Ms Stafford for you, Elliott, raised with the jury the prospect of one projectile having caused the head injuries to each of Osmani and Arow, by having passed through the head of the former then entered and remained in the head of the latter. Not surprisingly, this contention was not made before me on the plea. In my view, on all of the evidence, the contention was without merit. I am satisfied beyond reasonable doubt that separate shots fired by you, Elliott, penetrated the heads of each of Mr Osmani and Mr Arow.

1. Immediately after the shots were fired, the Porsche accelerated away from the club, turned across Malvern Road into Bray Street, and then drove north away from the scene, turning right into Simmons Street South Yarra. Rather than returning to the Suzuki and using it to continue your escape, the two of your returned to Wollert in the Porsche. The vehicle was detected on a number of CCTV cameras as the two of you made your way quickly north to Wollert, driving through a number of red traffic lights on the way. On your arrival near the location where you had left your own vehicles, you alighted from where the Porsche was parked in Highpark Drive, Wollert. You set fire to the Porsche with the use of a flammable liquid and then ran the short distance to your cars. You got into your respective vehicles and then drove in convoy through the streets of Wollert before heading to your homes.

1. In the devastating scene of carnage which you had left behind in Prahran, Osmani and Arow lay mortally wounded on the roadway. Mr Arow’s partner went to his assistance. Tu’itufu, who had been shot in the shoulder, ignored his own pain and tried to provide assistance to the two stricken men. He also endeavoured to get other patrons back into the club and to stop others from coming outside. Even upon the attendance of paramedics and police, so concerned was Mr Tu’itufu for the welfare of others that he did not even tell anyone that he had been shot for some minutes. All of this was in spite of the concern that he and others had that those responsible for the shootings may return to renew their attack.

1. Osmani and Arow were both taken by ambulance to The Alfred hospital. Osmani had sustained a gunshot wound to his head, with the projectile having entered above his right eyelid and exited through the left temporal bone. The injuries were unsurvivable. He was pronounced dead at 6.41 am on 14 April 2019. Arow had sustained a gunshot wound to the right mastoid bone of the skull. The spent projectile was located in his skull. He was treated at the hospital, but it soon became apparent that his injuries, too, were unsurvivable. He was pronounced deceased on 19 April 2019.

1. Tu’itufu was taken to The Alfred hospital for treatment of a gunshot wound to his right shoulder. A projectile was removed. He suffers ongoing physical symptoms from his injury.

1. Ahmed was treated at Royal Melbourne Hospital for repair of the through-and-through gunshot wound to his right forearm.

1. Shohani was treated at Northern Hospital for a gunshot wound to his left forearm. He sustained a fracture to the radius. The bullet was removed during his treatment.

1. On 17 April 2019, someone destroyed a Suzuki vehicle parked in Simmons Street, South Yarra, mistakenly believing it to be the Suzuki which you had left at that location.

Disputed facts

1. At the heart of submissions made on behalf of each of you, Elliott and Fares, as to how I should view your involvement in these crimes was the sworn evidence given by you, Elliott, in the trial. There is no need for me to summarise the evidence in any detail now, but I have had regard to all of your evidence.

1. In your sworn evidence, before giving an account about the events of 14 April 2019, you gave evidence about the nature of your relationship with Nabil. As for what turned out to be the weapon used in the attack, you claimed that you had received it in a backpack with some other items from your father about a month before the shootings. At your father’s direction, you, Elliott, gave the backpack to you, Fares for safe keeping. You, Elliott, claimed that on the morning of the events in question, you received a number of messages from Nabil on an encrypted application telling you that he wanted you to go to Love Machine and let off some ‘warning shots’ at the front of the club. You claimed that he told you to get two ‘hotties’, slang for stolen motor vehicles and to enlist the assistance of you, Fares, as the driver. Indeed, you asserted that your father had spelt out to you in some detail how the plan was to be enacted.[2] You, Elliott, claimed that you expressed your reluctance to your father to be involved in this enterprise, asking if he could get someone else to do it, but that he told you to ‘shut the fuck up and get ready’.[3] You said that you messaged Fares on Wickr, telling him what your father required. You stated that he started freaking out and did not want to be involved. You, Elliott, claimed that you told Fares that the two of you had no choice. You put pressure on him. In the end, he relented and agreed to be involved. The two of you met shortly after this out at the location of the stolen Porsche in Wollert.

   [2]Trial 1122.

   [3]Trial 1120.

1. You gave detailed evidence about the movement of the Porsche and the Suzuki to South Yarra. Once the Suzuki had been placed in position for later use, you moved into the passenger seat of the Porsche. You, Fares, got in the driver’s seat. You, Elliott, were armed with the handgun which you claimed had been brought to Wollert by Fares. You racked the firearm by pulling back the mechanism.

1. You gave an account of the reason for the repeated passes of the Porsche past the front of Love Machine. Every time you went around past the club, you kept telling yourself that this would be the time, but you kept on getting cold feet. You claimed you couldn’t do it. Something was pulling you back. The two of you were freaking out, as you put it. On the final run, the vehicle was pulled over to the left. You looked at each other, and the decision was made to proceed with the plan. You claimed that you pulled a balaclava down over your head seconds before the shootings.

1. As the Porsche drove past on that final run, you leant back in your seat with the gun in both hands, turning around somewhat, and fired four shots, pointing upwards, so you claimed. You intended to shoot into the air, with the bullets going upwards, not hitting anyone. You did not see anyone get hit.

1. The vehicle was driven quickly away, with the plan to change into the Suzuki abandoned because you panicked and did not feel comfortable enough to incinerate the car you were in. You travelled to Wollert where the Porsche was incinerated by the two of you. You both then went home.

1. You claimed, Elliott, that having gone to sleep, you were woken by the sound of Fares knocking on your front door. You let him in and he then informed you that people had been shot and were dying in hospital. You claimed that this realisation left you with an ‘ugly feeling’.[4]

   [4]Trial 1147.

1. In her oral submissions before me, Ms Condon, on your behalf, Elliott, relied on what she called two central planks. The second of these was a contention advanced on your behalf that your father Nabil was the person who ‘devised the retributive attack’ upon Love Machine. It was implicit in her submission that such a finding would be as to a mitigating feature. Ms Condon acknowledged that this would mean that it would be for you to prove the contention on the balance of probabilities.

1. Before making this submission, Ms Condon conceded, ‘There is no doubt that the jury verdict signals complete and utter rejection of Mr Elliott’s assertions insofar as his state of mind is concerned’.[5] Notwithstanding that concession, Ms Condon asserted that the jury verdict shed no light on whether there was an acceptance or rejection by the jury of your claim that you had received instructions from your father to carry out the attack, or that he was the ultimate architect of the attack. She urged me to conduct a ‘discriminating assessment’ of your evidence, consistent with the jury verdict, concerning the role of your father in the plan.

   [5]Plea 67.

1. Ms Condon accepted that there was no direct evidence, other than your own sworn account, to support the conclusion that Nabil devised the attack upon Love Machine. She submitted, however, that the conclusion would be capable of being inferred from what the evidence indicated about the character of Nabil, as being an entrenched criminal prone to extreme violence with easy access to firearms, and what the evidence showed about your own immaturity and the dynamic of the relationship with your father, including the knowledge Nabil would have had that he could readily exploit you and use you as his agent. As noted above, Ms Condon also urged me to be willing to act on some aspects of your sworn evidence at the trial, specifically, that you did engage in encrypted contact with Nabil in the lead-up to your crimes, and that he was the person who devised the concept of a retributive attack upon Love Machine.

1. The prosecution, on the other hand, for whom Mr Bourke KC and Ms Karamicov appeared, submitted that the only source of evidence of the involvement of Nabil in the attack was you in the evidence you gave at trial, which in its central respect was rejected by the jury. In their written outline and oral submissions, the Crown submitted that your evidence was the only source of evidence indicating that you were in any way acting on the instructions of Nabil. You were not accepted by the jury as a truthful witness. No independent evidence would indicate you were acting on Nabil’s instructions. On the question of whether there were any instructions given to you and what they may have been, Mr Bourke put forward a number of possible scenarios for the commission of the crimes, from the position at one end of the spectrum where there were no instructions and you committed the crimes entirely off your own bat, to the position at the other end where you received instructions from Nabil to commit murder, and followed those instructions. There were other positions between those two extremes.

1. Mr Bourke submitted that the pathway by which you and Fares reached the position of deciding to travel to Love Machine and shoot people with the intention of killing them matters little. Irrespective of what the scenario was, you reached your agreement and then carried out the crimes in the absence of any coercion and unaccompanied by any reluctance which may tend to mitigate your conduct.

1. The starting point of any consideration of what were the factors which motivated you, Elliott, to commit these crimes, is the verdict of the jury which, as acknowledged by your counsel, shows a complete rejection by the jury of your claim, given on oath, that when you fired the four shots in question, far from intending to kill or even injure any person, you intended to fire harmlessly into the air. The jury showed by their verdicts that at the time you fired each of the four shots, you intended to kill.

