R v Ibrahim [2001] VSC 210 (12 June 2001)

Last Updated: 22 June 2001

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1458 of 1999

THE QUEEN

v.

DAVID IBRAHIM

---

JUDGE:	COLDREY, J
WHERE HELD:	MELBOURNE
DATE OF SENTENCE:	12 JUNE 2001
CASE MAY BE CITED AS:	R. v. IBRAHIM
MEDIUM NEUTRAL CITATION:	[2001] VSC 210

---

CATCHWORDS: Sentence - Murder - Premeditated shooting - Intended victim former de facto wife - Wrong person killed by mistake - Mental state one of depression and anger - False memory of shooting following hypnosis - Need for general deterrence - Sentence of 19 years with a minimum of 14 years.

---

APPEARANCES:	Counsel	Solicitors

For the Crown	Mr. G. Horgan SC and Mr. D. Bracken	Stephen Carisbrooke Acting Solicitor for Public Prosecutions

For the Accused	Mr. R. Punshon SC and Mr. R. Marron	Patrick Dwyer

HIS HONOUR:

David Ibrahim, you have been found guilty by a jury of the murder of Sue Connie Chircop at Keilor Downs on 27 September 1998. It is now my responsibility to sentence you. In order to do so, it is necessary to examine the facts surrounding the commission of this offence so as to place your actions in context. Those facts, as I regard the jury to have found them, may be briefly summarised.

On the morning of 27 September 1998, you drove in your red Ford utility from your mother's home in Newport to the Keilor Downs area. You were armed with two .25 pistols, a Browning and a Tanfoglio, and you were seeking a confrontation with your ex de facto wife Carol Chircop. As fate would have it, as you drove south down Copernicus Way, Keilor Downs, you observed the red Ford Probe vehicle usually driven by Carol Chircop travelling in the opposite direction towards Lady Nelson Way. You swung your vehicle across the path of the red Probe, forcing it to screech to a halt. There are a number of witnesses to what followed. You alighted from your vehicle in a manner described as angry or aggressive and moved quickly towards the stationary red Probe. You had already armed yourself with the Browning pistol, which was loaded and cocked ready to fire. On arriving at a position about a metre away from where the offside front door and quarter panel joined, you raised your weapon and commenced firing. Four shots were fired in quick succession. The first two penetrated the front windscreen of the vehicle. The second two were fired through the driver's side window into the back of the female driver who, the jury would have inferred, was crouching over in a futile endeavour to escape injury. On the preponderance of evidence, no words were spoken by you, although one witness heard a female screaming at the time the shots were being fired.

Somehow the red Probe managed to leave the scene. Whether this was through the efforts of the mortally wounded driver or the endeavours of its other occupant, a male seated in the front passenger seat, it is impossible to say. Certainly, when the vehicle approached its final destination, a paddock in nearby Lipton Street, the driver was seen to be slumped sideways and the driver's wheel was being controlled by the passenger. The course of that vehicle had been across a vacant block of land on the corner of Copernicus and Lady Nelson Way, into Lady Nelson Way, and right into Lipton Street.

After the red Probe took off, you moved quickly back to your utility and initially pursued the Probe across the vacant land. For some reason, that pursuit did not continue and instead you drove to the home of acquaintances, Tom and Margaret Provelsek, at Nepean Court, Taylors Lakes. You told Mrs Prevolsek that you had just shot Carol and you wanted her to hide you. A similar request for assistance was made to Mr Prevolsek. When he refused to become involved, you put the Tanfoglio pistol under your chin and discharged it. The bullet passed through your neck and mouth and lodged beside your nose without entering the brain. As to your state of mind at this time, Mr Prevolsek said that you "seemed to be boiling" and that your eyes were rolling. It is likely this was an unsuccessful suicide attempt. One side effect of this injury may have been the loss of your memory of events which you later asserted. In this regard I also take into account the evidence of a neuro-psychologist, Mr David Stokes, that you are afflicted with a memory disorder involving difficulty in registering information in situations of anxiety, mood disorder or emotional disturbance.

There is no doubt, however, that at this time you believed you had shot Carol Chircop. In fact you had not; cruelly and tragically, you had shot her sister Sue who was using Carol's car to drive a friend home. Your failure to accurately identify your victim may well be attributable to your state of anger at the time of the shooting. That anger was a manifestation of the ongoing animosity you felt towards your former de facto wife. I have no doubt the jury would have been satisfied that when you fired the fatal shots you intended to kill the person you believed to be Carol Chircop.

