Director of Public Prosecutions v Malovski
[2023] VSC 748
•13 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0330
S ECR 2023 0226
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABIL MALOVSKI |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 December 2023 |
DATE OF SENTENCE: | 13 December 2023 |
CASE MAY BE CITED AS: | DPP v Malovski |
MEDIUM NEUTRAL CITATION: | [2023] VSC 748 |
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CRIMINAL LAW – Sentence – Attempted murder – Prohibited person possess firearm - Victim a friend of the accused’s estranged wife – Family violence context – Accused pursued and repeatedly shot victim on a roadside reserve – Shooting witnessed by accused’s estranged wife, 10 year old son and 12 year old niece – Damage to spine – Permanent and life-changing injuries – Significant prior convictions – Serious violent offender – Protection of community the principal sentencing purpose – Just punishment – Denunciation – General deterrence – Specific deterrence - Total effective sentence of 20 years’ imprisonment – Non-parole period of 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Glynn with Mr A Sprague | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr D Sala | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
Abil Malovski, on 24 October 2023, you were found guilty by a jury following a trial of the attempted murder of Steven Grant, having earlier, on 9 October 2023, pleaded guilty to a charge of being a prohibited person in possession of a firearm.
You have also admitted the prior convictions contained in the criminal record filed against you.
The maximum penalty for attempted murder is 25 years’ imprisonment. The maximum penalty for the prohibited person charge is 10 years’ imprisonment.
The attempted murder of which you were found guilty concerned your having confronted, pursued and then repeatedly shot Mr Grant, a friend of your ex-wife Flora Rakipi (‘Flora’), on the Saturday afternoon before Mother’s Day, 2022, as he, Mr Grant, was assisting Flora in a flower stall she had set up in a reserve at the side of a busy road in Melton. Having approached Mr Grant armed with a loaded .32 semi-automatic pistol, you threatened to kill him, then immediately commenced firing from close range. He fled for his life and you pursued him around the reserve for quite some distance, eventually bringing him to ground with a shot fired by you deliberately into his back which damaged his spine, rendering him, as it turned out, an incomplete T9 paraplegic. You fired no fewer than five shots at Mr Grant from close range, and the whole shocking event unfolded in front of many horrified motorists and other bystanders including your 10 year old son, whom I will call RD.
Those few words do not adequately convey the enormity of your outrageous conduct, which sits comfortably at the high end of the range of seriousness for instances of attempted murder.
The motive for your crime was your extreme anger at Mr Grant for his sin, as you saw it, of supplanting you in the life of your family, especially your children. I think it highly likely, although I reach no concluded view on the matter, that a secondary motive for your conduct was to send a clear message to Flora that you maintained some control over her in spite of the separation, and she was not free to live as she chose.
It is clear to me that you feel absolutely no remorse.
Background
You and your wife, Flora, separated in January 2021. You had two young sons aged 11 and 10 at the time. The break-up was not amicable and resulted in litigation in the Family Court. A final family violence intervention order (‘FVIO’) was made in the Sunshine Magistrates’ Court on 21 January 2022 which named Flora and the children as the protected persons. Amongst other things, the order prohibited you from approaching or remaining within 5 metres of your family unless permitted by a court order. No such orders were made, and as it turned out, you had no contact with your children after the separation. I am satisfied that this was a matter which caused you considerable distress.
After the end of the marriage, Flora formed a relationship of sorts with Mr Grant, who had been her personal trainer. Mr Grant became close to Flora and the children. At the trial, both Flora and Mr Grant denied that they were in a relationship of boyfriend and girlfriend, and whether they were or not is not important for present purposes, but one thing is clear. You found out about Mr Grant because you were secretly monitoring Flora’s telephone and social media accounts. You were convinced they were a couple, and you were very angry about the place Mr Grant had come to occupy in the lives of your ex-wife and children.
In June 2021, you telephoned Mr Grant, providing a false name. In a call on 20 June 2021, you told Mr Grant to stay away from Flora and called him a junkie. On 4 July 2021, you left a voicemail message referring to Mr Grant as a ‘mother fucker’ and a ‘son of a bitch’. You then called again and spoke to Mr Grant, calling him a fucking dog and a piece of shit, and saying that you were going to find him.
The ill-will you felt towards Mr Grant increased over time. The next year you made a series of posts on Instagram in February and March 2022 in which you indicated your enmity towards Mr Grant, and berated Flora for being with him and exposing the children to him. You called Mr Grant a drug user and a filthy pig, and exhibited your resentment at the idea that he may be the beneficiary of your possessions. You threatened Flora and Mr Grant, indicating that she would be punished for her actions, and that you were ready to ‘face the pig at any time’. You expressed your outrage that your ‘angels’ had to ‘kiss and hug that filthy pig’. Your final post read, ‘You know sometimes some people shoot themselves in the foot, I won’t enjoy anything until I finish all my plans’.