1. As acknowledged by your counsel and the Crown, the jury verdicts did not reveal any view the jury may have formed as to the rest of your evidence, or particular portions of it. It remains for me to reach any conclusions I might properly reach on the evidence, consistent with the jury verdict, bearing in mind some important propositions. First, any matter in mitigation sought to be relied upon by an accused person must be established by that accused on the balance of probabilities. Secondly, any matter of aggravation sought to be relied upon by the prosecution must be proved by the prosecution beyond reasonable doubt. Thirdly, it will be for the sentencing judge to determine the matters about which a decision can legitimately and should be made. And fourthly, in some instances, there may be important matters of the background of the crimes in question which may remain opaque and about which a definitive decision cannot be made.

1. Your account on oath of having received an order from your father to let off warning shots at the front of Love Machine was an integral part of your central claim that when your fired the four shots, you intended for them to go harmlessly into the air. I would suggest, without making any such formal finding, that the jury verdict likely means that the jury did not accept that your father told you any such thing. That does not mean, however, that he may not have given you some other directions, and does not mean that he may not have been the originator of the plan to attack Love Machine.

1. In my opinion, in view of the substantial dishonesty attaching to your claim as to the true nature of your intention at the time of firing the shots, it would be a dangerous thing to attach too much credence to any aspect of your evidence which may tend to paint you and your conduct, Elliott, or for that matter, you and your conduct, Fares, in a beneficial light. There are some aspects of your evidence, Elliott, which I might be inclined to accept were truthful. As for important matters, however, advanced by you to your advantage and the advantage of your co-offender in these crimes, including the contention that your father told you to launch an attack upon Love Machine, I would not be prepared to act on your account, unless it was strongly supported by other evidence.

1. Your counsel Ms Condon conceded that there was no direct evidence outside of your sworn account to support the conclusion that Nabil devised this attack. She invited me to reach that conclusion on the basis of inferences which I could draw from evidence as to the criminal and violent disposition of your late father and your immaturity and the nature of your relationship with Nabil.

1. To my mind there are a number of possible scenarios behind your offending, as touched upon by the prosecution. It is entirely conceivable that, having spoken with your brother about his ejection from the club, and feeling familial loyalty towards him and the Maghnie family, and perhaps a desire to please your father, you embarked upon this offending quite independently of any suggestion or order by your father. Some aspects of your personality structure as attested to by the psychologist Mr Newton, as well as what the evidence revealed about your relationship with your father, may give credence to this possibility.

1. Ms Condon submitted on your behalf, Elliott, that absent your familial ties with Nabil, your role in these crimes is totally inexplicable. She submitted that the explanation lay with Nabil, and the contention that he told you to launch an attack upon Love Machine. I do not accept that there would be anything inexplicable about your crimes absent some intervention by Nabil. As I said, you had direct contact with your brother Ali in the aftermath of his ejection from the club. The evidence shows that Ali was extremely angry and affronted about his treatment at the hands of security staff at Love Machine. Even if you had no personal grievance against Love Machine, you would have been well aware that your father had such a grievance. As I have said, it would be a perfectly reasonable scenario that you, yourself, motivated by familial loyalty towards your brother, and perhaps by a desire to impress or please your father, chose to act.

1. At the other extreme, it is not beyond the bounds of possibility that Nabil gave you a direct order to go and commit these crimes. I make the observation, in that regard, however, that this would seem highly unlikely. It would be a strange thing indeed for a father who was an experienced criminal and knew he was the subject of police attention to deliberately involve his young son in murders carried out at the front of a nightclub which would undoubtedly be quickly tied to the expulsion of another of his sons from the club only a short time before. He would be laying himself and his son, that is, you, Elliott, open to the almost inevitable trauma and concern of a police investigation and likely prosecution. The use of encrypted devices would not shield either himself or you from the scrutiny which would inevitably follow. Furthermore, he would expect that any attack upon Love Machine would necessarily attract police scrutiny of his young son, Ali.

1. There is no independent evidence which would support the contention that Nabil devised this attack. I do not accept your own evidence indicating that was so. In my view, no inferences could properly be drawn which would advance the proposition urged upon me by Ms Condon. In the circumstances, I am not satisfied on the balance of probabilities that you received any instruction or order from your father. You may have done. You may not have done. I reach no firm view on the matter.

1. Having said that, in my view, the Crown was correct in its submission that the pathway by which the two of you reached the position of deciding to travel to Love Machine and shoot people with the intention of killing them matters little. Even had I been satisfied that Nabil was the person who devised this attack, in one form or another, that would hardly absolve you, Elliott, of full responsibility for your own murderous actions.

1. It was the position of the Crown in its submissions to me that there was independent evidence inconsistent with the contention raised in your evidence, Elliott, that you and Fares were reluctant participants in these crimes. It was contended by the Crown that there would be insufficient evidence for the Court to conclude that either one of you was a reluctant participant.

1. On your behalf, Elliott, Ms Condon submitted that a finding of your having been a reluctant participant would only flow from a finding that Nabil had devised the plan and communicated that to you in some way. She did not otherwise seek to make any submission that you were reluctant. She acknowledged that a finding of your having been reluctant would be a matter in mitigation in respect of which you would bear the onus of proof.

1. In my view, the only evidence pointing to any reluctance on your part was to be found in your sworn evidence. I do not accept your evidence in that respect. Bearing in mind all of the acceptable evidence in the case, I do not consider that any finding of your having been a reluctant participant could be made. Indeed, I believe that there is nothing to suggest that, at all stages, you were anything other than a willing and enthusiastic participant.

1. In your case, Fares, your counsel Mr Thomson, who appeared with Mr Terry on your behalf, submitted that the events in which you involved yourself were entirely out of your control. He submitted that whether or not I found that Nabil was the person who directed the crimes, you most certainly did not.

1. Mr Thomson further submitted that I should be satisfied that you were a reluctant participant in the offending. He invited me to reach such a conclusion based amongst other things on the evidence of Elliott in that regard, which evidence, he submitted, I should accept, notwithstanding the rejection by the jury of Elliott’s evidence about his state of mind at the time of firing the shots. He submitted that Elliott’s account as to your reluctance was entirely believable, because you, Fares, had no motive to get involved in these crimes at all. He submitted that you had never been to Love Machine and had no beef with the establishment and knew nothing about how Ali came to be kicked out. All you had was misguided loyalty towards your friend Elliott.

1. Mr Thomson, dealing with the Crown’s contention that your rapid response to Elliott’s request was inconsistent with reluctance, submitted that the ‘inevitable repercussions had [you] not come through with the car keys and backpack’[6] made it likely that Elliott had exerted pressure on you to participate. He pointed also to the content of phone calls between the two of you showing that Elliott exercised a commanding position relative to you.

   [6]Fares outline [15].

1. In seeking to establish that you, Fares, were a reluctant participant in these crimes, Mr Thomson faced the same difficulty faced by Ms Condon in making good a number of her submissions. The contention of Mr Thomson that you were reluctant relied almost entirely on the sworn evidence of Elliott. In the circumstances of Elliott’s evidence having been rejected by the jury in its critical respect, I would be slow to accept that his evidence was truthful insofar as it touched on your reluctance. It is a clear enough indication of the way in which Elliott’s evidence advanced both his own and your interests in the trial that your counsel did not ask him a single question in cross-examination.

1. Mr Thomson sought to bolster his reliance on the evidence of Elliott by submitting that Elliott’s account was entirely believable because you, Fares, had no motive to get involved in the crimes at all.

1. In the end, having considered Mr Thomson’s submission that I should find that you were a reluctant participant in these crimes, I could find no acceptable evidence which would establish that mitigatory feature, accepting for the purposes of the discussion that such a finding would actually be mitigatory. I do not accept Elliott’s evidence in that regard. No other evidence would suggest that you were reluctant. Indeed, the rapidity with which you answered the apparent call to arms by Elliott, the degree of planning of the crimes with which you involved yourself, to which I will turn later, the critical part you played in the offending, your conduct in the immediate aftermath of the crimes, and your continuing relationship with Elliott after the crimes, in which you remained his close and trusted friend, all bely your claim of reluctance.

1. Turning to the other submissions made on your behalf, first that the events in which you involved yourself were entirely out of your control and that you were not the person who ‘directed’ the crimes, whilst I can readily accept the second of these propositions, I do not accept the first. You were not some helpless puppet behaving at the whim and subject to the control of others as you went through all of the steps leading up to your final involvement in the crimes you committed in company with Elliott. You were an adult, some three years older than Elliott. You were of normal intelligence, and not suffering from any mental impairment or condition which would have obscured from your clear view the shocking and criminal nature of the conduct you were contemplating. You were a close and trusted friend and associate of Elliott and Nabil, but these relationships did not relieve you of the ability or responsibility to make your own decisions. The initial approach by Elliott to involve yourself in the offending could and should have been met by almost instantaneous rejection. Every step of the way from Wollert to that fateful scene in Prahran provided ample opportunity for you to reflect on the outrageous path you and Elliott had chosen, and to desist. That you did not do so says much about your strong friendship with and sense of loyalty towards Elliott, and perhaps Nabil as well, and also your willingness to engage in serious criminality.

