JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	4 November 2016
DATE OF SENTENCE:	1 December 2016
CASE MAY BE CITED AS:	R v Rapovski
MEDIUM NEUTRAL CITATION:	[2016] VSC 706

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CRIMINAL LAW – Sentence – Manslaughter by unlawful and dangerous act – Accused aged 20, whilst under the influence of drugs, accidentally shot friend in face with sawn-off shotgun, killing him instantly – Unclear as to how discharge occurred – Accused fled scene without rendering assistance – Accused sought to flee Australia the next day – Early plea of guilty – Remorse – Youth – Limited criminal history – Good prospects of rehabilitation – Sentence of eight years’ imprisonment with non-parole period of five years – But for plea of guilty, sentence of 11 years’ imprisonment with non-parole period of eight years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D Piekusis	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr S Johns with Mr A Purcell	Theo Magazis & Associates

HIS HONOUR:

Overview

Guns, drugs and stupidity do not mix. Never have. Never will. If proof were needed, it can be found, yet again, in the tragic events of a Friday night in March 2016 in a motel room in Kingsbury.

On that evening, four young people were together in the one room taking drugs and talking. They also posed like would-be gangsters for photographs with a sawn-off double-barrel shotgun. The gun was loaded. It belonged to Albert Rapovski, a 20-year-old affected by too many drugs and a breathtaking lack of judgment. While posing for another photograph, Mr Rapovski pointed the gun, at close range, at the head of his 22-year-old friend Mahamd Hassan. The gun discharged accidentally. Mr Hassan was shot in the face and neck. He was killed instantly. Mr Rapovski screamed. In a panic, he then gathered his belongings and fled the motel with Michelle Ilievski, who had also handled the gun and taken some of the photographs. The fourth person in the room, Ali Amery, also left.

The next day, Mr Rapovski was arrested at Melbourne Airport attempting to flee the country for Macedonia. He was charged with the manslaughter of Mr Hassan and has remained in custody ever since.

He has pleaded guilty and now falls to be sentenced for killing his friend.

Background and circumstances giving rise to the offence

Introduction

Before passing sentence, I shall turn to a more detailed summary of the background and circumstances giving rise to the offence. They were spelt out in the prosecution opening, which was read to the Court by Ms Piekusis, who appeared for the Director on the plea.

Mr Rapovski and Mr Hassan

Mr Rapovski was born on 26 December 1995. He is still only 20 years old.

Mr Hassan was born on 21 April 1993 and was only 22 when he died.

Both men were…

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 Rapovski

Details

AGLC: R v Rapovski [2016] VSC 706
Case: [2016] VSC 706
Decision Date: 1 December 2016

CaseChat Overview and Summary

The appellant, aged 20, was convicted of manslaughter by an unlawful and dangerous act. He was under the influence of drugs when he accidentally shot his friend in the face with a sawn-off shotgun, killing him instantly. The manner in which the discharge occurred was unclear, and the appellant fled the scene without providing any assistance to the victim. The following day, the appellant attempted to leave Australia. He entered a plea of guilty at an early stage, showing remorse for his actions. The appellant had a limited criminal history and appeared to have good prospects for rehabilitation. The court was tasked with determining an appropriate sentence that balanced the gravity of the offence with the mitigating factors.

The primary legal issue before the court was to determine an appropriate sentence for the appellant, taking into account the circumstances of the offence, the appellant’s age, his limited criminal history, his remorse, and his prospects for rehabilitation. The court also had to consider the impact of the appellant's early guilty plea on the sentence. The court had to weigh the need for punishment and deterrence against the appellant's potential for rehabilitation and the likelihood of reoffending.

The court found that the appellant's actions were reckless and dangerous, resulting in the death of his friend. However, it also acknowledged the appellant's early guilty plea, his remorse, and his potential for rehabilitation. The court imposed a sentence of eight years’ imprisonment with a non-parole period of five years. It noted that without the early guilty plea, the sentence would have been 11 years’ imprisonment with a non-parole period of eight years. The court considered that the sentence would provide adequate punishment and deterrence while also offering the appellant an opportunity for rehabilitation.

The court ordered that the appellant be imprisoned for a total of eight years, with a non-parole period of five years. The sentence reflects the gravity of the offence and the mitigating factors present in this case. The court emphasised the importance of the appellant's early guilty plea and his remorse in reducing the severity of the sentence. The court also highlighted the appellant's potential for rehabilitation and the need to balance this with the need for punishment and deterrence.

Orders