Abil Malovski v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0006

ABIL MALOVSKI	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, McLEISH and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2025
DATE OF JUDGMENT:	11 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 72
JUDGMENT APPEALED FROM:	DPP v Malovski [2023] VSC 748 (Tinney J)

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CRIMINAL LAW – Appeal – Sentence – Attempted murder – Prohibited person possess firearm – Total effective sentence 20 years’ imprisonment with non-parole period of 15 years – Sentence of 18 years’ imprisonment for attempted murder – Highest recorded sentence – Victim having grown close to applicant’s former wife and children – Applicant pursued and repeatedly shot victim at roadside location – Offending witnessed by victim’s former wife, son, niece and members of public – Victim sustaining grave injuries resulting in severe and permanent disability – Whether sentence manifestly excessive – Offence in upper end of range of seriousness – Callous and cowardly offending – Moderate risk of further violent offending – Family violence context warranting very substantial sentence of imprisonment – Sentence not inconsistent with current sentencing practices – Sentence not manifestly excessive.

CRIMINAL LAW – Appeal – Sentence – Sentence of 5 years’ imprisonment for prohibited person possess firearm – Highest sentence recorded – Guilty plea – Applicant possessing loaded firearm while in public for part of one day – Guilty plea, absence of associated criminal activity or purpose, bare possession on single day and current sentencing practices combine to show sentence manifestly excessive – Sentence of 2 years and 6 months’ imprisonment substituted – Serious offender – Cumulation of 12 months ordered having regard to s 6E of Sentencing Act 1991 – Total effective sentence 19 years’ imprisonment – Non-parole period 14 years and 3 months.

Sentencing Act 1991, s 6E; Firearms Act 1996, s 5(1).

Constantinou v The King [2024] VSCA 79; McIntosh v The Queen [2005] VSCA 106; R v Boaza [1999] VSCA 126; Fares v The King [2024] VSCA 108; DPP v Jensen [2019] VSC 327; Hudson v The Queen (2010) 30 VR 610; Salapura v The Queen [2018] VSCA 255; Ah-Kau v The Queen [2018] VSCA 296; Kelly v The Queen [2020] VSCA 171; Young v The King [2024] VSCA 179; Binse v The Queen [2016] VSCA 145, discussed.

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Counsel
Applicant:		Mr R Richter KC with Ms M Cananzi
Respondent:		Mr D Glynn
Solicitors
Applicant:	Melasecca Kelly & Zayler
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MCLEISH JA
ORR JA:

On 24 October 2023, the applicant was found guilty by a Supreme Court jury of attempted murder. On 9 October 2023 he had pleaded guilty to being a prohibited person in possession of a firearm. On 13 December 2023 he was sentenced as follows:

Charge on indictment	Offence	Maximum penalty	Sentence	Cumulation
Indictment N10916268.A.1
1	Attempted murder[1]	25 years’ imprisonment[2]	18 years’ imprisonment	Base
Indictment N10916268.B
1	Prohibited person possess a firearm[3]	10 years’ imprisonment or 1200 penalty units	5 years’ imprisonment	2 years
Total effective sentence:		20 years’ imprisonment
Non-parole period:		15 years
Section 6AAA statement:		On indictment N10916268.B, 6 years’ imprisonment.[4]

[1]Contrary to s 321M of the Crimes Act 1958 and the common law.

[2]Crimes Act 1958, ss 3(1), 321P(1)(a). See also s 321P(1A).

[3]Contrary to s 5(1) of the Firearms Act 1996.

[4]The judge’s s 6AAA statement did not specify a non-parole period.

The applicant seeks leave to appeal against the sentence on the basis that the individual sentences imposed, the order for cumulation and the non-parole period are manifestly excessive. For the reasons that follow, the sentence imposed on the attempted murder charge was within the range open to the judge, but the sentence on the firearm charge was not. As a result, we will grant leave and allow the appeal, and make an adjustment to the order for cumulation which will result in the total effective sentence being reduced by one year.

Circumstances of offending

Background

The applicant was married to Ms Florije Rakipi. They have two sons who were aged 10 and 11 at the time of the offending. We will refer to the younger child as ‘RD’.
In January 2021, the applicant and Ms Rakipi separated. From that time, the applicant did not have any further contact with his children. The separation was not amicable and resulted in litigation in the Family Court.
After the separation, Ms Rakipi formed a relationship with Mr Steven Grant. While the nature of their relationship was somewhat uncertain, it was clear that Mr Grant spent time with Ms Rakipi and the children, and that he occupied some kind of place in the life of the family. The applicant found out about Mr Grant by monitoring a social media account of Ms Rakipi to which he had access. Following the applicant’s arrest, police accessed his phone and found pictures of the children and Mr Grant embracing, and a photo of the children kissing him on the cheek.
On 3 March 2021, an interim family violence intervention order was made against the applicant. During the months that followed, he engaged in conduct that breached the order, as well as other criminal conduct as follows:
(a)On 25 February 2021, police found a loaded .22 calibre Beretta handgun in a shed at the applicant’s premises.
(b)On 14 March 2021, the applicant attended Ms Rakipi’s address, in breach of the family violence intervention order, and held a knife to her throat while threatening to kill her.
(c)On 19 and 20 June 2021 the applicant telephoned Mr Grant and introduced himself using a false name. He told Mr Grant to stay away from Ms Rakipi.
(d)On 4 July 2021 the applicant left a voicemail message calling Mr Grant a ‘mother fucker’. Then he called again and spoke with Mr Grant. He called him a ‘fucking dog’ and said he was going to find him.
(e)The applicant persistently made phone calls to Ms Rakipi in breach of the intervention order.
(f)On 6 July 2021, the applicant called Ms Rakipi and again threatened to kill her.
The applicant had been remanded on 17 March 2021 after being charged with breaches of the intervention order and other offences. After being bailed on 7 June 2021, he was remanded again on 11 July 2021. He was sentenced on 29 October 2021 to an aggregate term of 8 months’ imprisonment and released from custody on 28 November 2021.
A final family violence intervention order was made on 21 January 2022 that prevented the applicant from approaching or contacting his wife and children, subject to any court order to the contrary. No such orders have been made.
Between 27 February 2022 and 20 March 2022 the applicant made various posts on social media that referred to Ms Rakipi and Mr Grant in resentful and threatening terms. He called Mr Grant a ‘filthy pig’, and expressed resentment towards the role he had come to occupy in the children’s lives. He alluded to plans to act on his resentment. For example, on 27 February 2022 he wrote ‘Stop talking about my actions you haven’t seen my actions yet you will be surprised when you see my actions stop pressing on my buttons it’s a very big mistake’. In a post on 25 March 2022, seemingly directed at Ms Rakipi, he described ‘unacceptable’ actions, done to ‘someone that you shared life with’, and concluded ‘you will get punished for that’. In another post on 30 March 2022, he wrote that ‘there will be a price for everything just when is the right time I know everything whats going on but some people don’t realise when they do a big mistake’. His final post, on 30 March 2022, read ‘You know sometimes some people shoot themselves in the foot, I won’t enjoy anything until I finish all my plans’.