1. I reject the contention advanced on your behalf, Fares, that these events were in any way out of your control.

Motivation for offending

1. I have already had a good deal to say, Elliott, about the background to your crimes. I am not satisfied that you were told by your father to go and commit these crimes, or any attack upon Love Machine. I reject any contention that you were a reluctant actor in your crimes. In your case, Fares, whilst I am prepared to sentence you on the basis that you were not the director of this offending, I reject the contention that you were in any way reluctant.

1. Whilst the precise pathway leading to the decision by you, Elliott, to carry out these crimes may be unknown, it is clear to my mind, and I am satisfied beyond reasonable doubt, that your reason for involving yourself in this planned attack upon Love Machine was directly related to the expulsion of your brother Ali from the club two hours or so before the attack. You saw fit to launch this public attack upon Love Machine in retribution for the expulsion of your brother from the club. The attack was designed to send a clear and public message to Love Machine, and was carried out in extravagantly violent fashion. At the heart of the attack was the motive of revenge. I am satisfied beyond reasonable doubt of this fact, which is a significant matter in aggravation.

1. In your case, Fares, whilst you may have had no personal beef with Love Machine, I do not accept that you had no motive to get involved. Elliott was your close friend, and you were a friend to the Maghnie family more generally, and certainly to Nabil. The young brother of your close friend had, as you may have perceived it, been harshly and inappropriately dealt with by security staff at Love Machine. Your friend, I am prepared to accept in your favour, called upon you for assistance. You were ready and willing to involve yourself in what I am satisfied beyond reasonable doubt you knew to be an attack motivated by the desire for vengeance. You may well have acted out of loyalty to your friend and his family. That provides not the slightest excuse for your conduct. Nor does it make you crime a motiveless one.

Extent and duration of planning and preparation

1. An issue arose in the plea as to the extent and duration of planning of these crimes. The Crown submitted that the crimes were planned and premeditated over a period of approximately 2 hours,[7] and that the high degree of planning led to the faultless execution of the plan. Ms Condon on your behalf, Elliott, took issue with this characterisation. She submitted that the planning was ‘inherently and necessarily limited’.[8] Mr Thomson on your behalf, Fares, took issue with the duration of the planning asserted by the Crown, and the characterisation of the execution of the crime as faultless, pointing to the fact of the Suzuki getaway car being left near the crime scene, and the wrong Suzuki being, in the end, incinerated. As to the duration of planning for the crimes, Mr Thomson submitted that the planning towards the commission of the actual crimes committed here as opposed to some lesser attack upon Love Machine may have been much less than the two hours posited by the Crown. Indeed, he went as far as to submit that the plan to commit murder, hatched between the two of you, may have arisen in the 15 or so minutes during which you were both driving around in the Porsche in the Prahran area leading up to the shootings.

   [7]Crown outline [30].

   [8]Elliott outline [33].

1. Notwithstanding their submissions, neither Ms Condon nor Mr Thomson disputed that the crimes you both committed were planned and deliberate ones.

1. In my view, every aspect of your crimes, including everything in the lead-up to, execution of, and aftermath of, the shootings, bespeaks a high level of preparation and planning over a significant period of time. In that latter respect, I reject Mr Thomson’s contention that the planning of this crime may have extended for as short a period as 15 minutes. That defies sensible belief.

1. The chronology of events I set out earlier in this sentence indicates that a decision to launch a violent attack upon Love Machine had been agreed to by each of you when you each left your home that morning and made your way to Wollert, arriving at the location of the stolen Porsche, one of you armed with a loaded handgun and equipped with a balaclava. The motivation for the contemplated attack was clearly reprisal against Love Machine for the treatment meted out to Ali. The use of not one but two stolen motor vehicles to ferry you both to a location close to Love Machine and the arrangements which had been made in advance to be in a position to destroy both motor vehicles were telling indicators of the level of planning and preparation. The Suzuki was left at a convenient location in South Yarra, intended for use as the final getaway car after the Porsche had been destroyed. The fact that this did not eventuate takes nothing away from the significance of the use of two stolen motor vehicles in an intended crime for the purpose of avoiding apprehension. This showed a serious level of planning.

1. As for the repeated passes along Little Chapel Street in front of Love Machine, the Crown described the four laps preceding the final pass as ‘reconnaissance laps around the nightclub’.[9] It was submitted that on the fifth lap, when a clear run along Little Chapel Street was available, the shooting occurred. Ms Condon challenged what she described as the ‘sinister overtones’ contended for by the Crown. She submitted that your evidence, Elliott, about why all these laps of the club occurred, was the only available evidence on the matter. It would be ‘abject speculation’ to conclude that these were reconnaissance laps designed to enable the crime to be carried out.

   [9]Crown outline [12(i)].

1. I do not accept that you told the truth when you gave evidence before the jury explaining the reason for the repeated laps past the club. In my view it would be impossible to sensibly view these laps as anything other than steps taken by both of you to prepare yourselves for the better execution of the criminal plan upon which you had settled. If it would be necessary for me to be so, I am satisfied beyond reasonable doubt that during these laps, the two of you had long since decided upon your course of action, and were simply making careful observations of the scene and the proposed escape route to facilitate the carrying out of the crimes and your successful escape from the scene.

1. The fact that you, Elliott, managed to shoot five people with the four shots you fired in quick succession, killing two of them, was to my mind nothing to do with ‘remarkably terrible bad luck’,[10] as was submitted by Mr Thomson on behalf of you, Fares, but rather, a clear reflection of a terrible plan put into devastating effect by two people working cohesively as a team. By that time, you and Fares knew the proposed crime scene well. After a pause for almost a minute some distance down the road from the club, the two of you, satisfied that you were ready, proceeded past Love Machine. With you, Fares, driving the vehicle at a steady and reasonably slow speed[11] alongside and past the front of the club, you, Elliott, having wound down the window, leant partially out of the window, aimed back towards the security personnel, and using both hands to aim, fired the four shots.

   [10]Plea 230.

   [11]On that score, I am not satisfied that the vehicle was slowed down immediately prior to the shootings.

1. Your escape from the crime scene, notwithstanding your bypassing of the Suzuki, was well executed. You managed to navigate your way all the way out to Wollert without being apprehended. Then, without further ado, you effectively and efficiently destroyed the Porsche before successfully making your way home. Some days later, efforts were made to destroy the Suzuki you had left in South Yarra. The fact that the wrong vehicle was destroyed renders no less telling the fact that the decision to incinerate the Suzuki was in keeping with an overall criminal enterprise that was far from amateurish.

Youthfulness

1. In your case, Elliott, central amongst the matters relied upon in mitigation, and described by Ms Condon as the first plank to her submissions, was your young age at the time of your offending and now. Ms Condon submitted that your youth and immaturity at the time of the offending should be considered to significantly reduce the moral culpability which would otherwise attach to your decision to carry out these crimes. She further submitted that the importance of rehabilitation is accentuated by your youthfulness. She pointed to some of the evidence of Mr Newton, to which I will turn shortly, as confirming your immaturity. She also submitted that the context of your offending, in which you, a person of relatively low intellect, had disengaged from education and were engaging in significant drug use, was also relevant to your moral culpability.

1. Ms Condon submitted that your offending ‘cannot be divorced from the malevolent influence [Nabil] had over his son’[12] and ‘must be seen contextually through the prism’[13] of Nabil’s influence over you, his young and immature son.

   [12]Elliott outline [3].

   [13]Elliott outline [8].

1. Ms Condon noted the comments of Redlich JA in Azzopardi v The Queen[14] setting out a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration.[15] She also relied upon the statements of the Court of Appeal in DPP v Pan[16] and in Buckley v The Queen.[17] Whilst acknowledging what the authorities have said about the reduced weight to be given to youth the more serious the offending, it remains an important, indeed a central matter in your case, she submitted.

   [14](2011) 35 VR 43 (‘Azzopardi’).

   [15]Ibid [34]-[36].

   [16][2022] VSCA 98 (‘Pan’).

   [17][2022] VSCA 138.

1. In your case, Fares, your youthfulness was also relied upon. Mr Thomson, relying in part upon the report of Dr Barth, described you as someone who at the time of your crimes was ‘naïve, immature, easily influenced and easily led’.[18] He, too, relied on the decision in Pan, submitting that the position in that case is ‘not that far distant from this case’.[19] He advanced your young age as an important sentencing consideration.

   [18]Fares outline [5].

   [19]Plea 237.

1. The Crown acknowledged that your age, Elliott, and yours, Fares, must be given appropriate weight in the sentencing process and is a significant matter, but noting a number of the authorities including DPP v Lawrence,[20] submitted that in light of the seriousness of the offending, cannot be permitted to overshadow the other purposes for which sentence must be passed upon each of you.

   [20](2004) 10 VR 125 (‘Lawrence’).

1. Ms Karamicov, in submissions made after the defence submissions, asserted that the strong reliance placed on youthfulness in the submissions on behalf of each of you, Elliott and Fares, ran contrary to the well-established law in Lawrence and other decisions as to how youthfulness should be treated in the case of exceptionally serious offending. She distinguished the position of each of you from the position of Pan. Ms Karamicov expanded upon a submission made earlier by Mr Bourke that your crimes can be characterised as adult offending. By their nature, yours are not crimes indicative of immature minds, submitted Ms Karamicov, but reflect ‘a more considered, focused, and determined adult thinking’.[21] Yours were not actions committed in a flurry of activity in a quick, ill-considered response to something which had occurred. Yours were premeditated crimes committed for reasons of revenge.