You attempted to murder Mr Grant little more than five weeks after that post, in full view of one of the children you had described as your ‘angels’.
Jumping forward to give some background to the posts you left as summarised above, when police examined your mobile phone after your arrest on 9 May 2022, a number of photographs depicting Mr Grant together with Flora and the children were stored on the phone. Some photographs showed the closeness of the relationship between your children and Mr Grant, including showing him and the children embracing and one of the boys kissing him on the cheek. You had apparently obtained these photographs from social media posts made by Flora.
In the police interview in which you participated after your arrest, you demonstrated a significant degree of interest in and apparent knowledge of the background of Mr Grant.
As put by the prosecution at the trial, the evidence summarised above demonstrated your extreme hostility towards Mr Grant, your bitter resentment of his role in the life of your children and ex-wife, and the powerful motive you had to kill him to remove him from their lives and prevent him from enjoying the fruits of your labour.
The offending
On Saturday 7 May 2022, Mr Grant and Flora attended with RD and Flora’s niece at a roadside reserve on the north side of Federation Drive, Melton, near the intersection with Sherwin Court. They were there to sell flowers from a stall which they had set up, in the lead-up to Mother’s Day the next day. Each of Mr Grant and Flora had driven to the location in their motor vehicle. The vehicles were parked near the tables set up to hold the flowers. This was a location from which Flora and her father had been accustomed to selling flowers in the lead-up to occasions such as Mother’s Day for a number of years, as you knew.
At about 3.00pm, Flora saw you drive slowly past the flower stall, heading east on Federation Drive. At the time she was sitting in her vehicle with the children. A few minutes later, you drove back, this time coming from the opposite direction. Although your initial drive past the location may have been an innocent coincidence, your return was anything but innocent. You drove just past the stall and then did a sudden U-turn before pulling up quickly near the stall. This manoeuvre was a rapid one, attracting the attention of a number of motorists and passengers. Something else which attracted attention was the very angry expression you had on your face. That angry expression was reflective of the intention I am satisfied you harboured by that time of acting on your hatred of Mr Grant and murdering him. Your actions in the minute or so of madness which followed your having parked your vehicle near the flower stall could be consistent with no other conclusion.
The events which transpired were witnessed in whole or in part by no fewer than 12 people, and were captured in chilling detail by dash cameras situated in passing motor vehicles. The most complete eye witness account was contained in the evidence of your victim, Mr Grant, whose sworn evidence in the trial I act on unreservedly.
Mr Grant did not see your vehicle drive past the first time, but was alerted to the fact by Flora. He was unperturbed, and intent on doing no more than asking you to move on should you return. When you did so, he was standing near the flower stall when you pulled up erratically nearby. He moved towards you, and then heard you screaming at him, ‘I’m going to kill you, you fucking piece of shit’. You got out of your vehicle and immediately produced a handgun and started shooting at him with no warning. He had no time to react, other than to raise his hands in submission with his palms facing towards you. You fired at least three shots in quick succession in this initial phase. One shot, likely the first one, hit the gold necklace Mr Grant was wearing, damaging the chain and causing it to fall to the ground and leaving a wound to the base of his neck on the left side. What was likely to be the second shot struck his right thumb as he held up his hands in surrender, smashing a bone and exiting the back of the thumb. Another shot grazed the left side of Mr Grant’s head. The bullet penetrated the side of the cap he was wearing, exiting at the rear, and causing a minor injury to the back left hand side of his head. I am satisfied that with each of these shots, and each and every one of the shots which followed, your intention was to kill Mr Grant.
As Mr Grant ran for his life away from you in a roughly circular pattern, through a stand of trees and to a grassy area some distance away, you pursued him, continuing to fire at him. It is likely that one of the shots he sustained to the centre of the back occurred close to a point where a fired cartridge case was later found by police and signified by exhibit marker 5. He lost one of his shoes close to this location.
He ran around in a loop, ending up back near the cars parked near the flower stall. By this time, he had slowed down, no doubt affected by the injuries he had already sustained. Much of that frantic journey was observed by horrified onlookers and captured on ‘dash cam’ footage. The final shot was particularly well depicted on the footage from the rear-facing camera in Lilly Hall’s vehicle, and Ms Hall observed the moments for herself, causing her to exclaim in horror as she saw the events unfolding. You can be seen facing Mr Grant from a distance of five or so metres. He turned to run from you one final time, and you fired at him, striking him in the back and bringing him to the ground. This, like all of the shots, was intended to be a fatal shot. It very nearly was. The shot damaged one or more spinal vertebrae of Mr Grant, impinging on his spinal cord and rendering him paralysed and with no feeling or movement in his legs. He lay helpless on the ground as you turned, returned to your vehicle and quickly departed the scene.