The offending

On Saturday 7 May 2022, the day before Mother’s Day, Ms Rakipi and Mr Grant set up a stall to sell flowers at a roadside location in Melton. Ms Rakipi came with her son RD and her 13 year old niece. The applicant had seen his children and their grandfather selling flowers from this location in the past.
At around 3 pm, the applicant drove past the flower stall. Mr Grant was at the stall and Ms Rakipi was seated in the driver’s seat of her car. The two children were either in the car or near it. Ms Rakipi observed the applicant driving past very slowly. She said he was staring at her. Mr Grant had not seen the applicant and was not concerned when Ms Rakipi told him what had happened.
Not long after, the applicant drove back from the opposite direction, went past the flower stall, and did a sudden U-turn before parking his car about five metres away from it. Two witnesses observed that he looked very angry.
Mr Grant approached the applicant and asked ‘what’s going on?’. The applicant said ‘I’m going to fucking kill you, you fucking piece of shit’. He then produced a handgun and fired it at Mr Grant at least three times. One bullet connected with a necklace Mr Grant was wearing, causing it to fall to the ground and wounding his neck. Another passed through his right thumb. A third bullet penetrated a cap Mr Grant was wearing, exiting at its rear and causing a minor injury to the back left hand side of his head.
At this point, Mr Grant ran. The applicant chased him in a roughly circular route that ended in an area where the cars were parked. The applicant fired at Mr Grant at least once while chasing him. The sentencing judge considered it was likely that one of two wounds to the applicant’s back was sustained at this time. In the meantime, Ms Rakipi fled in her car with the children. They witnessed the unfolding attack on Mr Grant as they drove away.
From the area around the parked cars, Mr Grant turned to run away again. As he did so, the applicant shot at him at least once. The judge found that a bullet damaged one or more of Mr Grant’s spinal vertebrae, paralysing him and leaving him with no feeling or movement in his legs. The shot brought him to the ground where he remained, unable to move. A large number of people witnessed this final phase of the offending.[5] After the final shot was fired, the applicant left the scene in the vehicle he arrived in.

Aftermath

[5]The summary of prosecution opening supported this statement by reference to eight witness statements, as well as dashboard camera footage taken from the car of one of the eight witnesses.

After the offending, the applicant disposed of the firearm, which has never been found, and threw away the phone he had been using.
On 9 May 2022, he handed himself in to Melton Police Station, where he was arrested and interviewed. He admitted to shooting Mr Grant, but said that he did so in self-defence.
Meanwhile, Mr Grant had been admitted to the Royal Melbourne Hospital. The injuries he had sustained were life threatening. Surgery was undertaken to remove bullets and bullet fragments, and to repair a linear defect to his right diaphragm. It was determined that he was an ‘incomplete paraplegic’ from the T7 vertebrae down. It was not until 6 October 2022 that he was discharged from hospital. By that time, he had regained some sensation and movement below T7, but was still greatly impaired in his movements, balance, and bladder and bowel function.
On 9 October 2023, the day before his trial commenced, the applicant pleaded guilty to the charge of being a prohibited person in possession of a firearm. But he resisted the attempted murder charge and the trial therefore proceeded. The applicant advanced a defence of self-defence, consistently with the position taken in his police interview. On 24 October 2023, he was found guilty of attempted murder by jury verdict.