   [21]Plea 286.

1. A long line of authority dictates that the youthfulness of an offender may be a primary consideration in sentencing, and that in such a case, rehabilitation is usually far more important than general deterrence.[22] That is not always the case, however, and the law has recognised that there will be cases in which factors such as youth and rehabilitation would take a ‘back seat’ to other sentencing considerations.[23] In considering the authorities on the topic in Azzopardi, Redlich JA (with whose judgment the other members of the Court of Appeal agreed), stated:

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory considerations of youth be viewed as all but extinguished.[24]

[22]R v Mills [1998] 4 VR 235.

[23]R v Wright [1998] VSCA 84 [6]; Director of Public Prosecutions v Lawrence (2004) 10 VR 125 [60].

[24]Ibid [44].

1. There was a later confirmation of the principle by the Court of Appeal in Siilata v The Queen,[25] a case concerning an offender sentenced for aggravated carjacking who was 18 years old at the time of the offence and 19 at the time of sentence:

True it is that the applicant was young but, as the cases make plain, the more serious the offending, the more the mitigating effect of youth diminishes. Denunciation, general and specific deterrence must have greater emphasis as the seriousness of the offence increases. That must be so in this case.[26]

[25][2019] VSCA 277.

[26]Ibid [31] (citations omitted).

1. Since each of you relied strongly on the decision of Pan, I should say something briefly about that decision. In my view, it is of little assistance to you, other than as being one of many cases which have held that the young age of an offender will remain relevant even where serious offending has been carried out.

1. Having set out the relevant principles, the Court in Pan noted:

Applying those principles here, it is plain that the judge was entitled to take into account, as she did, the respondent’s age and level of maturity in assessing his culpability for the offending. Not only was the respondent relatively young, he was markedly immature in his outlook. The judge’s characterisation of the offence as one committed by an immature young man unable to control his temper fuelled by a pernicious anger about Mr Apet’s cooperation, was open to her and enabled her to conclude fairly that this was not a revenge killing. That conclusion served to place the offending in its proper context. In our view, the respondent’s age was a powerful factor that the judge was entitled to take into account and give great weight to in sentencing him.[27]

[27]Pan [51] (emphasis added).

1. It can readily be seen that the circumstances in Pan and the nature of his crime were very different from those in this case. In no way could your offending be characterised as was Pan’s in the highlighted passage above.

1. In the case of each of you, whilst the mitigatory significance of your youth at the time of your crimes and now is not entirely extinguished, the extreme gravity of your offending – conceded by your counsel – means that your youth has much less of a part to play in sentence than would usually be the case. It is clear that the sentencing objectives of deterrence, denunciation, just punishment and protection of the community must be very prominent in the sentencing calculus in each of your cases, and that the weight to be attached to your youth is correspondingly reduced. That is not to say that I disregard your youth. I still have regard to it. Indeed, as will become apparent when I turn to consider the question whether sentences of life imprisonment should be imposed, and how long any non-parole periods should be, it remains an important consideration in this case.

1. Insofar as each of you has relied upon the immaturity which apparently was a characteristic of each of you at the time of your offending, and remains part of your makeup, I accept the prosecution contention that your offending does not bear the hallmarks of immature, ill-considered, childish offending by young people, but rather, the features of serious, planned adult criminality. In my view, it is notable that your offending was carried out for a malignant purpose which is entirely clear on the evidence. It is somewhat difficult to see that the immature personalities of each of you had any significant part to play in your offending.

Remorse

1. Whilst acknowledging that you, Elliott, have not expressed remorse for the crimes of which you have been found guilty, Ms Condon submitted that you have, by your invitation to the jury to find you guilty of manslaughter, accepted criminal responsibility for the acts that caused the deaths and injuries to the victims. She pointed to the limited areas of dispute in the trial, noting your acceptance that you were the front seat passenger who fired the shots. She touched on some statements you made to Mr Newton expressing your sorrow for the effects of your crimes, and also the evidence given by your former girlfriend, Sara Mohammed, in the trial as to the effects upon you. She submitted that you have demonstrated remorse and personal responsibility for the loss of life and injury that occurred as a result of your actions.

1. In the course of her submissions on the significance of your invitation to the jury to find you guilty of manslaughter, Ms Condon referred to the decision of Romero v The Queen,[28] in which case the Crown conceded that the fact of the applicant having invited the jury to find him guilty of defensive homicide in lieu of the crime of murder with which he was charged was a relevant mitigatory factor to be taken into account as it contributed to some degree to the facilitation of the course of justice.

   [28](2011) 32 VR 486 (‘Romero’).

1. In my view, your invitation to the jury through your counsel, Elliott, to find you guilty of manslaughter did not facilitate the course of justice. You sought to be acquitted of the crimes of which you were actually guilty, and the invitation to the jury was a component of that designed to further your own interests. Your position cannot be likened to that of the applicant in Romero whose invitation to the jury conceded the murderous intent which was required to be proved both for the crime of murder and the crime of defensive homicide. Nor did the matters which you conceded in the trial reflect any aspect of remorse. Rather, these matters reflected your appreciation of the overwhelming evidence which would show that you were the man seated in the passenger seat who fired the fatal shots.

1. Your statements to Mr Newton do not evidence any genuine remorse on your behalf. As for your conduct as described by Ms Mohammed, I am not satisfied it was reflective of any remorse, as opposed to a state of some anxiety about your future prospects.

1. Remorse means deep regret or guilt for doing something morally wrong,[29] or deep and painful regret for wrongdoing.[30] It is a term referring to the fact or state of feeling sorrow for committing a sin.[31] 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.

   [29]Oxford English Dictionary, Online edition.

   [30]Macquarie Dictionary, Fifth edition.

   [31]Oxford English Dictionary, Online edition.

1. You maintain your innocence, as is your right. Such expressions of regret as you have made have not been accompanied by any acceptance of responsibility for what you actually did. 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.

1. In your case, Fares, Mr Thomson pointed to statements you made to your parents and your cousin in the aftermath of your crimes, and to the psychologist Mr Barth when he assessed you, as indicating your remorse. He pointed also to your offer to plead guilty to manslaughter before the commencement of the trial, and the invitation extended to the jury by Mr Thomson during his closing address to find you guilty of manslaughter, and to the limited cross-examination conducted on your behalf during the trial, as being pointers to your remorse.

1. In your case, Fares, as in the case of Elliott, I do not consider that there is any evidence of what could be considered genuine remorse for your offending.

1. I make it clear that the absence of remorse represents the absence of what might have been a mitigating feature, and is not an aggravating feature of itself.

Psychological material Elliott

1. In your case, Elliott, a report prepared by Patrick Newton, who assessed you in prison in July 2022 after your conviction, was tendered in evidence,[32] and Mr Newton gave sworn evidence before me. I note at the outset that it was not asserted on your behalf that any of the limbs of R v Verdins & Ors[33] should be considered to be enlivened in your case.

   [32]Exhibit JE2 on the plea.  

   [33](2007) 16 VR 269 (‘Verdins’).

1. Mr Newton described you as ‘an immature man with an unsophisticated grasp on emotional and interpersonal matters’.[34] He set out your family background, focusing on your commencement of contact with Nabil at the age of 15 and the effect of that upon you. It seems that in your consultation with Mr Newton, you maintained the position you had adopted at your trial concerning your intent at the time of firing the shots. He set out the feelings of regret you expressed concerning the consequences of your actions. Mr Newton indicated that you neither reported nor manifested any symptoms suggestive of a mental disorder during the interviews, including any mood disorder, anxiety-related disorder, adjustment disorder, or psychotic disorder. He stated that there was no indication to suggest you were suffering from any mental disorder at the time of your offending. Mr Newton did not formally assess your level of intelligence, but expressed the view based on your history that it likely falls at the low end of the average range.

   [34]JE2 [10].

1. Mr Newton considered you to be, even now, an immature person for your age. Your understanding of your emotional world is shallow and formative. You felt keenly the lack of appropriate role models, turning to the dysfunctional mores and overt masculinity of your father over the more gentle approach of your mother. As a result, you ‘internalised a view of the world as an uncaring and competitive place where only the strong can prevail and where one must take advantage wherever and whenever it presents itself or else risk being exploited or left behind’.[35] He stated:

He learnt to eschew as unbecoming considerations of empathy, sensitivity and cooperation, and to replace them with a pragmatic focus on pleasure through risk-taking and acting out. Further, he has normalised the instrumental use of violence and become inured to its broader context.

Consequently, Mr Elliott’s moral reasoning has come to be founded on a ‘pragmatic’ outlook that emphasises the outcome desired rather than the ends employed; his social reasoning has been based on displaying masculinity and overt power; and his ethical orientation has been characterised by a failure to internalise the prosocial norms which might otherwise have guided him into functional work and adaptive relationships.[36]

[35]Ibid [47].

[36]Ibid [47]-[48].