The account of the shooting which you gave to the jury had its genesis in an allegedly recovered memory of events following two sessions of hypnosis with a psychiatrist, Professor Graham Burrows, in June and July 2000. In this version you asserted that the deceased aimed what you believed to be a gun at you and you fired in self-defence. Clearly, the jury found that you had no such belief at that time. No gun was ever found. In my view, the jury also rejected your assertion of being in the area for the purpose of returning the loaded Browning pistol to a friend, whose name and address you refused to reveal to the court. Similarly, the jury may be regarded as declining to accept your claim that you stopped the Ford Probe to inquire of Carol why she had refused to take your son Jake back from you on the previous day (Jake being the child of your relationship with Carol Chircop and aged five at the time of Sue Chircop's death).

It was put by your senior counsel, Mr Punshon, that your evidence of acting in self-defence was not a lie but was a genuinely held, albeit mistaken, reconstruction through the hypnotic process. Accordingly, any lack of expression of real remorse had to be placed in the context of that mistaken belief. There is a considerable body of expert opinion that hypnosis produces illusory memories or, as some experts express it, "hypnosis provides no guaranteed access to unblemished memory or unvarnished truth". I am prepared to find that your evidence of shooting in self-defence was the result of what may be described as confabulation or false memory rather than any wilfully false account by you, even though I regard your earlier statements, to which I have referred, as being deliberate untruths.

I am, however, satisfied that your acts were performed in a state of some emotional turmoil, and I shall refer to the history of your mental state shortly. Nonetheless, this was a grave offence. It was premeditated in the sense that you set out armed and with the intention of confronting Carol Chircop and shooting her.

I have remarked on a number of occasions that the courts have a duty, through the imposition of appropriate sentences, to uphold the sanctity of human life. Violent responses to the emotional problems created by domestic relationships cannot be tolerated by the courts and there is a duty to deter those who may be minded to resort to such violence.

It was put on your behalf that your mental state at this time reduced to some extent both your level of moral culpability and the weight to be accorded to general deterrence. This involves an examination of the evidence relating to your mental state.

The background to the events of 27 September may be found firstly in your relationship with Carol Chircop. There were allegations of ongoing threats and violence by you towards Ms Chircop. You denied such allegations and it is not necessary to determine where the truth lies. It is clear, however, that the relationship was a turbulent one and that you separated in March 1998 in acrimonious circumstances. At about that time, or shortly thereafter, there was an incident near your home at Hillside where you were the victim of a shooting in which you were hit in the head by a number of shotgun pellets. Whatever be the truth as to the circumstances of that event, you were convinced that the shots were fired by Mr Frank Chircop, the father of Carol Chircop, and that he had been driven to the scene by his daughter. Indeed, you ultimately informed the police of this belief. In the event no charges were laid by the police. This event appears to have fuelled your anger and resentment of the Chircop family and perhaps created a sense of injustice.

Those feelings of anger and resentment were expressed by you to the staff at the Werribee Mercy Hospital where your family, concerned about your mental state, had sought your admission on 9 September 1998. At this stage you spoke of your inability to cope and a desire to end your life. One reason you advanced was the separation from your wife. Your treatment was principally under the control of a consultant psychiatrist Dr Fionnuala Dunne. During the period from 9 September to your discharge on 18 September, you expressed anger about the separation from your ex de facto and the attempt by her father to shoot you. For example, you told a Dr Rajan that you wanted to kill your ex de facto before she took your son to Queensland, and that, on 11 September, when you had absented yourself from the hospital you had walked in a park in front of your father-in-law's house with a metal bar wanting to kill him and get revenge. Dr Dunne observed that you would become angry and aggressive quite quickly. Her diagnosis was that you had an adjustment disorder involving feelings of sadness, anger and an inability to cope with a serious life disorder.

On 20 September you were readmitted to the hospital at the behest of your brother after taking 25 Temazepam tablets. You discharged yourself on 21 September and thereafter failed to keep follow-up appointments scheduled for the 23rd and 24th of that month. It was Dr Dunne's opinion that you were not actively suicidal at the time of each discharge.

Subsequent to your separation from Carol Chircop, a court order had been made in which Ms Chircop obtained custody of, and you were granted access to, the child Jake. On 26 September you attended at Keilor Downs Plaza for the delivery of Jake to you for an access visit. At the handover of the child you were alleged to have threatened to kill Frank Chircop and to have covered yourself by voluntary admission to a psychiatric hospital. Hearing these remarks, Carol Chircop claimed to have endeavoured to prevent this access. I am not prepared to find beyond reasonable doubt that such a conversation occurred. The conduct of Ms Chircop later on that same afternoon in declining your telephone request to take Jake back is quite inconsistent with such an occurrence.

On the evening of the same day, after having seen your general practitioner, Dr Assad, you were taken by a brother to the Royal Melbourne Hospital where you were examined by a psychiatric registrar, Dr Elizabeth Reed. According to Dr Reed, you spoke in an angry manner about your ex-wife and her father and about antagonisms in relation to access to your son. Included in the history you gave Dr Reed was that you had previously tried to strangle yourself and had reasonably taken a number of Temazepam tablets. Dr Reed's diagnosis was of an anti-social personality disorder. It was based upon your use of illicit drugs, conflict situations with others, including your ex-partner and her father, and impulsivity relating to illicit substance abuse and suicidal behaviour. (I should add for completeness that in the period leading up to the shooting you had apparently been self-medicating on marijuana and perhaps cocaine.) Dr Reed formed the view that you were not planning to harm yourself that evening.