Sentencing

At the time of sentence, the applicant was 39 years old. He was born in former Yugoslavia to an Albanian family of modest means. He was violently assaulted by some neighbours during his adolescence. He left school at 16 to work full-time on the family farm.[6] When he was 21, he undertook national military service. He moved to Australia in 2008 and since then had no significant periods of unemployment.[7]
[6]A psychological report tendered on the plea stated that the applicant’s education ended much earlier, after grade four of primary school.
[7]DPP v Malovski [2023] VSC 748 [28] (Tinney J) (‘Sentencing Remarks’).
The applicant’s criminal history comprised a single court appearance at Sunshine Magistrates’ Court on 29 October 2021, on one count of being a non-prohibited person possessing a handgun, two counts of persistent contravention of a family violence intervention order, a single count of contravention of a family violence intervention order, two counts of making a threat to kill, unlawful assault, two counts of committing an indictable offence whilst on bail, using a carriage service to harass and failure to store a handgun and ammunition correctly. These charges related to the harassment and intimidation of Ms Rakipi and Mr Grant described earlier in these reasons.[8] As already mentioned, the applicant was sentenced to an aggregate term of 8 months’ imprisonment. The attempted murder of Mr Grant occurred less than six months later.[9]
[8]See [6] above.
[9]Sentencing Remarks [29]–[30].
A psychological report of Dr Aaron Cunningham was tendered by the applicant on the plea. The judge noted Dr Cunningham’s finding that the applicant did not have a mental illness, and the applicant’s statement to Dr Cunningham that he had been ‘clean’ of drugs and alcohol for his whole life. The applicant claimed to Dr Cunningham that Mr Grant was a drug user with an aggressive personality and a criminal history. He denied wanting to murder Mr Grant. Dr Cunningham opined that the applicant presented a moderate risk of future violent offending. The judge found that there was nothing in the report that assisted Mr Grant. He said the finding as to the likelihood of future violent offending may point to a need for specific deterrence and protection of the community.[10]
[10]Ibid [31]–[32].
As to the attempted murder charge, the judge observed that the maximum penalty indicated it is one of the most serious crimes that can be committed and noted that, in contrast to murder, it requires a specific intent to kill.[11] The judge accepted the prosecutor’s characterisation of the offending, which fixed on the following characteristics:
(a)the applicant’s motive, which was his jealous desire to control Ms Rakipi and to deal with a man he suspected of being romantically involved with her;
(b)the degree of premeditation, which was referrable at least to the moment he came upon Mr Grant on the day in question;
(c)the determined nature of the attempted murder;
(d)the horrifying physical and psychological impact of the offending on Mr Grant;
(e)the carrying out of the offending in front of the applicant’s young son, niece, and former wife;
(f)the public location in which the offending was conducted; and
(g)the applicant’s lack of remorse.
The judge found that this was ‘an exceedingly serious instance of the crime of attempted murder, which, for what little it is worth, would sit comfortably within the upper end of the range of seriousness’, and determined that the applicant’s moral culpability for the attempted murder was ‘very high’.[12]
[11]The judge cited Hudson v The Queen (2010) 30 VR 610, 628 [69] (Ashley, Redlich and Harper JJA) (‘Hudson’).
[12]Sentencing Remarks [33]–[37].
The judge then turned to the firearm charge. He observed that the objective gravity of the offence may be significantly influenced by whether the evidence would warrant a conclusion that the firearm was possessed for the purpose of criminal activity.[13] He rejected the applicant’s explanation for carrying the firearm, namely that he had acquired it and usually carried it with him because he was concerned by the potential for Mr Grant to attack him. The judge made it clear, however, that he would not act on the basis that the firearm was acquired for the purpose of shooting Mr Grant.[14] He said that the fact of the applicant’s prior imprisonment for possessing a loaded handgun, not long before the offending, made his possession of the handgun before he chose to use it a ‘serious enough’ instance of the crime in question.[15] The judge said ‘[t]hat you saw fit to go about … the suburbs of Melbourne on 7 May 2022 armed with a concealed and loaded handgun is a concerning aspect of your overall criminality in this case’.[16]
[13]Berichon v The Queen (2013) 40 VR 490, 496 [26] (Redlich JA) (‘Berichon’).
[14]Sentencing Remarks [38]–[40].
[15]Ibid [40].
[16]Ibid.
Seven victim impact statements were in evidence on the plea, including one of Mr Grant, who said:
The incident has affected me physically to the point where I am now a T9 paraplegic, which in short means my bowels, my legs, my bladder, my core muscles, feeling in my body, my balance, standing, strength, stamina and sexual function have all been significantly affected. Even though I have made some progression, I will never fully recover physically or mentally from the trauma I have experienced, not to mention the extensive scars I have all over my body which are a daily reminder of what happened…[17]
[17]Ibid [43].
The judge noted that many basic requirements of daily living had become very difficult or impossible for Mr Grant, and will remain so for the rest of his life. The offending had made it impossible for Mr Grant to continue work as a personal trainer, which meant he had ‘suffered a great deal financially’.[18]
[18]Ibid [44].
The judge also referred to statements of RD and Ms Rakipi.[19] RD’s sleep had become beset by nightmares and he said that the offending had shattered his life.[20] Ms Rakipi had developed severe mental health problems and a fear that the applicant will ‘kill or at least try to kill anyone that gets close to [her]’.
[19]Ibid [48]–[49].
[20]Ibid [48].
In respect of the attempted murder, the judge found that the applicant presented as entirely unrepentant. As for the firearm charge, he noted that the applicant was entitled to the full utilitarian benefit of his plea of guilty, but found that it would not be appropriate to infer any aspect of remorse from that plea. Rather, having admitted to his possession of the firearm during his police interview, he could not plausibly defend the charge, and his plea was no more than an acknowledgment of that fact.[21]
[21]Ibid [51]–[54].
The judge found that the applicant’s prospects of rehabilitation were poor. While his criminal history was limited, it was very significant in the context of the attempted murder — taken as a whole, the body of criminal conduct indicated that the applicant had failed to come to terms with the end of his marriage. The judge said ‘[t]here is no reason to think that the anger and resentment which was at the heart of [the] prior offending … has dissipated’, and found that the applicant would present an enduring danger to Ms Rakipi and her associates so long as those feelings persisted.[22]
[22]Ibid [55]–[56], [58]–[61].
The judge considered the application of the serious offender provisions in pt 2A of the Sentencing Act 1991. Because of the applicant’s prior convictions for making threats to kill, he was to be sentenced as a serious violent offender for the charge of attempted murder.[23] The judge acknowledged that s 6D required him to regard protection of the community from the applicant as the principal purpose of the sentence. The judge said that, even in the absence of s 6D, he would have considered that purpose to be very important. The fact that the applicant was willing to ‘go to such extreme lengths for so little reason’ raised the concern that he ‘may see fit to do something similar in future’.[24] The judge referred to s 6E and said he would cumulate ‘an appropriate portion’ of the sentence for the firearm offence.[25]
[23]Sentencing Act 1991, s 6B(1)–(2), sch 1 cl 3(b)(iii).
[24]Sentencing Remarks [67].
[25]Ibid [63]–[67].

