R v Shaptafaj - [2022] VSC 71

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECI 2020 0111

THE QUEEN	Crown
v
OSMAN SHAPTAFAJ	Accused

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 December 2021
DATE OF JUDGMENT:	22 February 2022
CASE MAY BE CITED AS:	R v Shaptafaj
MEDIUM NEUTRAL CITATION:	[2022] VSC 71

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CRIMINAL LAW – Sentence – Murder – Intentional killing of daughter and her husband by 55 year-old offender – Motives of anger and resentment – Depressed state at time of crimes – Limbs of R v Verdins & Ors (2007) 16 VR 269 (‘Verdins’) considered – No reduction in moral culpability – No reason why general and specific deterrence should assume less than usual importance – Fifth limb of Verdins enlivened, but little effect on sentence – Very serious offending with high degree of moral culpability – Sentence of life imprisonment on each charge – Non-parole period of 35 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C Parkes	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Ms T Skvortsova	SLKQ Lawyers

HIS HONOUR:

Introduction

Osman Shaptafaj, you have pleaded guilty to the murder of your 25 year-old daughter Lindita Musai[1] (‘Lindita’) and her husband Veton Musai.
[1]Lindita is referred to as Lindita Shaptafaj in the indictment. It is the preference of the Musai family that she be referred to by her married name.

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

Background to your crimes

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

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

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

On 22 August 2011, when she was 17, Lindita obtained a FVIO against you as a result of some violent conduct by you towards her on that day which caused Arben…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Shaptafaj

Details

AGLC: R v Shaptafaj [2022] VSC 71
Case: [2022] VSC 71
Decision Date: 22 February 2022

CaseChat Overview and Summary

In the case of R v Shaptafaj, the defendant was convicted of two counts of murder for the intentional killing of his daughter and her husband. The dispute was heard in the Court of Appeal, where the primary issue was the appropriate sentence for these serious crimes. The court was required to determine the sentence that balanced the offender's moral culpability, the need for general and specific deterrence, and the impact of the offender's mental state at the time of the offences.

The legal issues included whether the offender's depressed state at the time of the crimes warranted a reduced sentence, and whether there was any reason to diminish the importance of deterrence in this case. The court considered the principles set out in Verdins, particularly the fifth limb which deals with the offender's personal circumstances. While the offender's depression was noted, the court held that it did not reduce his moral culpability or the need for deterrence. The court concluded that the offences were very serious, with a high degree of moral culpability, and that the general and specific deterrence should assume their usual importance.

Following the analysis, the court sentenced the defendant to life imprisonment on each charge, with a non-parole period of 35 years. The court found that the fifth limb of Verdins, while considered, had little effect on the overall sentence given the gravity of the crimes and the need to uphold the principles of justice and deterrence. This decision ensures that the severity of the crimes and the need to protect society are adequately addressed through the sentence imposed.

Orders