As I said, this extravagant display of violence by you was witnessed by many people, including your ex-wife and your ten year old son. Flora and RD observed the commencement of your attack, including Mr Grant holding his hands up in submission as you shot, and then pursued him. Flora described Mr Grant ducking and diving to try to avoid being shot after the initial shots. She screamed hysterically for RD to get in the car, and then drove herself and the children away from the scene, fearing that you may kill them all. She and the children witnessed at least some of the later events as the vehicle drove away.
John Zambelli, a motorist stationary in Sherwin Court waiting to turn right into Federation Drive, observed your hurried arrival at the scene, then saw you jump out of your vehicle, ranting and raving as he put it, then pulling out the gun and immediately firing at Mr Grant who ran for his life. He saw you chasing your quarry, firing shots as you ran.
It is unclear precisely how many shots were fired by you, but a combination of the injuries sustained by Mr Grant, the eye witness accounts and the audio tracks from dash cam footage would suggest there may have been as many as seven. In your interview, you indicated that there were seven rounds in the pistol. Six in the magazine and one in the breach. This may have been one of the only truthful things you said to the police. In any event, the precise number of shots is immaterial. On any view, this was a sustained and frightening attempt to murder a defenceless person in full view of members of the public, including your own 10 year old son.
Aftermath
After fleeing the scene, you returned the vehicle you had been driving to your brother. You took the firearm with you and disposed of it somewhere. It has never been found. You disposed of your mobile phone to avoid being tracked by the police. You stayed out of the way of the police until it suited you to surrender yourself. You did so after you had sought legal advice. I make the observation that what you subsequently said to the police would tend to indicate that by that time, if not before, you had some knowledge of the law of self-defence.
Police interview
When interviewed by the police on 9 May 2022, you claimed that you had attended at the scene of the events for the purpose of speaking with your son, a lie which you maintained during the trial. You claimed that Mr Grant, a person whom you considered to be a violent and dangerous, drug-using standover man, approached and threatened you before you shot him in self-defence. You denied chasing him and denied deliberately shooting him. You provided no explanation for having shot him twice to the back. You gave no evidence during the trial, but the entirely phony account you had provided the police, in which you had set up a completely sham defence of self-defence, was maintained on your behalf. It is entirely unsurprising that your very optimistic defence was so speedily rejected by the jury.
Mr Grant’s injuries
Mr Grant was taken by air ambulance to the Royal Melbourne Hospital (‘RMH’) with life-threatening injuries. A bedside ultrasound confirmed the presence of a right-sided haemothorax, a condition which by itself represented an acute threat to his life. He would have died without the intervention of appropriate treatment including the insertion of a chest tube. An emergency laparotomy was performed to assess his internal injuries, which included lacerations to his diaphragm and liver which were surgically repaired. He had gunshot wounds to the neck, back and thumb. Bullet fragments were recovered from the site of the neck injury, and two bullets which had entered through the back were recovered from the right front chest. Two spinal vertebrae, T9 and T10 were fractured, and a number of ribs on the right rear had been fractured by the passage of bullets. Most significantly, the spinal vertebrae fractures led to swelling of the portion of the spinal cord between those vertebrae. As I have mentioned, Mr Grant was unable to move or feel his legs immediately after the incident. The injury and resulting damage to his spine progressed during his time in RMH as, according to Dr Marr, who gave evidence in the trial, the disruption to the artery serving that part of the spinal cord led to a loss of blood supply and consequently the effective death of a part of the spinal cord. After a time at RMH, where he underwent a number of separate surgical procedures, Mr Grant was transferred to the Austin Hospital Spinal Unit, and then, in due course, to Royal Talbot Rehabilitation Centre until his discharge on 6 October 2022 after almost five months in hospital. He has been left an incomplete T9 paraplegic and will have life-long impediments as a result of his injuries. I will say more of this later.
Personal background
You are 39 years of age, having been born on 18 January 1984. You were born in what was then Yugoslavia to an Albanian family of modest means. You are the oldest of six children born to your parents; three daughters and three sons. You describe your parents as good. As a young child, you helped on the family farm after school. You report a fairly straight forward existence, with one problem being ongoing tensions and issues with your neighbours, as yours was the only Albanian family in a predominantly Macedonian area. You did apparently suffer a rather vicious assault at the hands of some neighbours over a sectarian or religious issue. You left school at 16 to work full-time on the family farm. You attained only a very limited level of formal education. You carried out national service in the military when you were 21. You came to Australia in 2007 as a tourist and then returned in 2008 when you married your former wife, Flora Rakipi. From the time you lived permanently in Australia, you worked in a succession of factories, first at Rapid Flow Group, a heating and cooling company, and then at Abbe Corrugated, a packaging company, before returning to Rapid Flow Group. During the COVID-19 pandemic, the factory at which you worked was closed, and you started a business as a concreter, but this did not work out, and you returned to factory work at a number of locations. You have had no significant periods of unemployment since arriving in Australia. At the time of the offences, you were employed as a forklift driver at BGC Plaster. Since being in custody, you have worked as a billet working on maintenance of the grounds.
