R v Malkic
[2015] VSC 154
•16 April 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0156
| THE QUEEN |
| v |
| FEDA MALKIC |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 April 2015 |
DATE OF SENTENCE: | 16 April 2015 |
CASE MAY BE CITED AS: | R v Malkic |
MEDIUM NEUTRAL CITATION: | [2015] VSC 154 |
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CRIMINAL LAW – Sentence – Intentionally cause serious injury – use of unregistered general category handgun – possess unregistered general category handgun – possessing a prohibited weapon, namely a taser – Moral culpability diminished by pre-existing post-traumatic stress disorder – depression –time in custody will be ‘somewhat more onerous’ due to disorders – good prospects for rehabilitation – no priors – late plea of guilty – little or no remorse – convicted on each charge and sentenced to a total effective sentence of six years six months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | R. Gibson | OPP |
| For the Accused | P. McQuillan | Theo Magazis and Associates |
HIS HONOUR:
In March 2014, Ashok Alahanathan tried to enter his apartment building in Royal Parade, Parkville. He lived there with his girlfriend. You followed him into a foyer area between two glass doors at the entrance to that building. He observed your presence and attempted to evade you. You were wearing a balaclava and you pointed a five-shot .38 Smith & Wesson revolver at Mr Alahanathan. You then lifted the balaclava and fired a shot, striking your victim in the arm. He fell to the ground in a ball and you shot him again, this time to the abdomen. Both shots were fired from about one metre. It need hardly to be said that Mr Alahanathan was very lucky to survive. He suffered a fractured right humerus, requiring internal fixation. Most but not all of the shrapnel fragments in the arm could be removed. The bullet from the shot fired to the abdomen lodged in his body, but did not enter the abdominal cavity, nor did it damage any major organs. Luckily, it does not appear that Mr Alahanathan suffered any permanent injury. This was a vicious attack on an unarmed man in a populous area.
There is a complex background to your offending and I shall endeavour to summarise it. In March 2014, you had known Mr Alahanathan for about a year. He was a methylamphetamine dealer and you met him in that capacity. Over time you became friends. In late 2013, a group of men, alleged to be members of a motorcycle gang, were attempting to intimidate Mr Alahanathan. Various threats were made to him. You offered to help him by engaging some acquaintances of yours, also motorcycle gang members, to persuade the other men to back off. Apparently they carried out these instructions.
As a consequence, both you and your motorcycle gang acquaintances regarded Mr Alahanathan as indebted to you all. You demanded money from him and drugs to be supplied on credit. He declined to pay or to extend that credit and a conflict developed. It seems that he had spread the word that he would get in first if there was to be any conflict. In a video recorded interview, Mr Alahanathan accepted that he “had put the word out there that I was going to come and get them” (Q 80). I quote:
They were living in fear, they knew that I had every single one of their details.
…
I had all their details and I would be seen as a threat.(Q 81).
He said he sent messages back to them saying he has “big plans” for them. The “them” Mr Alahanathan was referring to included you and your motorcycle gang acquaintances.
In evidence before me, you asserted that you had been told by a female friend that Mr Alahanathan had kidnapped her, tortured her and extracted from her your address. You said she told you that he intended to kill you. This was, you said, seven to nine days before you shot him. On balance I am prepared to accept this evidence as truthful and accept that this was your victim’s way of putting “the word out that (he) was going to get (you)”. In discussion with your counsel I said that I considered your actions to be a pre-emptive strike. Mr McQuillan, sensibly in my view, did not quibble with that characterisation, but instead directed me to what he submitted was a longstanding post-traumatic stress disorder suffered by you.
I accept that you were unsettled by Mr Alahanathan’s threats and believed them to be genuine. That provides an explanation as to why, at the age of 40 and with no prior convictions, you determined to offend in this very serious manner. It cannot excuse it. This Court cannot countenance citizens taking the law upon themselves. Anarchy would result. We have a strong and dedicated police force who are tasked with protecting the community from the sort of threat posed by Mr Alahanathan. You elected not to seek their protection, but to deal with him yourself. As I have said, the Courts simply cannot accept or excuse this type of conduct.