1. Mr Newton described the above personality traits as ‘pernicious and dysfunctional’, and such as to leave you with a large number of risk factors for further violent and general offending. You do not currently meet the criteria for a personality disorder, but remain at elevated risk of developing an antisocial personality disorder. There is a limited window for these concerns to be addressed or reversed.

1. In his concluding comments in the report, Mr Newton stated:

Mr Elliott presents as an immature man with significant behavioural problems and maladaptive personality features. Together with the negative influence of his father these issues provided a context for his offending conduct.[37]

[37]Ibid [52].

1. Mr Newton indicated, in recognition of the significant term of imprisonment which you will inevitably receive, that you will face a challenging path if you are to return to productive life in the community. As he put it:

Even under the best of circumstances the nature of his problems is such that his prognosis cannot be better than guarded. Much will clearly depend on how he utilises his further time in custody and the attitude he espouses when eventually released.[38]

[38]Ibid [54].

1. In his sworn evidence before me, Mr Newton expanded upon the contents of his report. He noted the devotion you showed to Nabil, and the way in which you immersed yourself more and more in the lifestyle to which he introduced you, and which you embraced enthusiastically. In respect of your immaturity, Mr Newton considered this to ‘underpin’ your offending, inasmuch as you decided to be involved to impress Nabil. Notwithstanding your immaturity at the time, you had the ability to weigh the consequences of your actions. Mr Newton suggested that you have only ‘superficial awareness’[39] of the consequences of your actions for others.

   [39]Plea 77.

1. In cross-examination, Mr Newton reiterated his view that you perceive the world as a harsh and competitive environment, and that you want to be on the side of the strong:

so in order to ensure that, his social activities, his social reasoning is based upon …a calculus around strength and weakness, projection of those elements of power and masculinity, to make sure that that’s what happens.[40]

[40]Plea 81.

1. Further on, he opined:

so in general terms, his reasoning about moral issues is founded not so much upon what should I do, but what do I want to do, what do I want to achieve here, what’s the goal and then how do I get there.[41]

[41]Plea 82.

1. Mr Newton made it clear, however, that there is no distortion in your mind as to right and wrong, which you clearly understand, but rather, you tend to simply make a decision in particular circumstances to do the wrong thing to achieve the ends you desire if you think you can get away with it.

1. Mr Newton agreed that these aspects of your personality increase your risk of violent reoffending.

1. In respect of his opinion that you do not fully appreciate the consequences of your actions on other people, Mr Newton indicated in his evidence that you were unable to express to him ‘some degree of empathy for the suffering of the families, some degree of awareness of the gravity or the enormity of his conduct’.[42] Mr Newton saw your absence of empathy as an impediment to rehabilitation and as something which contributed to the ‘guardedness’ of his prognosis for you.

   [42]Plea 83.

1. At the conclusion of cross-examination, Mr Newton expressed the view that your maladaptive personality traits are not ones in respect of which you have any insight, and are ‘congruent with your sense of self’, making them difficult to treat.

1. In re-examination, Mr Newton opined that it is almost impossible to prognosticate with accuracy about what your risk of violent recidivism may be upon your release in future as there are too many intervening factors which would reduce the certainty of any prediction.

1. In my view, the opinions of Mr Newton, whilst providing some background to your crimes, do nothing to place your offending in a less serious or concerning context. Indeed, some of his evidence about your personality structure and lack of empathy was somewhat concerning. This much is clear. Whilst your immaturity may have led to your embracing so fully the poor example apparently set for you by your father, and may have had a part to play in your commission of these crimes with a view to impressing Nabil, there is nothing about your personality structure - your nascent personality disorder as it was described by Mr Newton - or your level of intellect which would in any way have obscured from your clear view and understanding the enormity of the criminal conduct which you embarked upon and carried out.

Psychological material Fares

1. In your case, Fares, you were assessed by a clinical psychologist, Dr Mathew Barth. He interviewed you in prison on two occasions in June and July 2022. A report from Dr Barth was tendered during the plea.[43]

   [43]Exhibit AF2 on the plea.

1. Dr Barth described you as an unsophisticated and immature man of low-average intelligence with good verbal skills who appeared to have a limited capacity to reflect meaningfully on your emotional experiences and behaviour. Results of psychological testing indicated you to be an insecure and self-critical young man with a tendency to act out your low self-esteem with reckless behaviour. There were no indications of any form of thought disorder or psychosis. Whilst you presented with ‘a propensity for simplistic and impulsive decision making’,[44] he did not consider your moral reasoning to be impaired. There was no indication that your cognitive functioning has ever been impaired to the degree that you were incapable of fully understanding the wrongfulness of your behaviour. Whilst you do not meet the full diagnostic criteria for a personality disorder, the problematic features of your personality and behaviour adjustment require ongoing psychological treatment.

   [44]Ibid [44].

1. Dr Barth noted that in his consultations with you, you did not wish to comment on the alleged offending in detail on legal advice. However, the version of events you related to Dr Barth was consistent with the evidence given by Elliott during the trial, that is, that you drove Elliott to the Love Machine with the intention that people would be scared by the firing of warning shots, in retaliation for the ejection of Ali from the club earlier that night.

1. Dr Barth carried out a violence risk assessment using the HCR-20 Version 3 assessment tool, the most widely used actuarial measure of violence recidivism. In summary, your results indicated that you are likely to pose a moderate risk of violent re-offending, with the most relevant risk being of complicity in acts of violence within a negative social group, rather than perpetrating violence of your own accord.

1. Dr Barth described your rehabilitative prospects as being ‘not futile’.[45] He noted in that regard that you remain a young man with good work skills, that you enjoy positive support from your family, and that you have been positively disposed towards engaging in psychological treatment.

   [45]Ibid [61].

Personal background and criminal history Elliott

1. You, Elliott, are the only child of what was described before me as the fleeting union between your mother Melinda and your father Nabil. You are now aged 21, having been born on 5 January 2001. You were raised by your mother in Broadmeadows in challenging circumstances. You apparently lacked male role models. You first met your father, who was in and out of gaol through your childhood, when you were 5 or 6. You were educated at Hume Central Secondary College until part-way through year 8, when you commenced an electrical apprenticeship organised by Nabil. This was short lived, and indeed, you have had no significant employment history. When you were about 15, you commenced to live with your father and your half-siblings at the Maghnie family home in Bundoora. The transition to living in a busy family home ruled by Nabil was confronting. Nabil, on your account, was an unpredictable and violent man. It is a reflection of Nabil’s lifestyle that he had been shot twice before you commenced living with him. He was heavily involved in criminal activity and a drug user. On occasions, he was physically violent towards you. You had used cannabis from the age of 14. In your father’s home, drug use was normalised, if not glamorised, and it became a big part of your life. Your relationship with Nabil was a tempestuous one, leading to your being told by your father to leave the home. For some time, you lived with family members before moving in with your brother AJ in Mill Park or Bundoora. That is where you were living at the time of your offending. During that time, your drug use further escalated. In the period leading up to the offending, you claim to have been regularly affected by cocaine and Xanax. In 2018, your relationship with Nabil recommenced after he reached out to you once more. In the six months leading up to your offending, on your account, you became schooled in criminal endeavour by your father. At the relevant time, you were in a relationship with Sara Mohammed, your first and only significant relationship. Ms Mohammed was in the early stages of pregnancy when you were arrested and remanded in custody. You have never met your son, Noah, who is now two years’ old. Your father, Nabil, was shot dead in January 2020 while you were in custody.

1. Two character witnesses were called on your behalf, the younger sister of Nabil, Fay Maghnie, and the sister of your mother, Kerrie Jergens. Their evidence pointed to the ongoing support you have received from your family.

1. You have a limited criminal history contained largely on the criminal record filed in your case. That history commenced with a finding of guilt for trafficking cannabis in 2016 and encompassed a number of convictions and findings of guilt for a variety of offences. Significantly, you were made subject to a community correction order (‘CCO’) for recklessly causing injury (‘RCI’), handling stolen goods, committing an indictable offence on bail and other offences at Melbourne Magistrates’ Court on 13 April 2019, that is, the day before the current offending. You had been arrested on that day by police in a car being driven by Fares. The charge of RCI on which you were sentenced on 13 April 2019 had arisen from an incident at St Kilda beach on 3 March 2019 in which you and two co-offenders carried out an unprovoked physical attack upon an innocent member of the public. The fact that you were subject to a CCO at the time of the Love Machine shootings is an aggravating feature of your crimes.

1. Also relevant is an incident which occurred on 18 June 2019, some two months after the Love Machine shootings. You apparently recruited a co-offender to retrieve a loaded handgun from your mother’s residence and deliver it to you, with the intention of using it to assault persons known to your former partner, Ms Mohammad. You pleaded guilty to conspiracy to assault and being a prohibited person in possession of a firearm in the County Court on 27 May 2022 and are, as I understand it, yet to be dealt with.