Criminal history
You have a short but significant criminal history which is contained in the criminal record filed in this case. The history comprises one appearance at Sunshine Magistrates’ Court on 29 October 2021 on charges of being a non-prohibited person possessing a handgun, improper storage of ammunition, persistent contravention of a FVIO (2 charges), making a threat to kill (2 charges), unlawful assault, committing an indictable offence whilst on bail (2 charges), contravening a FVIO, and using a carriage service to harass. The offences were mainly committed against Ms Rakipi, but the charge of using a carriage service to harass concerned the phone calls and text messages you made or sent to Mr Grant in June and July 2021. The handgun possessed by you was a loaded .22 calibre Beretta handgun which was found concealed in a shed at your premises on 25 February 2021. One of the charges of making a threat to kill and assaulting Ms Rakipi concerned your having attended her premises in breach of a FVIO, holding a knife to her throat and threatening to kill her. The other threat to kill was made to her during a phone call on 6 July 2021. You persistently breached the FVIO by making numerous phone calls to Ms Rakipi.
The seriousness of these charges is reflected in the sentence you received on 29 October 2021, an aggregate term of 8 months’ imprisonment. Taking into account a period of pre-sentence detention, you were released from custody on 28 November 2021. The current offending occurred less than six months later.
Psychological material
A report from a psychologist, Dr Aaron Cunningham, was tendered during the plea hearing. The report pointed to the existence of no mental illness or personality disorder in your case, and no history of alcohol or drug abuse. A violence risk assessment carried out with the assistance of the HCR-20, a widely used risk assessment tool, showed you to present a moderate risk of future violence. It is apparent that in your consultation with Dr Cunningham on 17 and 20 November 2023, you accused your former wife of having an affair, and of running an illegal puppy farm from her home. You also denigrated the character of Mr Grant. You maintained your innocence of the attempted murder charge of which you have been found guilty, claiming that you purchased the gun the subject of the prohibited person charge because you felt you were in danger from Mr Grant.
There is nothing in the report which was of any assistance to you. The violence risk assessment may be considered to point to the need for specific deterrence and protection of the community where you are concerned.
Nature and gravity of offending and moral culpability and degree of responsibility
At the outset, it must be remembered that, as observed by the Court of Appeal in Hudson v R,[1] the maximum penalty of 25 years’ imprisonment for attempted murder makes it one of the most serious crimes that can be committed. Unlike murder, it requires a specific intent to kill.
[1](2010) 30 VR 610 (‘Hudson’).
The prosecution argued that this particular offence of attempted murder is ‘at or approaching the worst-case example of this offence’.[2] Mr Glynn, who appeared with Mr Sprague for the prosecution, outlined the matters upon which he relied in support of that contention. These were, in brief:
[2]Prosecution outline [4].
i. the motivation for your crime, to be found in your jealous desire to control Ms Rakipi and deal with a man suspected of having a romantic relationship with her:
ii. the degree of premeditation preceding your crime which, at the least, arose after you came upon Mr Grant potentially by chance that day;
iii. the determined nature of your attempt which only ceased when you believed him dead, or ran out of ammunition, or became aware you were being watched, or all of the above;
iv. the horrifying effects of your offending on Mr Grant, who, as well as suffering the trauma of the incident itself, has been left with severe and permanent disabilities;
v. the fact the offending was carried out in front of your young son, whom you had a duty to protect from harm, and your niece;
vi. the fact the offending was carried out in front of your former wife;
vii. the public locale of the offending, where it would be expected that many people would witness your crime and be affected by it;
viii. the lack of any remorse.
Although Mr Sala was content to describe your offending as ‘terribly serious’,[3] he took issue with the Crown’s characterisation of your crime as being ‘at or approaching the worst case example’, describing this as being ‘wildly inaccurate’.[4] He submitted that your offending ‘fits squarely in the middle’.[5]
[3]Defence outline [9] and transcript 31.
[4]Transcript 25.
[5]Ibid 28.
I do not agree with your counsel. Rather, I accept the prosecution characterisation of the seriousness of your crime of attempted murder, for the reasons advanced by Mr Glynn. Of course, the authorities make it clear that there is little utility in seeking to place individual offences into particular categories or classes of seriousness.[6] The requirement, of course, is for me to take into account all of the circumstances of your crimes in determining the nature and gravity of the offences, one of the matters to which I am required by law to have regard.[7] Having done so, I am satisfied that your crime is 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.
[6]DPP v Weybury (2018) 84 MVR 153; Lee v The Queen [2018] VSCA 343.
[7]Sentencing Act 1991 s 5(2)(c).
Furthermore, your moral culpability for your offending constituted by the attempted murder is very high.
