| 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… | |||
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Details
- AGLC
- Abil Malovski v The King [2025] VSCA 72
- Case
- [2025] VSCA 72
- Decision Date
CaseChat Overview and Summary
In this case, the applicant, Abil Malovski, was appealing against his sentence for attempted murder and for being a prohibited person in possession of a firearm. The appeal was heard by the Court of Appeal. The primary legal issues revolved around whether the sentences imposed were manifestly excessive, whether they were consistent with current sentencing practices, and whether the sentences for both offences should be cumulated.
The court found that the sentence of 18 years' imprisonment for the attempted murder was appropriate given the severity of the offence, which involved the applicant pursuing and shooting the victim in a callous and cowardly manner, resulting in severe and permanent disability. The court emphasised that the family violence context and the risk of reoffending warranted a substantial sentence. However, the court determined that the sentence of 20 years' imprisonment for possessing a firearm as a prohibited person was manifestly excessive. The court noted that the median sentence for this offence was significantly lower and that the applicant's possession of the firearm was a bare possession on a single day, without any associated criminal activity. The court also considered the applicant's guilty plea and the absence of a criminal purpose.
In light of these findings, the court substituted the sentence for the firearm offence with 2 years and 6 months' imprisonment. The court then revisited the issue of cumulation and determined that a cumulation of 12 months was appropriate, considering the legislative intent behind section 6E of the Sentencing Act. The court concluded that the total effective sentence should be 19 years' imprisonment, with a non-parole period of 14 years and 3 months.
The court's final orders were to reduce the sentence for the firearm offence to 2 years and 6 months' imprisonment, resulting in a total effective sentence of 19 years' imprisonment with a non-parole period of 14 years and 3 months. The court also declared that had the applicant not pleaded guilty to the firearm charge, the sentence would have been 3 years and 6 months' imprisonment, resulting in a total effective sentence of 20 years' imprisonment and a non-parole period of 15 years.
The court found that the sentence of 18 years' imprisonment for the attempted murder was appropriate given the severity of the offence, which involved the applicant pursuing and shooting the victim in a callous and cowardly manner, resulting in severe and permanent disability. The court emphasised that the family violence context and the risk of reoffending warranted a substantial sentence. However, the court determined that the sentence of 20 years' imprisonment for possessing a firearm as a prohibited person was manifestly excessive. The court noted that the median sentence for this offence was significantly lower and that the applicant's possession of the firearm was a bare possession on a single day, without any associated criminal activity. The court also considered the applicant's guilty plea and the absence of a criminal purpose.
In light of these findings, the court substituted the sentence for the firearm offence with 2 years and 6 months' imprisonment. The court then revisited the issue of cumulation and determined that a cumulation of 12 months was appropriate, considering the legislative intent behind section 6E of the Sentencing Act. The court concluded that the total effective sentence should be 19 years' imprisonment, with a non-parole period of 14 years and 3 months.
The court's final orders were to reduce the sentence for the firearm offence to 2 years and 6 months' imprisonment, resulting in a total effective sentence of 19 years' imprisonment with a non-parole period of 14 years and 3 months. The court also declared that had the applicant not pleaded guilty to the firearm charge, the sentence would have been 3 years and 6 months' imprisonment, resulting in a total effective sentence of 20 years' imprisonment and a non-parole period of 15 years.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.CumulationIn 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.ConclusionThe 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.---
Ratio Decidendi
Legal Principle Established
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