Personal background and criminal history Fares

1. You, Fares, are now aged 25, having been born on 15 June 1997. You are therefore 3 ½ years older than Elliott. You are the middle of three children born to parents of Lebanese heritage. You were predominantly brought up in the Lalor area and come from what was described by your counsel as a tight-knit Lebanese Australian Maronite Christian community. When you were young your parents frequently argued and your father was often absent from the family home. Your parents separated when you were 12. You and your sister went to live with your father, your brother staying with your mother. Your relationship with your father was a difficult one. The break-up between your parents was acrimonious. You had no contact with your mother for about four years, but returned to live with her when you were 16. Your relationship with your mother steadily improved, and you remained living with her up until your arrest. You also maintained some contact with your father. Your family have remained supportive of you since you have been in custody, and following your conviction.

1. You had an unhappy time in primary school, experiencing social issues and bullying. You attended Lalor Secondary School where you indicate that your behaviour deteriorated and you hung around with the wrong crowd. You started skipping classes and smoking cannabis. You left school at the beginning of year 10. After doing some work experience as a mechanic you completed VCAL and a pre-apprenticeship as a mechanic in Coburg. You worked briefly as a mechanic but did not enjoy the work. You then did a pre-apprenticeship as a bricklayer and worked in that field for some time. You returned to the mechanical field for a couple of years before gaining excavator and forklift licences. You returned to bricklaying and were carrying out an apprenticeship at the time of your arrest. You have had a number of employed positions and have engaged in educational courses during your time on remand. I am told that you are motivated to complete further educational and vocational training.

1. You have had one significant relationship which commenced when you were 18 and was quite serious, but ran into difficulties and came to an end largely due to religious differences between you and your girlfriend. You have had no significant relationships since that time.

1. You met Elliott when you were 16, and in spite of the age difference, you became friends. You ceased contact for a time when you were 19 because you found him too ‘full-on’ and you needed your own space. You renewed the friendship a year later, however, and became so close that you had daily contact. You also became close to the Maghnie family, including Nabil. You found some excitement in that association due to the notoriety of the family. You and Elliott would frequently use drugs and spend time together. You continue to view him as your best friend.

1. You have had a long-standing problem with drug abuse, involving cannabis, ecstasy and cocaine. You became a daily and problematic use of cocaine, and became progressively more entrenched in the drug subculture. You received some drug counselling following your conviction for trafficking cocaine in 2019. You found the counselling beneficial, but soon relapsed, and you were using cocaine regularly at the time of your offending. It was submitted on your behalf, in fact, that your cocaine use the evening before the shootings warped your judgment when Elliott rang you and asked for your assistance.

1. You have ceased your illicit drug use since being in custody and have completed a number of drug-related courses.

1. Your cousin Dany Abouchaya and both of your parents gave evidence on the plea. In addition, a large number of character references were tendered.

1. An investigation of headaches from which you were suffering in the lead-up to your trial revealed the presence of a colloid cyst in your brain. A CT scan on 20 January 2022 confirmed the presence of a single 6 mm ovoid lesion. You consulted with a neurosurgical registrar on 21 June 2022. There are no present signs of raised intracranial pressure or hydrocephalus. You were due to receive an MRI at the time of the plea hearing – indeed, the MRI was meant to have been long-since provided[46] - the plan being that you would be further reviewed post imaging. You continue to suffer from headaches which are treated with ibuprofen.

   [46]On 21 March 2022, the Chief Medical Officer of Correct Care Australasia, Dr Foti Blaher, gave evidence that Mr Fares had been urgently referred for an MRI scan on 27 January 2022 and was yet to receive this scan. At the plea hearing, some six and a half months on, Mr Fares was still waiting to be scheduled to undergo this scan.

1. Mr Thomson noted and I accept that whilst this colloid cyst is not presently showing any signs of harmful effects upon you, it is a condition which carries with it the potential for life-endangering effects, and will need to be monitored. The treatment you have received thus far in custody has been far from satisfactory, and you do not have the freedom to consult with a doctor of your choice in person. Mr Thomson urged me to take into account the uncertainty of your position and the fact that it will be more difficult for you to handle in the prison setting than if you were on the outside world. I do take these matters into account in your favour.

1. Your criminal history as contained in the criminal record filed in your case is quite limited. You have convictions for possessing a controlled weapon without an excuse, trafficking cocaine and negligently dealing with proceeds of crime arising from a single arrest on 29 January 2019. On the occasion of the search of the motor vehicle in which you had been found sleeping by the police, a number of zip lock bags containing cocaine and other items indicating your involvement in trafficking the drug were located. The weapons charge concerned a small pocket knife found in your glove box. You were made subject to a CCO on 5 February 2019. You were therefore subject to this CCO at the time of the Love Machine shootings, an aggravating feature of your crimes.

Conditions in custody

1. I take into account in sentencing each of you the onerous conditions in which you have been held in custody up to this point, and may continue to be held for some time, on account of steps taken by the authorities to prevent the spread of the COVID-19 virus within the prison population. In addition in your case, Elliott, I have regard to the fact that you have, up to this point, been subjected to, and may continue to be subjected to, a restrictive regime imposed upon you for your protection through no fault of your own. In your case, Fares, I have regard to the fact that you have been in a protection unit limiting your access to programmes and employment for all but one week of your time in custody. The likely duration of that situation is unclear.

Delay

1. In your case, Elliott, reliance was placed on the reasonably lengthy period of your remand in the harsh conditions to which I have referred. The duration of the delay has meant that you are now 21 and therefore subject to the serious offender provisions of the Act to which I will later refer.

Victim impact statements

1. The Court received five victim impact statements, four of them from loved ones, family members and friends of Mr Arow, and the other from Mr Tu’itufu, the victim of charge 3 on the indictment.[47] Four of the five statements were read aloud to the Court, one of them, that of Rebekah Spinks, by the author herself, the others by the prosecutor.

   [47]Indictment Number C1912748.3.

1. The victim impacts statements relating to Mr Arow paint a vivid picture of a wonderful and decent young man, who had the whole of a promising life still to live, and whose cruel death has caused almost unspeakable trauma and loss.

1. The position of Rebekah Spinks, Mr Arow’s girlfriend, has only to be stated for the enormity of her suffering to be well understood. Ms Spinks had welcomed Mr Arow, whom she calls Richy, into her life and the life of her family. In her life, she had waited a long time for the relationship she shared with Richy. She described the foundation of the relationship as being built solidly on a deep friendship of the trusting kind. She considered him to be her person, and was looking forward to a life with him. She was standing only a very short distance away from Richy, listening with her usual joy to the banter he engaged in with James (Mr Tu’itufu) and Aaron (Mr Osmani), when she heard the shots and saw Richy fall to the ground like a rag doll. She ran to him, her screams of anguish ringing out in the night, to be recorded by someone on a mobile phone and later replayed in the news media. Being unsure whether or not Richy had been shot, she felt hope as he gasped for breath. In the hours and days that followed, she prayed for a miracle which did not come.

1. In her statement, which she herself read to the Court, Ms Spinks spoke of the deep grief in which she is still engulfed. The death of Richy has totally changed her life, making it difficult for her to enjoy life, embrace new experiences, or, for that matter, walk down a street without fearing that she will be shot. She finds it challenging to ever feel happy around people, and as a result, sometimes feels that she is a burden to others. She spoke, also, of the additional pain caused to her by the protracted court proceedings.

1. Frith Williams, in her statement, cast light on the devastating effect of these events on her sister Rebekah and the wider family. As she put it:

That traumatic night, these perpetrators not only ripped a hole in Richy’s head – they ripped a hole in my sister’s life, and they left a hole in our family that will never be filled. The hopes of future family, future grandchildren, a happy extended family all collapsed in a split second.

1. In my view, those concessions were no more than reasonable, and indeed, unavoidable. It is clear to me that taking into account only their objective factors, the murders of which each of you have been found guilty are very serious ones falling well above the middle range of seriousness. Indeed, these crimes fall within the upper range of seriousness.

Section 5B(5) statement

1. 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.

1. 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.[58] 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.[59] I have endeavoured to do that in some detail during these reasons for sentence.

   [58]Muldrock v The Queen (2011) 244 CLR 120 [29].

   [59]Ibid [29].

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

Current sentencing practices

1. 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 in sentencing you for a standard sentence offence, 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.

1. This change in the law does not preclude me from having regard to sentencing principles established in previous cases.[60]

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

1. The Crown provided the Court, at the time of the plea hearing, with a table of cases in which sentences have been imposed for murder as a standard sentence offence. The table was current as to 8 August 2022. I have had regard to these sentences in arriving at the appropriate sentences for each of you.

1. 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.

Prospects of rehabilitation and the avoidance of a crushing sentence

1. 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’.[61]

   [61]The Act, s 5(1)(d).

1. On your behalf, Elliott, Ms Condon pointed to your young age, the fact that you will have a supportive family to whom to return upon your release, the fact that Nabil will no longer be able to exercise what Ms Condon described as his ‘malignant influence’[62] over you, the fact that you are now drug and alcohol free, and your generally good behaviour in prison as being matters supportive of the prospects of rehabilitation. She submitted that the community has a vested interest in your successful rehabilitation.

   [62]Elliott outline [93].

1. Ms Condon submitted that the Court, in setting both the head sentence and non-parole period, should be cognisant of the need to avoid a crushing sentence, by which she meant a sentence which would leave you without hope of a meaningful life outside prison after your release. She urged me to impose sentences which would ‘give weight, to the fullest extent possible, to [your] rehabilitation and the possibility of a useful life upon [your] eventual release’.[63]

   [63]Elliott outline [100].