Turning to the prohibited person charge, the authorities would suggest that the objective gravity of an offence may be significantly influenced by whether or not the evidence would warrant a conclusion that the firearm was in possession for the purpose of criminal activity.[8] For those purposes, I should not have regard to your use of the firearm to shoot Mr Grant. The objective seriousness, of course, can only be determined by a consideration of all of the circumstances. In explanation for your possession of the handgun, whilst not saying how long you had possessed it, you said:
I had it in my pocket. I had it in my pocket…Like, most of the time I just carry it with me. This is the reason I was carrying it with me because…I’ve heard about him – I thought maybe my ex tries to make – he wants to kill me or something…so I used to carry it with me.[9]
[8]Berichon v The Queen (2013) 40 VR 490.
[9]Police interview QQ 275-277.
You said you pulled the pistol out of your pocket at the scene at the commencement of the incident. You said that there were six rounds in the magazine and one ‘inside’, by which I take you to mean in the chamber of the weapon.
I do not accept that fear of Mr Grant had any part to play in your acquisition of the firearm, but nor do I act on the basis that you acquired it for the purpose of shooting him. The fact is, in circumstances where you had, in the recent past, been imprisoned for a range of offences including being in possession of a loaded handgun which was found in a shed at your property, your possession of the loaded handgun in the present case before you chose to use it was a serious enough instance of the crime in question. That you saw fit to go about in 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.
Victim impact statements
Seven victim impact statements were filed in Court and tendered as Exhibit B. One of these statements, namely, that of a close friend of Mr Grant, Snjezana Peraica, was read aloud by its author. The other statements were not read aloud in Court, but of course, I take them into account in the same way as if they had been, noting that the prosecution drew some brief inadmissible portions of two of the statements to my attention as material which was not relied on by the prosecution.
The statement of Ms Peraica concerning the substantial impact on her of what had been done to her friend Mr Grant by you is instructive as to how far afield the harmful effects of a crime may be felt. In addition to those victims who made victim impact statements, your crime was carried out in full view of many bystanders and passers-by. It is perfectly obvious that many if not all of these would have been very much affected by the extravagant acts of violence in which you engaged on that day in that very public area. I take that into account as one of the significant features of your crime.
Turning more specifically to the victim impact statements, Mr Grant’s statement makes for quite confronting reading. At its commencement, Mr Grant summarises the impediments from which he now suffers as a result of the attack upon him. He says:
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 on 7 May 2022.
Many of the basic requirements of daily living including toileting, showering, dressing, cooking, and moving around in the community, are now very difficult or impossible for Mr Grant to achieve without the assistance of others, and will be for the rest of his life. He cannot drive or catch public transport. He can no longer pursue his career as a personal trainer, meaning that he has suffered a great deal financially. His life is ruled by medical, psychological and other appointments, and the ongoing pain and anxiety from which he suffers. He reveals the devastation a previously very independent and fun-loving person feels at being now largely dependent on others. He speaks also of the further trauma he suffered as a result of being required to give evidence in your trial, and of being called a liar by your counsel, which of course, only occurred on your instructions. He feels, with good reason, that his life has been destroyed.
From my observations of Mr Grant in Court during the trial and during the plea hearing, and from what I was further informed by Mr Glynn, my understanding is that Mr Grant has little feeling or movement below the waist, including his legs. He cannot walk normally, but through dint of the considerable strength of his upper body and the force of his personality, he is able to move around slowly with the use of crutches. On that latter score, the victim impact statement of Ms Peraica to which I earlier referred illustrates the extraordinary dedication and courage Mr Grant has shown in pursuit of his rehabilitation from an early stage in the process. He has not been one to dwell on his problems, but rather, has done everything in his power to achieve the best outcome he can.
Having said that, you have caused him distressing, widespread, permanent, and life-changing effects.
I should also say, in respect of Mr Grant, that in giving his evidence in the trial, during which entirely false accusations were levelled at him by Mr Sala, based on your instructions, that he, not you, was the one who initiated the violence preceding the shooting, he maintained an admirable degree of control and dignity. I commend him for this.
The young son of you and Ms Rakipi, a very courageous and intelligent child who witnessed at close hand the commencement of your attack upon Mr Grant, describes what occurred on what he calls the scariest day of his life. The events shattered his life, he says. His sleep is beset by nightmares of the shooting of his friend Mr Grant, and he is distressed to see his mother crying. He also makes mention of the trauma of having to give evidence in your trial. He felt attacked and scared.
Flora Rakipi set out in some detail the very serious impact that your crime has had upon her. She describes 7 May 2022 as a horrific day for her, which has left her with feelings which, after a year and a half, she cannot find the words to articulate. She suffers from crippling anxiety and panic attacks and debilitating episodes of depression. She has been left with a constant fear of being in public places and being attacked. In particular, she fears a future attack by you or someone on your behalf upon any man she may care to be with in public, and struggles with what she describes as your jealous rage and control over her. She describes the state of fear you have left her and your son in as being worse than the incarceration you suffer.
To highlight some of the contents of the victim impact statements to which I have referred is not to lessen the impact of the other victim impact statements. I will take the profound loss and damage suffered by these victims of your crime into account in the appropriate way in arriving at the sentence which I pass upon you.
