R v Malkic - [2015] VSC 154

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0156

THE QUEEN

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Malkic

Details

AGLC: R v Malkic [2015] VSC 154
Case: [2015] VSC 154
Decision Date: 16 April 2015

CaseChat Overview and Summary

In the case of R v Malkic, the defendant faced charges related to causing serious injury, possessing an unregistered firearm, and possessing a prohibited weapon. The matter was heard in the Supreme Court of Victoria. The defendant, Malkic, was found guilty on all counts and subsequently received a sentence. The court was tasked with determining an appropriate penalty that took into account the severity of the offences, the circumstances surrounding the defendant, and the principles of sentencing under Australian law.

The primary issues the court addressed were the gravity of the offences and the defendant's personal circumstances, including his mental health conditions and the lack of remorse shown. The court had to weigh the seriousness of the charges against the mitigating factors presented, including the defendant's pre-existing post-traumatic stress disorder and depression, his prospects for rehabilitation, and the absence of prior criminal convictions. The court also considered the defendant's late plea of guilty, which occurred just before the trial was set to commence.

The Supreme Court of Victoria, after careful deliberation, concluded that despite the mitigating factors, the offences warranted a substantial custodial sentence. The court determined that the defendant's mental health conditions did not absolve him of responsibility, but they did affect his moral culpability. The court found that the defendant's prospects for rehabilitation were promising, and while his time in custody would be more challenging due to his disorders, these factors did not negate the need for a significant punitive response. Consequently, the court imposed a total effective sentence of six years and six months’ imprisonment.

The final orders of the court mandated that the defendant serve this sentence, reflecting the balance between the need for punishment and the potential for rehabilitation.

Orders