The judge turned to current sentencing practices. Defence counsel had tendered the most recent Sentencing Snapshot for the crime of attempted murder, which was published on 30 January 2007 and related to the period 2001–02 to 2005–06.[26] The snapshot showed sentences ranging from 6 to 18 years.[27] The judge noted the observations of the Court in Hudson in 2010, that the snapshot was ‘somewhat dated’ and that its statistics ‘provide limited assistance as a guide to the appropriate sentencing range’.[28] The judge noted that this was ‘even more the case’ 13 years later.[29] Also before the judge were a number of cases identified by the prosecutor as examples of ‘serious cases’ of attempted murder.[30] The judge said that current sentencing practices showed that ‘a wide variety of sentences have been imposed for [attempted murder], reflecting the great variation in the objective seriousness of offences, and the extent and quality of mitigating features’.[31] He foreshadowed that he would not go beyond the range indicated by current sentencing practices, but that the sentence he would pass would exceed any sentence previously imposed for attempted murder in Victoria, reflecting the considerable objective seriousness of the crime, the terrible and permanent injuries sustained by Mr Grant, and the ‘almost total absence’ of mitigating features.[32] As for the firearm offence, the judge said he had regard to ‘such material as is available’ to illuminate sentencing practices for the offence.[33]
[26]Sentencing Advisory Council, Sentencing Trends for Attempted Murder in the Higher Courts of Victoria 2001–02 to 2005–06 (Sentencing Snapshot No 21, 30 January 2007).
[27]Of the sentences captured by the snapshot, only one was for 18 years’ imprisonment. As the judge observed, that sentence was successfully appealed in R v McIntosh [2005] VSCA 106 (‘McIntosh’), but the individual sentence was nevertheless found to have been within the available range: at [16].
[28](2010) 30 VR 610, 628 [70] (Ashley, Redlich and Harper JJA).
[29]Sentencing Remarks [71].
[30]Ibid [68].
[31]Ibid [73].
[32]Ibid [73].
[33]Ibid [74].
The judge said it was necessary for there to be an appropriate degree of cumulation between the sentences for the firearm offence and the attempted murder offence, having observed that the firearm offence was ‘an entirely separate offence involving separate criminality’, and that it was a serious crime, especially given the relevant prior conviction for possession of a handgun and the danger presented to the community by a person being in public with a loaded firearm.[34] The judge said that he had had regard to the principle of totality in determining the applicable degree of cumulation.[35]
[34]Ibid [75].
[35]Ibid.
The judge indicated that the sentence needed to serve the purpose of specific deterrence.[36] He said that the sentence needed to reflect denunciation by ‘unambiguously’ demonstrating the Court’s ‘condemnation and abhorrence on behalf of the community of the type of violent criminality in which [the applicant] engaged in … and the dangerous and troubling motivation which was at its heart’.[37] The judge observed that male violence towards former intimate partners, or new friends of them, is ‘depressingly frequent’ and is to be ‘deplored and discouraged’.[38] In that respect, general deterrence was called for.[39]
[36]Ibid [76]–[77].
[37]Ibid [80].
[38]Ibid [81].
[39]Ibid.
The judge said that rehabilitation ‘rarely ceases to have any significance’, but that it did need to give way to more important sentencing purposes in the applicant’s case.[40] He nevertheless indicated an intention to impose a non-parole period that could facilitate a significant period of rehabilitation in the community, notwithstanding that the proportion between the head sentence and the non-parole period would be a ‘higher proportion than is sometimes the case’.[41]
[40]Ibid [82].
[41]Ibid [82]–[83].
The judge went on to sentence the applicant as set out earlier in these reasons.[42]
[42]See [1] above.

Applicant’s submissions

The applicant submitted that the fact that the sentence on the attempted murder charge is the longest sentence in Victorian history invites appellate scrutiny.[43] While it was a ‘very serious example of the offence’, it did not fall into the worst category. The Sentencing Snapshot relied on by the judge showed that sentences in the relevant period ranged from 6 to 18 years,[44] and more recent statistics revealed no longer sentence had been passed since. The applicant embraced a submission made by defence counsel on the plea that the offending did not amount to the ‘most serious version’ of the offence, while accepting that there were no mitigating features that would warrant a meaningful departure from the range illustrated by current sentencing practices. He submitted that the cases relied on by the prosecution on the plea served to demonstrate the excessive nature of the sentence, as they were almost invariably more serious than this case, but involved shorter sentences.[45]
[43]R v Bangard (2005) 13 VR 146, 153 [40] (Nettle JA).
[44]As already mentioned, the 18-year sentence in this range was reduced to 16 years on appeal, but the 18‑year sentence was nevertheless found to be within the available range: McIntosh [2005] VSCA 106 [16] (Chernov JA, Batt JA agreeing at [30], Vincent JA agreeing at [32]).
[45]By way of example, the applicant referred to R v Boaza [1999] VSCA 126 (‘Boaza’), McIntosh [2005] VSCA 106 and Constantinou v The King [2024] VSCA 79 (‘Constantinou’).
The applicant referred to various other factors said to demonstrate that the circumstances of his case fell short of warranting the longest sentence ever imposed. These were as follows:
(a)While there was a background of animus directed from the applicant to Mr Grant, there was no plan to confront Mr Grant on the day of the offending. There was no significant premeditation.
(b)The applicant’s criminal history was limited to a single court appearance, and he had otherwise led a ‘positive and offence-free life’.
(c)There was no suggestion that the applicant was a generally antisocial or violent person, or that he presented a risk to the community at large. The risk he posed was limited to Ms Rakipi and persons associated with her.
(d)A substantial period of the applicant’s life was ‘positive and productive’. He had no history of drug or alcohol abuse and no mental health issues. He had a positive employment history. Aside from his relationships with Ms Rakipi and Mr Grant, he had a history of ‘appropriate, positive and pro-social relationships’.
(e)Given the length of the sentence imposed, it could not be said that the applicant was at a high risk of re-offending against Mr Grant in the future.
Having regard to these factors and the submissions made about current sentencing practices, the applicant submitted that it was clear that the sentence imposed on the charge of attempted murder was wholly outside the permissible range.
In respect of the firearm offence, the applicant submitted, by reference to statistics published by the Sentencing Advisory Council,[46] that the sentence passed by the judge appeared to be the highest ever imposed. That was said to suggest error, in the light of the applicant’s plea of guilty and the absence of any finding that the weapon was possessed by the applicant in association with other criminal activity. The applicant referred to Berichon, in which this offence was said to fall into two broad categories according to whether the possession of the firearm was or was not associated with any criminal activity or purpose.[47] The applicant submitted that his case fell into the latter category, making it clear that it was not open to impose the highest sentence recorded. He submitted that comparative sentencing practices showed that more serious cases resulted in shorter sentences than in this case.[48]
[46]Sentencing Advisory Council, Prohibited Person Possess, Carry or Use a Firearm: Higher Courts Sentencing Outcomes, 1 July 2018 to 30 June 2023 (SACStat Sentencing Statistics, 17 July 2024).
[47](2013) 40 VR 490, 496 [26] (Redlich JA); Sultan v The King [2022] VSCA 205 [39] (Kennedy and Kaye JJA) (‘Sultan’).
[48]The applicant referred to Salapura v The Queen [2018] VSCA 255 (‘Salapura’), Ah-Kau v The Queen [2018] VSCA 296 (‘Ah-Kau’), DPP v Le [2019] VSCA 258 and Constantinou [2024] VSCA 79.
The applicant also impugned the order for cumulation on the firearm charge. Having regard to the principle of totality, he submitted that two years’ cumulation was manifestly excessive and amounted to double punishment.
At the hearing, in respect of both charges, the applicant submitted that the judge broke with current sentencing practices by raising the ceiling of the established ranges for both charges. Senior counsel submitted that the judge provided no rationale for doing so, and submitted that, in any event, a shift of that nature would need to be foreshadowed and decided upon by the Court of Appeal. It was also submitted that the applicant’s criminal intent was bounded by a ‘passion’ that emerged from the breakdown of his marriage. This was said to distinguish the applicant’s offending from other motives and circumstances said to be more egregious.[49]
[49]The applicant contrasted his case, in particular, with Constantinou, which was said to be the ‘obvious’ comparator.
In summary, the applicant submitted that both individual sentences, the order for cumulation on the possession charge, the total effective sentence, and non-parole period were manifestly excessive. The applicant accordingly submitted that lower sentences should be imposed on each charge, with only modest cumulation.[50]
[50]Senior counsel accepted that some cumulation was called for.