Remorse
Whilst in the written outline he filed, Mr Sala conceded that there was no evidence of remorse,[10] he submitted before me that in the report of Dr Cunningham, ‘he does identify levels of remorse’.[11] When pressed on what he was relying upon in support of that contention, Mr Sala pointed to two sentences in Dr Cunningham’s report, namely, ‘He was upset that his son witnessed the event. He stated that everyone has lost from his actions’.[12]
[10]Defence outline [14].
[11]Transcript 14-15.
[12]Exhibit 2 page 2.
In no way could the contents of those sentences be relied upon as an indication by you of any remorse for your offending. As I made clear to Mr Sala during the plea hearing, to my mind, there is not the slightest evidence of remorse on your part. Far from it. Not only have you continued to protest your innocence, as is your right, but the contents of the psychological report indicate that as recently as 17 and 20 November 2023, almost a month after your conviction, you continued to denigrate both Ms Rakipi and Mr Grant by making gratuitous accusations against them. You present as entirely unrepentant.
The absence of remorse, I should make clear, is not a circumstance of aggravation, but represents the concerning absence even now, 18 months after the events in question, of something which might have been a mitigating feature.
In respect of the charge of being a prohibited person in possession of a firearm, you are entitled to the benefit of your plea of guilty. There is no question that you are due the full utilitarian benefit of that plea, but in respect of the subjective aspects, I do not think it would be appropriate to infer from your plea of guilty any aspect of remorse or willingness to facilitate the course of justice or accept responsibility. You volunteered your possession of this firearm during the interview, when you advanced your fanciful account of having acquired the gun because you were fearful of Mr Grant. You clearly had nowhere to turn where the prohibited person charge was concerned, and your plea of guilty was no more than an acknowledgment of that fact.
Specific deterrence and prospects of rehabilitation
The prosecution and the defence maintained opposing positions on the question of your prospects of rehabilitation and the importance of specific deterrence in sentencing you. The Crown submitted that whilst you may not necessarily pose a high risk of reoffending generally, you pose a very high risk of reoffending against Ms Rakipi or persons associated with her, as evidenced by your offending here, and your prior convictions. As long as you continue to harbour the attitudes towards your ex-wife and the disregard for human life evident from the current offending, your rehabilitative prospects will be poor. Further, the prosecution submitted that specific deterrence is an important sentencing factor in your case.
On the other hand, Mr Sala on your behalf submitted that your prospects of rehabilitation are good. You have a limited criminal history and no history of alcohol or drug abuse. You have a solid work history and have led a pro-social life prior to these events. The current offending, and your prior convictions, all revolve around a single issue, namely, your difficulty coming to terms with the break-up of your marriage, rather than there being, as there often is with offenders, a history of long-term offending. In addition, Mr Sala pointed to the number of courses of varying types you have completed since being in prison.
In respect of specific deterrence, whilst acknowledging that specific deterrence will have a significant part to play in sentence, Ms Sala submitted that it is not especially important in this case.
In my view, the submissions of the prosecution in respect of your rehabilitative prospects are correct. Although you have a limited criminal history, it is a very significant one. Taken in conjunction with the current offending, and the very negative feelings towards Ms Rakipi you still hold, as evidenced by the report of Dr Cunningham, the indications are that you have entirely failed to come to terms with the break-up of your marriage, and to accept that your former wife is free to live life, making her own decisions about whom she chooses to spend time with. There is no reason to think that the anger and resentment which was at the heart of your prior offending against Ms Rakipi and Mr Grant, and which boiled over to a murderous rage when you attempted to murder Mr Grant 18 months ago, has dissipated. As long as you hold onto these negative feelings, and believe that you should be entitled to wield control over your former partner, you will continue to present a danger to her and to anyone with whom she might associate.
Mr Sala submitted that with the lengthy sentence of imprisonment which he conceded you must receive, the issue of your family separation ‘will be well digested’. That remains to be seen. Thus far, you have shown no willingness to move on. Whether you are able to do so in time will be a matter for you to determine, and, in due course, for the authorities to assess.
Certainly as things stand at the moment, bearing in mind the complete absence of remorse or regret on your part for your actions which almost led to the death of Mr Grant, and the fact that you have continued to hold onto the negative and troubling feelings at the heart of your offending, you remain a dangerous person, and will for some time to come.
Your prospects of rehabilitation, as I would assess them now, are poor.
As for specific deterrence, I believe it is an important sentencing consideration in your case. You must be personally deterred from any repetition of the violent and outrageous criminal behaviour which brought you before the Court on this occasion.
Serious offender provisions and protection of the community
Because of your convictions for making threats to kill, you are required to be sentenced as a serious violent offender for the charge of attempted murder.
Section 6D of the Sentencing Act 1991 (‘the Act’) dictates that in sentencing you on this charge, I am required to regard protection of the community from you as the principal purpose for which the sentence is imposed. I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances. I note that quite properly, the Crown do not seek the imposition of a disproportionate sentence.