The threat posed by Mr Alahanathan however is relevant in another way to the sentence I shall impose shortly. You were born and raised in Sarajevo. From August 1992 to August 1994, that is, between the ages of 18 to 20, you were a special forces officer in the Bosnia-Herzegovina police force. In effect, you were a soldier in the Bosnian war. For a time you were a prisoner in that war . In March 1994, you were examined by a psychologist and a report was prepared for a neuropsychiatrist. You were quite psychologically disturbed, and it seemed that some form of post-traumatic stress disorder was then diagnosed by the neuropsychiatrist. Professor Andrew Carroll, a consultant psychiatrist, examined you recently at your solicitor’s request. He was provided with relevant documentation including your 1994 assessment. He noted your previous diagnosis and took a history from you of its subsequent course. Dr Carroll thought that it was clear that you had suffered with “full blown post-traumatic stress disorder for some time, possibly several years” after the civil war. He thought you had retained some residual symptoms over the years, and in response to your belief that Mr Alahanathan intended to kill you, you suffered a relapse of the PTSD symptoms. He opines that you became hypervigilant, socially avoidant and constantly anxious.
I have had reservations about Dr Carroll’s opinion. In part, it is based on a history that you gave him which included assertions by you that are manifestly inconsistent with your plea of guilty to the charge of intentionally causing serious injury. Having said that, in some important respects, his diagnosis of a PTSD relapse is supported by independent evidence. Your life was threatened and you do have a history of a serious post-traumatic stress disorder. On balance, I accept Dr Carroll’s opinion that your PTSD would have had at least “a moderate impact in terms of your mental capacity and your ability to exercise judgment and appropriate control over behaviours”. I accept that this was a difficult time of your life and that your judgment, at least to some extent, was impaired by your mental state. It follows that I am prepared to diminish to a modest extent my assessment of your moral culpability. I say to a modest extent because whilst I accept that your hypervigilance and anxiety may have played a part in your decision to shoot Mr Alahanathan, in my view it played no role in your actions during the shooting itself. You hid in wait for your prey. You donned a balaclava. You shot an unarmed man. When he went to ground you shot him again. There is not a hint of hypervigilance or rapid hair trigger response to your actions. To the extent that Associate Professor Carroll opines otherwise, I do not accept it and I consider that that part of his opinion is largely based on your inaccurate history to him.
You have been imprisoned for over a year now and are, according to your psychiatrist, currently coping well with prison life. You suffer from depression, however, which is only in partial remission after medication. Your PTSD symptoms are largely in remission. Dr Carroll is of the view that your imprisonment is “somewhat more onerous” than would be the case for a person with no mental health difficulties. I accept this and shall give you a modest sentencing benefit for it.
Before I turn to your personal circumstances, I should turn to the other offending on the indictment. In addition to intentionally causing serious injury to Alahanathan, you have also pleaded guilty to using an unregistered general category hand gun – a .38 Smith & Wesson five-shot revolver. This is a serious offence, but I regard the relevant criminality as almost totally subsumed by the intentionally causing serious injury offence and I will make the sentence on this charge wholly concurrent with the intentionally causing serious injury offence.
On 19 March 2014 – that is eight days after the Parkville shooting – you were apprehended in Chapel Street, Prahran. At the time of your arrest, you were in possession of the same loaded five-shot .38 calibre Smith & Wesson revolver. This was tucked into your pants. This constitutes charge 3 on the indictment. You were also in possession of a taser gun. You have consented to this Court dealing with this related summary offence of possession of a prohibited weapon.
Whilst these latter offences committed on 19 March are obviously not as serious as your earlier offending, they are not trivial by any means. You were in a popular shopping area, carrying both a loaded pistol and a taser gun. Whilst I accept that you may still have harboured some fears as to your physical safety, the community cannot tolerate this type of conduct.