Respondent’s submissions

The respondent submitted that the attempted murder was extremely serious, with an almost total absence of mitigating features. The sentence of 18 years’ imprisonment was just in all the circumstances, and even if it was ‘above the current practice’, there was no basis to disturb it.
The respondent submitted that attempted murder is an inherently serious offence, as shown by the maximum term of 25 years’ imprisonment, the second highest in the criminal calendar. The respondent referred to the egregious features of the offending, the history of enmity by the applicant towards Mr Grant, the applicant’s prior convictions, and the impact of the crime on Mr Grant. The applicant did not have the benefit of a plea of guilty.
The respondent referred to the judge’s finding that the offending sat in the ‘upper end of the range of seriousness’,[51] and his acceptance of the prosecution’s characterisation of the seriousness of the crime, which placed it ‘at or approaching the worst case example of this offence’.[52] The respondent argued that the judge did not actually find that the offending was in the worst category, and that it does not follow that, simply because the highest sentence in Victorian history was imposed, the case was of that description. If the judge had found that the case did fall into that category, he would have imposed the maximum penalty.[53] Instead, he imposed a sentence that was 72 per cent of the maximum, befitting an offence that was a very serious example of attempted murder.
[51]Sentencing Remarks [36].
[52]Ibid [34], [36].
[53]R v Kilic (2016) 259 CLR 256, 265–6 [18] (Bell, Gageler, Keane, Nettle and Gordon JJ).
The respondent submitted that consideration of other sentences provides only limited assistance in determining whether a sentence is manifestly excessive.[54] That was especially so in this case, where certain cases to which the judge had been referred were ‘very dated’.[55] Further, while a court is required to have regard to current sentencing practices,[56] such practices do not have the effect of capping the sentencing discretion,[57] and do not establish that the range of sentences previously imposed is the correct range.[58]
[54]Boaza [1999] VSCA 126 [18] (Chernov JA, Phillips JA agreeing at [54]).
[55]Boaza [1999] VSCA 126; McIntosh [2005] VSCA 106; Hudson (2010) 30 VR 610.
[56]Sentencing Act 1991, s 5(2)(b).
[57]DPP v OJA (2007) 172 A Crim R 181, 196 [30]–[31] (Nettle JA, Ashley JA agreeing at [71], Redlich JA agreeing at [72]); [2007] VSCA 129; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 445 [51] (Kiefel CJ, Bell and Keane JJ) (‘Dalgliesh’).
[58]Dalgliesh (2017) 262 CLR 428, 450 [83] (Gageler and Gordon JJ).
In respect of the firearm offence, the respondent observed that it was common ground on the plea that the offending, while pleaded on the indictment to have occurred on 7 May 2022 (the same day as the attempted murder), concerned only the period on that day running up to, but not including, the attempted murder. The judge correctly recognised that this was ‘an entirely separate offence’ that involved ‘separate criminality’.[59]
[59]Sentencing Remarks [75].
The respondent referred to this Court’s decision in Kelly v The Queen (‘Kelly’), where it was held that the categories in Berichon are not a prescriptive framework for assessment of the seriousness of the offence, and it was emphasised that the task of a sentencing judge is to impose a sentence that is just, having regard to the circumstances of the offending and the offender.[60] In Kelly, the Court held that the fact that the offender possessed a firearm without association with some ongoing criminal activity did not necessarily mean that his offending could not be regarded as ‘very serious’.[61] In the light of these observations, the respondent suggested that it was open to the judge to sentence the applicant on the basis that his crime was serious, having regard to his prior conviction for possession of a handgun and the ‘obvious dangerousness of a person going about in the community armed with a loaded handgun’.[62]
[60][2020] VSCA 171 [44] (Priest and Kyrou JJA) citing Dalgliesh (2017) 262 CLR 428, 433–4 [4]–[7] (Kiefel CJ, Bell and Keane JJ).
[61][2020] VSCA 171 [44] (Priest and Kyrou JJA).
[62]Sentencing Remarks [75].
The respondent submitted that the judge did not fall into error simply by imposing the highest sentence ever imposed for this offence either. The respondent adopted the submissions made in respect of the attempted murder charge.[63]
[63]See above at [46].
The respondent argued that the orders for cumulation were appropriate in recognition of the fact that the firearm offence was very serious and separate offending. By structuring the sentence so that 60 per cent of it would be served concurrently with the base sentence, the judge demonstrated his awareness of the need to avoid double punishment. The respondent further submitted that the total effective sentence was just, appropriate and reflective of an appropriate measure of the overall criminality.[64] In respect of the non-parole period, the respondent submitted that the period imposed by the judge was unexceptional and entirely within the permissible range, having regard to the gravity of the offending and applicable sentencing principles.[65]
[64]Tedford v The Queen [2020] VSCA 71 [30] (Priest, Beach and T Forrest JJA).
[65]Kumova v The Queen (20112) 37 VR 538, 545 [27] (Redlich and Osborn JJA).
At the hearing, the respondent resisted the applicant’s submission that the sentencing judge sought to impose a sentence that would extend the upper limit of the ranges revealed by current sentencing practices. Counsel for the respondent argued that the judge merely sought to impose a sentence he thought was appropriate, and arrived at a sentence that was justifiable having regard to the horrific nature of the offending.