1. In terms of the non-parole period to be imposed upon you, Ms Condon submitted that the circumstances of your case, particularly your youth, should lead me to the conclusion that it is in the interests of justice to fix a non-parole period below the statutory minimum period required by s 11A(4) of the Act.

1. In your case, Fares, Mr Thomson submitted that you have good prospects of rehabilitation, bearing in mind your limited prior convictions, your good employment history, your strong family support, and your previous commitment to participating in and supporting your family unit. He, too, urged me to avoid an overall sentence upon you that is crushing. He submitted that for reasons including your youth at the time of your offending, the inevitably lengthy head sentence, and your good prospects of rehabilitation, it would be in the interests of justice for me to impose a non-parole period less than 70 % of the head sentence.

1. Both of your counsel placed heavy reliance on the decision of the Court of Appeal in Pan, in which the Crown unsuccessfully appealed against a sentence which included a non-parole period that was approximately 66.7 % of the head sentence.

1. The Crown pointed in your case, Elliott, to your relevant criminal history involving the use of violence committed upon innocent members of the public, your subsequent involvement in the conspiracy to assault, and the worrying personality traits identified by Mr Newton and the latter’s guarded view as to your rehabilitative prospects as being relevant to an assessment by the Court of your prospects of rehabilitation.

1. In your case, Fares, the Crown pointed to your criminal history as being relevant. In respect of the question of your rehabilitative prospects, the Crown submitted:

Whilst it cannot be said that Fares’ prospects of rehabilitation are spent the court should be guarded in its assessment given that they would be largely dependent on [his] ability to address [his] drug use.[64]

[64]Crown outline [44].

1. It seems to me that in your case, Elliott, the clinical psychologist who assessed you was right to couch his opinion as to your rehabilitative prospects in the conservative terms that he did. As well as the very grave criminality in which you engaged, he noted a number of aspects of your personality which would increase the risk of future violent offending by you. In your case, Fares, I think it could reasonably be considered, at this stage at least, that your prospects of rehabilitation are somewhat more promising than those of Elliott.

1. I note in respect of the concept of the need to avoid a crushing sentence what was said recently by the Court of Appeal in Mohamed v The Queen[65]:

The preponderance of authority favours the view – with which we respectfully agree – that there is no separate sentencing principle requiring that a ‘crushing’ sentence be avoided. Rather, it is a particular expression of the fundamental sentencing principle of rehabilitation, which requires that the sentence to be imposed should, so far as possible consistently with the other sentencing purposes to be served, promote the rehabilitation of the offender.[66]

[65][2022] VSCA 136.

[66]Ibid [6].

1. In the case of each of you, of course, it is a very difficult, if not impossible, thing to accurately gauge your prospects of rehabilitation. On any view, you have long sentences of imprisonment in front of you. You are both young men. If and when you emerge from prison, it will be into a very different world. Your prospects of becoming useful and law-abiding members of the community will hinge on many things, including, significantly, whether you are able to remain free of the use of illicit drugs, and free of the troubling associations and criminal connections with which it would seem your lives were blighted at the time of your offending in this case.

1. Having said all of these things, I will take into account in sentencing each of you the need, wherever possible, to foster the prospects of rehabilitation.

1. The difficulty with giving effect to the submissions concerning the avoidance of crushing sentences is obvious enough in light of the gravity of your offending and the number of serious charges of which you have been convicted. It is perfectly plain and has been conceded by each of your counsel that a long head sentence of imprisonment is called for in each of your cases. You have each been found guilty of two murders, two attempted murders and a charge of ICSI. The charges of murder have, as one of the guide posts for sentencing, a standard sentence of 25 years which applies to an offence whose seriousness is in the middle of the range. Your murders both fall well above the middle. Were I to accede to the requests of each of your counsel to pass head sentences in years rather than life sentences for the murders, bearing in mind the need for some cumulation between the sentences on each of the respective charges, it is perfectly clear that very long total effective sentences would be inevitable for each of you. 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 sentences, and in addition, there is a provision of the Act which dictates a minimum period as the non-parole period depending on the length of the head sentence.[67] The result would be head sentences and non-parole periods which would inevitably both be very substantial, and would seem especially so to young persons such as yourselves who face the sad prospect of spending many of your best years in custody. Unfortunately, that is an unavoidable by-product of your heinous crimes, and the age at which you carried them out.

   [67]Section 11A(4).

1. In passing sentence upon you, I will bear in mind the prospects and hopes of your future rehabilitation. I will seek to avoid passing sentences upon you which would be crushing to your hopes of leading useful lives after your eventual release, should that in fact occur.

Protection of the community

1. The serious offender legislation dictates, as I have already mentioned, that in determining the length of the sentence I impose upon each of you on all charges after charge 1, I must regard the protection of the community from you as the principal purpose for which sentence is imposed. In light of the heinous nature of your crimes and the other circumstances of this case, protection of the community would have loomed large in the absence of the serious offender legislation in any event.

Important sentencing considerations

1. As I have already indicated, and has been conceded by your counsel, your crimes are exceedingly serious. The two murders, in particular, are extremely grave instances of those crimes. Whilst of course it is always possible to contemplate even more heinous crimes, your crimes of murder are clearly towards the top end of the range of seriousness. Set against the background of the expulsion of Ali Maghnie from Love Machine, an entirely trivial slight at most, the two of you set upon a plan which was outrageous, and indeed, evil. You carried it out very efficiently and effectively as a cohesive team, with retribution and the sending of a brutal and public message at the heart of your actions. You left behind a trail of utter destruction and devastation, and not only took away the lives of two entirely innocent and blameless men and wounded three others, but you forever damaged the lives of many others. Your crimes showed a complete disregard for the law, a distinct lack of normal human decency and humanity, and a callous disregard for the sanctity of human life. Yours were not spontaneous or impulsive criminal acts, committed in haste and without sufficient thought. These were well-planned, well-executed killings and shootings, carried out for reasons of vengeance. You had ample time as you prepared to act to reflect on what you were doing and to desist. You did not do so. Your crimes were more than simply an attack upon Love Machine, and the people you shot. Your crimes were an affront to normal, decent society.

1. I am satisfied that notwithstanding the young age of each of you at the time of your crimes, nothing stopped each of you from being fully able to appreciate the shocking nature of your intended crimes, and being fully responsible for your offending.

1. In the immediate aftermath of your crimes, you sought to evade responsibility. You displayed scant regard for the welfare of those you had shot. In my view, neither one of you has shown any genuine remorse for your unforgivable crimes.

1. To my mind, the important reasons for which sentence must be passed on each of you are just punishment, denunciation, general deterrence, specific deterrence, and protection of the community. You must be punished in a way which reflects the shocking seriousness of your crimes and amounts to an appropriate response to them. The sentence must communicate in clear terms this Court’s condemnation and disapproval on behalf of the community of your violent criminal conduct. The lives of Ahmad Osmani and Kur Richard Arow were precious. You took their lives away deliberately. You wounded three other people and endangered and terrified many others. You acted in the clear knowledge of the wrongfulness of your conduct, and in circumstances where you had ample time to reflect upon what you were doing and desist. In respect of general deterrence, the sentence I pass must bring it clearly home to any person who might be minded to carry out serious crimes of violence, extending to violence of such magnitude as to take the life of others in the community, that such conduct will be met with very strong punishment. You must each be deterred personally from any future violent actions to which you may be disposed. As for the protection of the community, that purpose will largely be met by the imposition of the long sentences of imprisonment which are inevitable for offending of this seriousness. Notwithstanding that, the protection of the community is still a relevant consideration. As for rehabilitation, I do not ignore that as a sentencing consideration, but for the reasons I have stated, it must, in the case of each of you, very much take a back seat to more important sentencing objectives.

Relative position of the two of you

1. Mr Thomson submitted on your behalf, Fares, that you should receive a lesser sentence than Elliott because he was the one who asked you to participate, and on any view, you were not the guiding force of these crimes. I have already indicated that I do not accept the additional submissions of Mr Thomson that you were a reluctant participant, cajoled into joining the plan, and that the events were out of your control.

1. The Crown submitted:

When comparing the roles of each offender there is reason to distinguish between them. Elliott is the most culpable and must attract the severest punishment. It was Elliott that recruited Fares on this night. It was Elliott that at least initially was the driving force in the offending. Fares although a willing participant, by virtue of being recruited by Elliott, is to some degree, less culpable.[68]

[68]Crown outline [57].

1. Putting to one side for the moment the agreed position as between you, Fares, and the prosecution, that it was Elliott who recruited you into this plan, a contention not challenged by Elliott, it must be remembered that although it is the case that Elliott was the shooter and you were the driver, the fact is, the two of you were equally complicit in the offending. It is just that you each had a different role. Yours, as the driver of the particular vehicle used in the murder and used to escape the scene, was a very important, indeed, essential role. There is therefore little to distinguish between the two of you in the actual offending. Elliott’s heartless actions in shooting dead two men intending to kill, and firing the other two shots intending to kill, were legally and practically, your actions.