Section 6E of the Act mandates the cumulation of sentences in certain circumstances. I can indicate that the sentence I impose on the charge of attempted murder will be the base sentence. I will cumulate what I consider to be an appropriate portion of the sentence on the other charge on the base sentence.
Aside from the requirements of s 6D, there was conjecture before me as to the importance of community protection as a sentencing purpose in your case. The prosecution submitted that quite aside from that provision, community protection would be an important consideration. Mr Sala took a different approach. He submitted that in light of your lack of a lengthy criminal history, and the fact that the current offending was focused and targeted upon a particular person and issue, there is no need to protect the community more generally.
I do not agree. Even were it not required of me by s 6D of the Act to regard protection of the community from you as the principal purpose for which sentence is to be imposed upon you, I would have considered it to be a very important matter. You carried out acts of extravagant and dangerous violence in a public place in full view of many members of the public. Your primary victim, your son, and your former wife, were themselves members of the community. Your violent offending represented a substantial danger to the community. The fact that you were willing to go to such extreme lengths for so little reason is worrying, and raises the concern that you may see fit to do something similar in future, again endangering the safety of the community. You currently pose a real and substantial threat to the safety of the community. The sentence I pass upon you must be designed, as far as possible, to protect the community from any future acts of violence by you.
Current sentencing practices
One of the matters to which I am required to have regard is current sentencing practices.[13] In order to assist in this respect, the prosecution, in its written outline, drew a number of decisions of the Court of Appeal and sentences of judges of this Court to my attention. All concerned cases of attempted murder, and were selected on the basis, amongst other things, of being serious cases of attempted murder, into which category, as I have said, the prosecution submitted this case would fall. The prosecution submitted no more than that the cases are ‘somewhat comparable or otherwise relevant’. Although Mr Sala did not specifically take issue with the appropriateness of the selection of cases, he seemingly argued that the attempted murder committed by you is less serious in a number of respects than some of those instances included in the cases. The prosecution, on the other hand, took issue with that, submitting that this case may be considered to be more serious, in its own way, that any of the other cases.
[13]The Act, s 5(2)(b).
Having said that, the prosecution correctly made the point that it is well established that previous sentences are not precedents which must be followed or distinguished, and nor are the upper or lower limits of sentencing in any particular case fixed by previous sentences.[14]
[14]DPP v Dalgliesh (2017) 262 CLR 428; R v Kilic (2016) 259 CLR 256; DPP v OJA (2007) 172 A Crim R 181 [30]-[31].
Mr Sala provided, for my consideration, the most recent Sentencing Snapshot for the crime of attempted murder.[15] During the period in question, which is almost two decades distant, 21 people were sentenced for the crime of attempted murder. Of these, 18 received custodial sentences, and the other three were placed on supervision orders or hospital security orders. Of the 18 imprisoned, the sentences for attempted murder ranged from 6 years to 18 years.[16] As well as being quite old and covering only a fairly small number of cases, the data revealed by the Snapshot throws no light on what mitigating factors may have been relied upon in individual cases, including whether the case was a plea of guilty or not guilty.
[15]No 21: Sentencing trends for attempted murder in the higher courts of Victoria, 2001-02 to 2005-06. Sentencing Advisory Council.
[16]It would seem that this sentence was the subject of appeal in The Queen v McIntosh [2005] VSCA 106 (‘McIntosh’). The offender was sentenced to 18 years’ imprisonment on each of the two charges of attempted murder to which he had pleaded guilty, along with a charge of armed robbery. Those sentences were reduced to 16 years, for reasons of totality, notwithstanding the fact that the sentence of 18 years for each charge was held to be within the available range.
In Hudson, a case in which the Director of Public Prosecutions successfully appealed against the manifest inadequacy of two sentences passed for crimes of attempted murder, the Court noted the then somewhat dated nature of the above statistics, and the limited assistance they would provide as a guide to the appropriate sentencing range.[17] That is even more the case now, 13 years on.
I have had regard to the material provided to the Court in illuminating current sentencing practices for the crime of attempted murder. I have also considered sentences passed in this Court for attempted murder in many cases not specifically referred to before me. In his submissions before me, Mr Sala was at pains to urge me to impose a sentence which was ‘orthodox’, and not going outside the range as indicated by current sentencing practices.
I make it clear that in arriving at the appropriate sentence for you, I have kept current sentencing practices firmly in mind. Those practices show a wide variety of sentences have been imposed for this crime, reflecting the great variation in the objective seriousness of offences, and the extent and quality of mitigating features. I have not sought to exceed or go beyond the range indicated by those practices. The fact that the sentence I will pass on you will, as far as I am able to ascertain, exceed any sentence previously imposed on an offender for attempted murder in this State, with the exception of the sentences imposed at first instance in McIntosh, is a reflection of the considerable objective seriousness of your crime, the terrible and permanent injuries sustained by your victim Mr Grant, and the almost total absence of mitigating features in your case.