Consideration

The question when the ground of manifest excess is raised is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.34F[66] The applicant must show that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.35F[67] An allegation of manifest excess is a challenge to the exercise of a discretion which does not depend on specific error, as articulated in House v The King.36F[68]
[66]R v Abbott (2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.
[67]Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[68](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ). See Markarian v The Queen (2005) 228 CLR 357, 370–1 [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen (2010) 242 CLR 520, 538 [58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The applicant submitted that the individual sentences, the order for cumulation and the non-parole period are all manifestly excessive. It is convenient to start with the individual sentences.

Attempted murder

It is not in dispute that this was a very serious instance of the offence of attempted murder. Among the features of the case compelling that conclusion are the catastrophic injuries sustained by Mr Grant, the determined and persistent nature of the attempt to kill him, the context of family violence (and the subsistence of a family violence intervention order), and the public setting of the offending, in the presence of children including family members. This was a callous and cowardly attempt to perform a public execution of a person with whom the applicant perceived his former partner had entered into a relationship. The applicant had recently served an aggregate term of 8 months’ imprisonment on charges related to his former partner and Mr Grant, including making threats to kill, persistent contravention of a family violence intervention order, possessing a handgun and using a carriage service to harass. The judge found that the applicant had exhibited no remorse and would remain a dangerous person for a long time to come, assessing his prospects of rehabilitation as poor.
The maximum sentence for attempted murder is 25 years’ imprisonment.[69] There is no standard sentence for the offence.
[69]Crimes Act 1958 ss 3(1), 321M, 321P(1)(a). See also s 321P(1A).
The applicant relies on the fact that the present sentence appears to be the highest imposed for attempted murder in this State, and points to aspects of the case which are said not to warrant that result. It is said that there was no significant premeditation, and that apart from his single recent court appearance, the applicant has lived a positive life free of drug or alcohol abuse, without criminal offending. There is said to be no suggestion that he has been generally violent or antisocial. He poses a risk to his former partner and those associated with her, which is said not to be high, but no risk to the community at large.
To a significant extent, these submissions point to the absence of further aggravating factors, rather than matters in mitigation of the violent offending centred on the applicant’s former partner and her associates. The fact that it is possible to imagine worse offending or cases involving other aggravating features does not take the matter very far. The judge accepted the prosecution submission that this case was ‘at or approaching the worst-case example of this offence’.[70] If the case was in the ‘worst category’, that would suggest that it warrants the maximum penalty for the offence.[71] The judge did not regard it as a ‘worst category’ case; rather, it was ‘comfortably within the upper end of the range of seriousness’.[72] In other words, the fact that the sentence was the highest in the State does not lead to the conclusion that the offence was treated as being in the ‘worst category’. In that respect, the applicant’s submissions miss the mark.
[70]Sentencing Remarks [34], [36].
[71]R v Kilic (2016) 259 CLR 256, 265–6 [18] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[72]Sentencing Remarks [36].