Neither Dr Dunne nor Dr Reed regarded you as suffering from any psychotic illness; nor were they of the opinion you were suffering from any major depressive disorder.

The latter view was not shared by experienced psychiatrists, Professor Graham Burrows and Dr John Grigor. Their view, based upon a review of the file notes, was that such a disorder was present. On 22 September you had been interviewed by a psychologist, Ms Nicole Lefkovits. Although obviously not possessing psychiatric qualifications, Ms Lefkovits had formed the view (shared by a colleague Mr Tim Watson-Munro) that you were suffering from severe depression and that you were suicidal. She noted at that stage you were taking the anti-depressant medication Zoloft.

The conflict of expert opinion as to your precise mental state at the time of the shooting is probably impossible to resolve. On the one hand, you have psychiatrists who had the advantage of personal observations whilst, on the other, there is the view of psychiatrists of admittedly greater experience but who had to base their views upon file notes.

It seems to me that at the critical time you were affected by a number of emotions. These included feelings of depression and hopelessness but also feelings of anger and resentment. All these emotions played a role in distorting your judgment at the time of the fatal shooting. Whether the feelings of hopelessness and depression you were experiencing are to be regarded as reducing your level of moral culpability, or lessening to some extent the weight to be given to general, or even specific, deterrence is problematic. It was conceded that the present case did not attract the principles enunciated in R v. Anderson nor, in my opinion, are the propositions set out in R v.Tsiaras directly on point. I am, however, prepared to take your emotional condition into account in mitigating, to some degree, the circumstances of what may otherwise be described as a premeditated killing. I also take into account your general cooperation in the efforts of your family to seek psychiatric assistance for what they obviously regarded as your deteriorating mental situation.

In considering the appropriate sentence, there are matters personal to you which I must take into account. Before doing so, however, I wish to say something about the deceased.

Sue Chircop was aged only 28 years at the time of her death. As the victim impact statements make clear, she was part of a closely knit and loving family. As a result of her death the health of her parents, Annette and Frank Chircop, has deteriorated and what were once family occasions of celebration are no longer joyous. Her sister Carol has been traumatised by Sue's death. She has experienced feelings of guilt and she describes a life devoid of real happiness and in which her work capacity and a desire to form relationships with others have been adversely affected. In short, Sue Chircop's death, and the manner in which it occurred, is something from which the Chircop family will never fully recover.

David Ibrahim, you are presently 30 years of age, having been born in January 1971. Your family background is Lebanese but you were born in Australia as the seventh of eight children. Your mother, who is aged 63, and is in relatively poor health, remains supportive of you. Your father, a factory worker, died in 1991. It appears that he was a person who was violent towards family members when drunk. As a child you frequently ran away from home and you were placed in foster care at about the age of 9 or 10. You spent periods of time at Baltara, Turana and Tally Ho Boys Home. From about the age of 13 you lived principally with your brother Nick. At 17 you met Carol Chircop and after a few months you commenced living with her at your parents' home in Newport. This was the first of a number of residences. The child of your union, Jake, was born in September 1993.

You were educated at Newport Primary School and Syndal Technical School where you left after failing to complete the first term of Form 3. Apart from evidence of your memory problems, the witness David Stokes placed your IQ at about 80, being at the low end of average intelligence.

You began working in the building industry with your brother Nick and you were also, for a period of time, employed at an abattoir. Your work history, however, has been characterised by long periods of unemployment.

You have a number of Magistrates' Court convictions for street and driving offences as well as a conviction for trafficking in a drug of dependence and for possession of a drug of dependence, the latter offences both involving Indian hemp. You intend to plead guilty later this month to an offence of trafficking in a drug of dependence relating to the hydroponic cultivation of about 30 plants. None of these offences is of great significance in determining the sentence to be imposed upon you; of more importance is that you have no recorded history of violent offending.

I take into account your disadvantaged childhood, your efforts to obtain medical assistance for your deteriorating mental condition prior to 27 September, the level of emotional turmoil surrounding the shooting, and your lack of prior convictions for violence. I must also take into account, however, the gravity of the offence itself.

Balancing as best I can the sentencing principles enunciated in the Sentencing Act, I have concluded that the appropriate sentence is that you be imprisoned for a period of 19 years. I fix a minimum period of 14 years before you become eligible for parole. Further, I declare that the period to be reckoned as already served under this sentence is 990 days inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration is made and its details.

Authorities Cited0