R v Wilio - [2022] VSC 86

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0212

THE QUEEN

NORDEN WILIO

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATES OF HEARING:	4, 14 & 17 February 2022
DATE OF SENTENCE:	24 February 2022
CASE MAY BE CITED AS:	R v Wilio
MEDIUM NEUTRAL CITATION:	[2022] VSC 86

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CRIMINAL LAW – Sentence – Two charges of murder and one charge of attempted armed robbery – Planned drug rip-off involving loaded sawn-off shotgun – Co-offender Ali Ali (Ali) accidentally shot during course of armed robbery – Intended victim Deniz Hasan (Hasan) then deliberately shot in head by accused – Jury found accused guilty of attempted armed robbery, s 3A murder of Ali and common law murder of Hasan – Intellectual disability of accused relied on in support of limbs 1, 3 and 5 of R v Verdins & Ors (2007) 16 VR 269 (‘Verdins’) – Psychological material concerning diagnosis of mild intellectual disability not satisfactory – No reduction in moral culpability – No reason why general and specific deterrence should assume less than usual importance – No material which would enliven fifth limb either – Serious offending with high degree of moral culpability – Total effective sentence of 35 years’ imprisonment – Non-parole period of 26 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Gibson QC with Mr G Hayward	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Mr P Chadwick QC	Portfolio Law

HIS HONOUR:

Introduction

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

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

The facts

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

Hasan drove to the pre-arranged location with his…

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 Wilio

Details

AGLC: R v Wilio [2022] VSC 86
Case: [2022] VSC 86
Decision Date: 24 February 2022

CaseChat Overview and Summary

In the matter of R v Wilio, the defendant was found guilty of one count of attempted armed robbery and two counts of murder. The victims were Deniz Hasan, who was fatally shot by the accused, and Ali Ali, a co-offender who was accidentally shot during the armed robbery. The Supreme Court of Victoria was tasked with determining the appropriate sentence for the accused, who relied on a diagnosis of mild intellectual disability to argue for a reduced sentence. The court needed to consider whether this disability warranted a reduction in moral culpability and whether the principles in R v Verdins & Ors (2007) 16 VR 269 applied in this case.

The legal issues before the court were whether the intellectual disability of the accused warranted a reduction in moral culpability, and if so, under which limbs of the Verdins principles. The court needed to evaluate the psychological evidence and determine if it was sufficient to support a claim under limbs 1, 3, or 5 of Verdins. Additionally, the court had to weigh the importance of general and specific deterrence in the context of the accused's serious offending and high degree of moral culpability.

The court found that the psychological material concerning the accused's mild intellectual disability was not satisfactory to support a reduction in moral culpability under any of the Verdins limbs. The court held that the intellectual disability did not justify a reduction in the moral culpability of the accused. It also noted that there was no reason why general and specific deterrence should assume less than usual importance in this case. The court concluded that the fifth limb of Verdins was not enlivened either, given the nature and seriousness of the offences. Consequently, the court imposed a total effective sentence of 35 years' imprisonment, with a non-parole period of 26 years.

Orders