The applicant also referred to cases said to demonstrate current sentencing practices within the meaning of s 5(2)(b) of the Sentencing Act. As the judge recognised, these cases are not precedents and are but one factor to be taken into account in the overall sentencing synthesis.[73] In any event, the cases do not sit uncomfortably with the present sentence. Nor do they, as the applicant submitted, indicate that the sentencing judge sought to increase the applicable sentencing range for the offence of attempted murder. The judge expressly disavowed any such intention, and we would be slow to conclude otherwise.
[73]Dalgliesh (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ).
Two cases in particular suggest that the sentence of 18 years’ imprisonment in this case was in fact consistent with current sentencing practices. In Constantinou, the offender shot a man he found his romantic partner with at close range in the head, having travelled to the location believing her to be with a different man who he believed she had been seeing. He was convicted after a trial and sentenced to 16 years’ imprisonment. This Court described the sentence as ‘quite reasonable’.[74] While the offender had a significant criminal record, it seems that the serious ongoing effects on the victim in that case were somewhat less grave than the lasting impact on Mr Grant.
[74]Constantinou [2024] VSCA 79 [131] (Macaulay, Kaye and T Forrest JJA).
The second case is McIntosh. The offender in that case attempted to kill two persons who had witnessed his armed robbery of a shop, by hitting them repeatedly in the head with a hammer. Both suffered ongoing injuries and deficits from the attack, although again less serious than those afflicting Mr Grant. After a plea of guilty, sentences of 18 years’ imprisonment were imposed on each charge of attempted murder. This Court reduced those sentences to 16 years, on the basis of considerations of totality. In doing so, the Court described the 18-year sentences as ‘near the top’ of the available range.[75] Notably, the offender was on parole at the time of the offences. Plainly, had he not pleaded guilty, the sentences for attempted murder would have been no lower than in the present case, and most likely would have been higher.
[75]McIntosh [2005] VSCA 106 [16] (Chernov JA, Batt JA agreeing at [30], Vincent JA agreeing at [32]).
A third case is also broadly consistent. In Boaza, the offender repeatedly stabbed his former partner, including twice in the heart and once in the liver and a lung. After pleading guilty, he was sentenced to 14 years’ imprisonment. Again, the sentence is comparable with the sentence of 18 years after a trial, imposed in this case.
The Court was referred to three other cases where lower sentences were imposed. In Fares v The King, the offender killed two people and attempted to kill two others by shooting from a vehicle at a group of people on a footpath.[76] He was sentenced to life imprisonment for each of the murders and 12 years’ imprisonment for the attempted murders. Both victims of the latter offending had relatively minor injuries, having been shot in the arm and the shoulder respectively, which had not put their lives at risk. This Court did not address the sentences for attempted murder, which were not in issue. This offender pleaded not guilty.
[76][2024] VSCA 108.
DPP v Jensen involved an offender attempting to kill the new partner of his former partner, and also the former partner herself.[77] Neither sustained permanent injury. Sentences were imposed of 12 and 14 years’ imprisonment respectively.
[77][2019] VSC 327.
Both these cases arguably involved less serious offending, and the sentence in Jensen was imposed after a guilty plea. They do not point to a disconformity between the present sentence and current sentencing practices.
Finally, in Hudson, which involved a charge of murder and two of attempted murder, sentences of 14 years and 6 months’ imprisonment and 16 years’ imprisonment respectively were imposed for the attempted murders. The higher sentence was imposed in respect of a person shot by the offender when he came to the aid of a woman who was being assaulted by the offender; he was shot twice, once while lying on the ground. The lesser sentence was for the attempted murder of the woman in question. Importantly, these sentences were imposed by this Court upon allowing an appeal by the Director of Public Prosecutions, at a time when the principle of ‘double jeopardy’ applied to require that a discount be applied to sentences imposed in that context.[78] In addition, the offender pleaded guilty. It is clear that these sentences too sit comfortably with that imposed in the present case.
[78]Hudson (2010) 30 VR 610, 630 [75] (Ashley, Redlich and Harper JJA).
We do not consider that there is any basis for regarding the 18-year sentence imposed in this case as manifestly excessive. As the judge held, this case was comfortably within the upper end of the range of seriousness for attempted murder. The applicant fired multiple shots at Mr Grant as he ran from him, the final bullet hitting him in the middle of the spine as his back was turned. This offending was, as we have said, a callous and cowardly attack on an unarmed victim, in a public place and in the presence of members of the public and family members, including children. The applicant has shown no remorse. The report of Dr Cunningham expresses the opinion that he is at a moderate risk of further violent offending and the material provides no basis for thinking otherwise.
We do not accept the applicant’s argument that the sentence should be moderated because the offending was driven by irrational passion to the point of rage, and because the applicant poses no threat to the wider community. To the contrary, the family violence context in which the offence was committed heightens the importance of general deterrence. Similarly, the fact that the applicant’s only prior convictions related to the same relationship breakdown only underlines their importance to the sentencing task. If there was a time when considerations of this kind were treated as diminishing the seriousness of an offence of violence, that time has long passed. Those who attempt to kill their former partners, or persons close to their former partners, must expect very substantial sentences of imprisonment.