1. It is significant in my view that you were 3 ½ years older than Elliott. He was only 18. You were 21. Notwithstanding the apparent immaturity of each of you, the fact that you were significantly older is something that puts you in a worse position.

1. Balancing everything out, I am prepared to act on the basis that you should receive a somewhat lower sentence than Elliott, which will be reflected in the non-parole period. The difference, however, will not be great, for the reasons I have stated.

Question whether terms of life imprisonment open and appropriate

1. The position of the Crown was that it would be open to me to pass upon each of you a sentence of life imprisonment for each of the murders. It was submitted that the circumstances were such that it would be open to me to conclude that your crimes of murder do fall within the worst category of crimes of murder.

1. However, the Crown did not submit that I should necessarily reach that conclusion as to how your crimes should be assessed, and necessarily sentence you to life imprisonment. It was submitted that sentences less than life would also be within the range.

1. In your case, Elliott, Ms Condon submitted that your crimes of murder do not fall into the worst category. She submitted that therefore, sentences of life imprisonment would not be open to the Court. The only just and reasonable sentences would be a head sentence of a number of years with a non-parole period. In seeking to make good that contention, Ms Condon relied upon a number of authorities. Ms Condon relied in particular upon your youth as an important factor taking sentences of life imprisonment out of the range of appropriate sentences.

1. In your case also, Fares, Mr Thomson submitted that your crimes of murder do not fall into the worst category of such crimes, and that the imposition of terms of life imprisonment would not be open to the Court. He invited me to impose a lengthy total effective sentence, and a non-parole period less than that required by statute to reflect your good prospects of rehabilitation.

1. A sentence of life imprisonment has not-infrequently been described as a dreadful sentence reserved for dreadful cases. In The Queen v DJH,[69] Brooking JA, with whose judgment the other members of the Court agreed, noted, ‘The sentence of life imprisonment, even if a non-parole period is fixed, is a dreadful one and one which will be passed only after the most anxious consideration’.[70] Having set out a passage from Dumas to which I earlier referred, his Honour stated:

It seems to me, if I may say so, that on occasions sentencing judges have not given sufficient weight to the observation that the sentence of life imprisonment will still be appropriate for a wide variety of deliberate criminal killings.[71]

[69][1998] VSCA 108 (‘DJH’).

[70]Ibid [13].

[71]Ibid [14].

1. Later in the judgment, his Honour noted:

The Court will in general be more reluctant to pass a sentence of life imprisonment on a young offender, for the obvious reason that, the younger the offender, the more severe that sentence will, speaking generally, be.[72]

[72]Ibid [16].

1. His Honour then set out the following passage from R v Lowe:[73]

The younger the offender, the more severe a sentence of life imprisonment will in general be, for the obvious reason that in the ordinary course of events the length of the term of imprisonment to be served depends upon the age of the offender. Accordingly it must be and always has been recognised that in the determination of whether a sentence of life imprisonment is appropriate the offender’s age is a relevant and indeed important consideration. It has similarly been recognised that in the determination of whether it is inappropriate to fix a non-parole period for a person sentenced to life imprisonment the offender’s age is relevant and important.[74]

[73][1997] 2 VR 465 (‘Lowe’).

[74]Ibid 486.

1. As noted by Brooking JA in DJH, the Court in Lowe went on to observe that the age of the offender was relevant not only to the determination of whether he or she should be denied the possibility of parole but also to the determination of the length of the non-parole period where one was being set.

1. It is obvious that any sentencing judge would think long and hard before passing a sentence of life imprisonment upon any offender. This is particularly so in the case of offenders as young as the two of you are. The fact remains that many sentences of life imprisonment have been imposed upon young offenders for crimes of murder, and sometimes even in circumstances where offenders have pleaded guilty.

1. Having reflected carefully upon all of the circumstances which apply to the two of you, and paying due regard to all of the matters to which I am required by law to have regard, I am moved clearly to the view that sentences of life imprisonment in respect of each of you for each crime of murder are appropriate and necessary. This is a dreadful case, as represented by each of your crimes of murder. In my view, neither one of those crimes can be properly met with a sentence other than life imprisonment. I am driven to that conclusion by a consideration of the enormity of your offending, the extremely high level of the objective gravity of your crimes, your substantial subjective culpability, and the relevant purposes for which sentence must be passed in each case.

1. The charges of attempted murder are also serious. You fired the two shots which wounded Mr Tu’itufu and Mr Ahmed from close range in a public street in the outrageous circumstances to which I have already referred in detail. You intended to kill when each of these shots was fired, and it is sheer good fortune that you did not succeed in doing so. As it turned out, neither man was particularly seriously injured, but significant punishment is called for in respect of each crime.

1. I have decided to fix a non-parole period for each of you. Of course, I sentence you on the basis that each of you may be required to serve every day for the remainder of your life in custody under the head sentence. The non-parole period, like the head sentence, must pay due regard to, and adequately reflect, the purposes for which you are to be sentenced for these crimes. It is obvious, therefore, that notwithstanding your young age, and the tragedy that is represented by your being required to spend so many of your best years in custody before the possibility of parole might ever materialise, the non-parole period must itself be very lengthy.

1. Indeed, upon the passing of a head sentence of life imprisonment, I am required by s 11A(4)(a) of the Act, unless I consider it is in the interests of justice not to do so, to fix a non-parole period of at least 30 years. It is worth noting that that minimum period required as a non-parole period in a case in which the head sentence is life would apply to the sentence on a single charge of murder. In your cases, you have been found guilty of two charges of murder, two of attempted murder, and one of ICSI.

1. The High Court in Power v The Queen,[75] explained the purpose of parole as:

to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.[76]

[75](1974) 131 CLR 623.

[76]Ibid 629 (Barwick CJ, Menzies, Stephen and Mason JJ).

1. As Winneke P explained in R v Mulvale:[77]

The fixing of a minimum period is no sinecure but requires discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision.

[77]Unreported, Court of Appeal, Winneke P, 20 February 1996.

1. I have given very anxious consideration to the question of the appropriate duration of the non-parole period for each of you. In the end, because of the young age of each of you, and the desirability so far as possible of fostering your prospects of rehabilitation, which are by no means forlorn, I have decided that in each case it would be in the interests of justice to fix a non-parole period somewhat lower than the statutorily described minimum duration. As noted above, 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 for each of you the shortest term of imprisonment which, in my view, would meet the needs of justice in this case. That the non-parole periods will still be very lengthy is an unavoidable consequence of the extreme gravity of your offences. However, these non-parole periods will hold out for you at least the prospect of future release under supervision, at a time when you would still have sufficient years available to lead productive lives.

Concurrency, cumulation and totality

1. By virtue of my decision to impose life sentences upon each of you for each of the charges of murder, those sentences will dictate the total effective sentence. No sentence can be cumulated on a life sentence, and it is inappropriate to make any orders for cumulation in respect of the sentences on any of the other charges. All sentences will be served concurrently. That is not to say that I did not have regard to the submissions made before me about what the level of cumulation should be. In addition, I can indicate that I had regard to the sentencing principles of totality and proportionality in arriving at the sentences I will now pronounce.

Sentence

1. Jacob Elliott, for the murder of Ahmad Osmani (charge 1), you are sentenced to be imprisoned for life.

1. For the murder of Kur Arow (charge 2), you are sentenced to be imprisoned for life.

1. For the attempted murder of Semisi Tu’itufu (charge 3), you are sentenced to be imprisoned for 14 years.

1. For the attempted murder of Ukash Ahmed (charge 4), you are sentenced to be imprisoned for 14 years.

1. For ICSI to Ali Shohani (charge 8), you are sentenced to be imprisoned for 6 years.

1. By operation of law, these sentences will all be served concurrently. For the avoidance of doubt, I otherwise direct for the purposes of s 6E of the Sentencing Act 1991.

1. The total effective sentence is life imprisonment.

1. I fix a period of 29 years during which you will not be eligible to be released on parole.

1. I declare a period of 1178 days up to and including yesterday, 20 September 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.

1. You have been sentenced as a serious violent offender for relevant offences, namely, charges 2 – 4 and charge 8. I direct that the fact that you have been sentenced as a serious violent offender on those charges be entered in the records of the Court.

1. Allan Fares, for the murder of Ahmad Osmani, you are sentenced to be imprisoned for life.

1. For the murder of Kur Arow, you are sentenced to be imprisoned for life.

1. For the attempted murder of Semisi Tu’itufu, you are sentenced to be imprisoned for 12 years.

1. For the attempted murder of Ukash Ahmed, you are sentenced to be imprisoned for 12 years.

1. For ICSI to Ali Shohani, you are sentenced to be imprisoned for 5 years.

1. By operation of law, these sentences will all be served concurrently. For the avoidance of doubt, I otherwise direct for the purposes of s 6E of the Sentencing Act 1991.

1. The total effective sentence is life imprisonment.

1. I fix a period of 27 years during which you will not be eligible to be released on parole.

1. I declare a period of 1176 days up to and including yesterday, 20 September 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.

1. You have been sentenced as a serious violent offender for relevant offences, namely, charges 2 – 4 and charge 8. I direct that the fact that you have been sentenced as a serious violent offender on those charges be entered in the records of the Court.