Background
As I indicated earlier, you were raised in Sarajevo. You come from an educated professional family and you were an only child. You came to Australia after your war service. You, by that stage, had served for some years in the Bosnian police force. With a Bosnian father and a Serbian mother, there was little future for you in Sarajevo. You have an aptitude for electrical systems, particularly computer technology. You have a degree in Information Systems/Bachelor of Business from Victoria University. You graduated in 2000 when you were in your mid-20s. Since that time, you have developed what is, I am told, a reasonably successful small business installing and maintaining various types of electrical systems. You were employed in the field after graduating and you have now run your business for about six years. You have two employees who, I am told, are still running the business for you.
You were married in 2000 and a son was born two years later. The marriage broke down in 2006 and your former wife and son moved interstate. You have had irregular contact with your now 13-year-old son, although it appears you have financially supported him. You have pursued a new relationship for the last seven years and your partner, Daniella, was present throughout your plea. You have supported her and her three children.
Mr McQuillan, on your behalf, tendered a number of character references. They speak of a generous man with drive and ambition. Many express shock at your current predicament. It seems clear from the summary of facts in the amended plea opening that by the time of your offending, you were moving in criminal circles. The background to your offending demonstrates that, if you were not actively involved in the drug trafficking world, you were on its periphery (see paragraph [2] of the amended plea opening). One of your referees referred to a decision you had made to turn to drugs.
I turn now to sentencing principles.
I accept that you are an intelligent and accomplished man. I assess your prospects for rehabilitation as extremely good. At 40, you have no prior convictions, although, as I mentioned a moment ago, you were keeping undesirable company prior to your offending. Assuming you are intelligent enough to avoid engaging with this company upon your release, there is no reason why you should not return to society as a productive and decent community member.
I consider this to be a serious example of the offence of intentionally causing serious injury. It was planned and implemented with some precision. There was nothing spontaneous or panicked about your actions on 11 March. As I have said, I shall moderate the sentence I shall impose to some extent to reflect your mental state at the time you planned and implemented your criminal actions. I shall also moderate it a little to reflect the additional burden of imprisonment given your current depressive illness.
You are entitled to a sentencing benefit for your plea of guilty. It was not an early plea. You ran a contested committal and an offer to plead guilty to intentionally causing serious injury was not made until after that committal. Nevertheless you have saved the community the inconvenience and expense of a criminal trial and you are entitled to a benefit for that. I am unable to infer any genuine remorse from your plea or from any other source. Your assertion of self-defence to your psychiatrist points away from a finding of remorse.
Whilst a few moments ago I indicated that I will moderate your sentence to reflect psychiatric factors, this remains very serious offending. The aspects of general deterrence, punishment and denunciation must be given real weight in this sentencing exercise. Given your lack of prior convictions I do not propose to give the aspect of specific deterrence any real weight in that exercise.
Stand up please Mr Malkic.
1. On charge 1, intentionally causing serious injury, I sentence you to 6 years’ imprisonment;
2. On charge 2, using an unregistered general category handgun, I sentence you to 12 months’ imprisonment;
3. On charge 3, possessing an unregistered general category handgun, I sentence you to 12 months’ imprisonment;
4. On charge 4, possessing a prohibited weapon namely a taser without an exemption or approval, I sentence you to 4 months’ imprisonment.
I make the following orders for cumulation:
1. I declare the sentence imposed on charge 1 to be the base sentence;
2. I order that 6 months of the sentence on charge 3 be served cumulatively upon the base sentence;
3. I order that the sentences imposed on charges 2 and 4 be served concurrently with each other and concurrently with the sentences imposed on charges 1 and 3.
That means the total effective maximum sentence is 6 years and 6 months’ imprisonment.
I declare that you must serve 4 years and 3 months before becoming eligible for parole.
I declare that you have served 394 days inclusive of today in presentence detention.
Pursuant to s 6AAA of the Sentencing Act 1990 I declare that, but for your plea of guilty, I would have sentenced you to a total effective sentence of 7 years 9 months with a minimum before parole eligibility of 5 years 3 months.
I will make the forfeiture and disposal orders by consent.
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