Prohibited person possessing firearm

The sentence of 5 years’ imprisonment imposed on the charge of being a prohibited person in possession of a firearm concerned the applicant’s possession, on the same day but only before the attempted murder of Mr Grant, of the firearm used in that offending. The sentencing judge was careful not to impose double punishment by treating the fact that the applicant was a prohibited person as aggravating the attempted murder offence.[79] But conversely, the possession of the firearm could not be treated as being associated with any criminal activity or purpose.[80]
[79]Sentencing Remarks [40].
[80]Berichon (2013) 40 VR 490, 496 [26] (Redlich JA); Kelly [2020] VSCA 171 [53]–[66] (Priest and Kyrou JJA).
It is, however, significant that the firearm in question was a loaded handgun possessed in public, for which no lawful use was identified.
The applicant pleaded guilty to the firearm charge, for which the maximum penalty was 10 years’ imprisonment. A sentence of half the statutory maximum, after a guilty plea, suggests a very high degree of seriousness. While the applicant was a prohibited person by virtue of his earlier offending, he had no convictions for the present offence. Material supplied to this Court, to which it appears the sentencing judge did not have access, shows that the median sentence for the offence between 2018 and 2023 was 1 year.[81] Of 315 sentences, none were as high as the present sentence and only two were 4 years or over. That material groups cases of a prohibited person possessing, carrying and using a firearm, each of which can constitute the offence under s 5(1) of the Firearms Act. All things being equal, using a firearm might be thought more serious than mere possession.
[81]Sentencing Advisory Council, Prohibited Person Possess, Carry or Use a Firearm: Higher Courts Sentencing Outcomes, 1 July 2018 to 30 June 2023 (SACStat Sentencing Statistics, 17 July 2024) <>
We have had regard to a number of cases where substantial sentences were imposed for the offence of being a prohibited person in possession of a firearm. They serve to confirm that the sentence imposed in this case was outside the available range. All involved guilty pleas. Many other cases reveal lower sentences.[82]
[82]See, eg, Sultan [2022] VSCA 205 (1 year 3 months); Zogheib v The Queen (2015) 257 A Crim R 454; [2015] VSCA 334 (1 year); DPP v Graoroski [2018] VSCA 332 (1 year 6 months); DPP v Le [2019] VSCA 258 (1 year).
In Salapura, a sentence of 3 years’ imprisonment was imposed. The offender carried a loaded handgun in the course of an aggravated burglary. He had previous firearms convictions, including possession of an imitation firearm while being a prohibited person.
In Ah-Kau, the offender had an extensive criminal history, not involving violence but including three prior convictions for being a prohibited person in possession of an unregistered firearm, contrary to s 5(1A) of the Firearms Act.[83] Those convictions concerned two semi-automatic assault rifles and a double-barrelled shotgun. The maximum sentence for that offence, which existed between 2003 and 2012, was 15 years’ imprisonment. In the case at hand, which involved possession of a firearm in connection with an armed robbery committed by a co-accused, a sentence of 3 years and 6 months’ imprisonment was imposed for possession of a firearm contrary to s 5(1).[84]
[83]Repealed by Control of Weapons and Firearms Acts Amendment Act 2012, s 8(2).
[84]The judgment incorrectly records at [1] that the maximum penalty at this time was 7 years. The maximum penalty was 10 years.
In Kelly, the weapon in question was a semi-automatic pistol with a magazine containing multiple cartridges, possessed for some two months and readily accessible and unsecured in a house occupied by the offender’s partner and child. The sentence on possession of that firearm as a prohibited person was 3 years’ imprisonment.
More recently, Young v The King involved a sentence of 2 years and 9 months’ imprisonment for a prohibited person possessing a revolver.[85] The offender had a significant criminal history and was ‘no stranger to illegal firearms’.[86] The Court regarded the possession of the firearm as more serious because it was associated, albeit incidentally, with other criminal offending (including trafficking a drug of dependence).
[85][2024] VSCA 179.
[86]Ibid [23] (Priest and Niall JJA).
The highest sentence imposed under s 5(1) of the Firearms Act of which we are aware was 6 years’ imprisonment for a rolled-up charge of use (not mere possession) of a revolver in the course of a siege lasting 44 hours: Binse v The Queen.[87] The offender had an extensive criminal history involving multiple firearm offences. On the same occasion, he was sentenced to 2 years’ imprisonment on a charge of possessing a firearm as a prohibited person, after having produced a revolver during an incident at a restaurant. He was further sentenced to 4 years’ imprisonment on a rolled-up charge of possession of a firearm as a prohibited person, which related to a loaded semi-automatic handgun fitted with a silencer found in a motor vehicle, and four firearms located in a storage unit, being another revolver, a rifle, a shotgun and a submachine gun.
[87][2016] VSCA 145.
We note in passing that the offence which formerly existed of being a prohibited person in possession of an unregistered firearm attracted higher sentences, on the whole, reflecting the maximum sentence of 15 years’ imprisonment applicable to that offence.[88] We are not aware of a case in which a sentence was imposed for that offence higher than that in the present case.
[88]See, eg, DPP v Faure (2005) 12 VR 115 (3 years); Berichon (2013) 40 VR 490 (3 years 6 months); Lipp [2013] VSCA 384 (first count: 3 years and 6 months; second count: 3 years); Wagner v The Queen [2014] VSCA 157 (2 years).
Being a prohibited person in possession of a firearm is no mere technicality. The maximum penalty of 10 years’ imprisonment marks the offence as a very serious one. The presence of firearms in the hands of those whom the legislature has provided are the very people who should not have access to them presents a danger to the whole community. As this Court said in Young, it is impossible to ignore the ubiquity of illegal firearms in the community and the very great harm that they cause.[89] Sentences should reflect this fact and serve to deter prohibited persons from having resort to firearms.
[89][2024] VSCA 179 [22] (Priest and Niall JJA).
We do not think, however, that the sentence imposed in this case fell within the range available to the judge. The guilty plea, the absence of a criminal purpose or activity related to the act of possession charged, the fact that the case involved bare possession on a single day, and the evidence of current sentencing practices to which we have referred, combine in our view to demand a substantially lower sentence. We would impose a sentence of 2 years and 6 months’ imprisonment.

Cumulation

In light of that conclusion, it is necessary to revisit the order for cumulation. The applicant was sentenced as a serious offender by virtue of his prior offences of violence. In particular, s 6E of the Sentencing Act relevantly required the term of imprisonment imposed for the offence of attempted murder to be served cumulatively on any sentence of imprisonment imposed at the same time, unless the court otherwise directed.[90]
[90]Sentencing Act 1991, s 6E.
There are ongoing tensions between the requirements of s 6E and, in particular, the principle of totality. The most that can be said is that s 6E and totality both apply, but that the full effect of totality is to be somewhat reduced in order to give proper effect to the legislative intent manifested in the section.[91] Senior counsel for the applicant very properly acknowledged that some degree of cumulation was appropriate.
[91]Zhao v The Queen [2018] VSCA 267 [91]–[94] (McLeish, Niall and Weinberg JJA).
In R H McL v The Queen,[92] referring to the predecessor of s 6E which was in the same terms, McHugh, Gummow and Hayne JJ said:
Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.[93]
[92](2000) 203 CLR 452.
[93]Ibid 477 [76] (McHugh, Gummow and Hayne JJ) (emphasis added). See also Gordon (a pseudonym) v The Queen [2013] VSCA 343 [74] (Redlich JA).
Applying the totality principle in a ‘more limited’ way, in our view cumulation of 12 months is appropriate.

Conclusion

The foregoing conclusions produce a total effective sentence of 19 years’ imprisonment. That sentence properly reflects the gravity of the overall offending. We will fix a non-parole period of 14 years and 3 months.
We will declare for the purposes of s 6AAA of the Sentencing Act that, but for the plea of guilty on the firearm charge, the applicant would have been sentenced to 3 years and 6 months’ imprisonment on that charge. We would in that situation have imposed a total effective sentence of 20 years’ imprisonment and fixed a non-parole period of 15 years.
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[2025] VSCA 72

11 April 2025