As for the crime of being a prohibited person in possession of a firearm, there is no applicable Sentencing Snapshot, but I have had regard to such material as is available to illuminate sentencing practices for this offence also. I take those practices into account.
Cumulation, totality, proportionality
The sentence I pass for attempted murder will have no component referable to your status, when you used the weapon, as a prohibited person. The offence of being a prohibited person possessing a firearm to which you pleaded guilty is an entirely separate offence involving separate criminality for which you must be sentenced. The charge is of an offence committed on the same day as the attempted murder, and covers your possession of that loaded firearm during that day up to the time you used it to shoot Mr Grant. As I said, it is itself a serious crime, especially in light of your relevant prior conviction for possession of a handgun and the obvious dangerousness of a person going about in the community armed with a loaded handgun. It is necessary that there be an appropriate degree of cumulation between the sentence for that offence and the sentence for the crime of attempted murder reflecting the separate criminality involved. In deciding upon the degree of cumulation, I have had regard to the principle of totality. Having arrived at the sentences for the individual crimes upon which you are to be sentenced, and considered the issue of cumulation, I have arrived at a total effective sentence and non-parole period which I consider to be just and appropriate in light of the overall circumstances, and to be proportionate to the gravity of your offending behaviour.
Important sentencing purposes
As indicated already, I am required to regard protection of the community as being the principal purpose for which sentence is to be imposed upon you. As I said earlier, this is a case in which that statutorily dictated requirement sits very comfortably with the conclusion I would in any event have reached in your case. As I said, you were at the time of your offending, remain now, and will remain for an indeterminate time into the future a real danger to the community. I take that strongly into account.
I have already spoken, too, of the need for your sentence to serve the purpose of specific deterrence, that is, deterring you from any future episodes of violence.
Other very important sentencing purposes are just punishment, denunciation and general deterrence.
You must be punished in a way which adequately reflects the very substantial seriousness of your offending, and represents an appropriate response to it. For reasons of anger, resentment, jealousy and probably also a desire to maintain control over your former wife, you carried out a shocking and senseless public attack upon an entirely innocent man in full view of your former wife, your 10 year old son and many others. The very idea of an angry and embittered man chasing his quarry around in circles in a public reserve bordering a busy main road in a suburb of Melbourne and firing a large number of shots from a pistol intending to kill him is quite appalling. You failed to achieve your aim, but not for want of trying. You have left Mr Grant with terrible injuries which will blight his life forever and reduce the quality of that life. This was a terrible crime, as your counsel fairly conceded, and is deserving of condign punishment.
As far as denunciation is concerned, the sentence of this Court must unambiguously demonstrate this Court’s condemnation and abhorrence on behalf of the community of the type of violent criminality in which you engaged in this case, and the dangerous and troubling motivation which was at its heart.
Turning to general deterrence, male violence towards former intimate partners, or towards new friends of former intimate partners, is a depressingly frequent occurrence in our society, and is to be deplored and discouraged. The sentence I pass on you must be such as to clearly bring it home to any male, or any person, who would seek to wreak violent retribution against another person motivated by a refusal to accept or deal with the end of a relationship, that such conduct will be met with very strong punishment.
As for rehabilitation, it rarely ceases to have any significance, but in cases such as this, must make way for more important sentencing purposes. Having said that, the non-parole period which I will fix, relative to the head sentence, will hold out to you the prospect of a significant period of rehabilitation in the community under the supervision of the parole board should you end up being considered worthy of a grant of parole.
I have turned my mind to the proportion of the head sentence represented by the non-parole period I will fix. Whilst it may represent a higher proportion than is sometimes the case, it will not be out of kilter with the lengths of non-parole periods commonly fixed for head sentences of the magnitude required here.
The assessment of the length of a non-parole period will depend on all of the circumstances of each case. In this case, I will fix as the non-parole period the shortest term of imprisonment which, in my view, would meet the needs of justice.
Sentence
Abil Malovski, for the attempted murder of Steven Grant, you are sentenced to be imprisoned for 18 years.
For being a prohibited person in possession of a firearm, you are sentenced to be imprisoned for 5 years.
The sentence on the charge of attempted murder is the base sentence.
I direct that 2 years of the sentence imposed on the charge of being a prohibited person in possession of a firearm be served cumulatively upon the base sentence.
The total effective sentence is therefore imprisonment for a period of 20 years.
I fix a period of 15 years during which you will not be eligible to be released on parole.
I declare a period of 583 days up to and including yesterday, 12 December 2023, as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.
I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty to the charge of being a prohibited person in possession of a firearm, I would have imposed a sentence of 6 years’ imprisonment on that charge.
You have been sentenced as a serious violent offender for a relevant offence, namely, the charge of attempted murder. I direct that the fact that you have been sentenced as a serious violent offender on that charge be entered in the records of the Court.
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