R v Rapovski
[2016] VSC 706
•1 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0105
Between:
| THE QUEEN | |
| and | |
| ALBERT RAPOVSKI | Accused |
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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 part of a large group of friends who lived in the Darebin area.
Events preceding the shooting
On Saturday 20 February 2016, Mr Rapovski and Mr Hassan, along with a group of friends, spent the day together to celebrate another friend’s birthday. The group travelled to Little River to play a game of paintball shooting.
Afterwards, Mr Rapovski suggested that he would get his “real shotty”, referring to his recently-acquired shotgun, and that some of the group should go with him to Mr Hassan’s family’s rural property in Darraweit Guim. Mr Rapovski and Mr Hassan drove to the property with Salah Moslimani, Harley Dyson, Ali Amery and Memek Denis.
While there, the group drank alcohol to celebrate Mr Moslimani’s birthday. Mr Rapovski produced the same shotgun that, two weeks later, would kill Mr Hassan. He also had ammunition. The young men took turns to fire the gun at an old car on the property, which they videoed. A video of Mr Rapovski firing the gun showed that he did not appear to have a good understanding of how it operated. Further, he was not licenced or authorized to carry a firearm.
The day of the shooting
On Friday 5 March 2016, Mr Rapovski drove to the Parkside Inn Motel in Kingsbury, arriving at about 1:55 p.m. He booked a room for the night. He left the motel and then returned later with his friend Michelle Ilievski. While in the room, Mr Rapovski produced the shotgun, which he and Ms Ilievski played with for some time.
That evening, Mr Hassan visited his friend Nicholas De Clemente in Bundoora. Two other mutual friends, Mr Amery and Mr Dyson, were also present. The four of them planned to spend the evening in Mr De Clemente’s garage drinking. Mr De Clemente and Mr Hassan left to buy alcohol. Mr Hassan left his phone at the house so that the battery could be charged.
While Mr Hassan and Mr De Clemente were out, Mr Rapovski called Mr Hassan’s mobile phone at 8:50 p.m. Mr Dyson answered and put the phone on loudspeaker. Mr Rapovski told Mr Dyson and Mr Amery that he had a motel room in Bundoora, and invited them to visit him and have a few drinks. Mr Dyson and Mr Amery told Mr Rapovski that, when the other two returned, they would come and visit him.
Ultimately, only Mr Hassan and Mr Amery went to the motel. They were dropped off there by Mr Dyson at 9:51 p.m., while Mr De Clemente remained at home. They were greeted by Mr Rapovski, who appeared to be affected by drugs and was holding the shotgun.
The gun was passed around between the men. When asked by Mr Hassan, Mr Rapovski confirmed that the gun was loaded. Prophetically, Mr Hassan told him to unload the gun in case he accidentally shot someone. Mr Hassan then took hold of the gun and, with the assistance of Ms Ilievski, broke it open. Ms Ilievski removed two unfired cartridges (although there may be some doubt about whether this feat was actually achieved). Mr Rapovski had at least six shotgun cartridges in the motel room, some of which were on a bedside table.
After the gun was (thought to be) unloaded, Mr Hassan and Mr Amery played with it and took photographs of each other posing with it. The photographs were taken using the mobile telephones belonging to Mr Hassan, Mr Rapovski and Mr Amery.
After the photographs were taken, Mr Rapovski loaded the gun with at least one cartridge (again, there may be doubt about this fact). Mr Rapovski told Mr Hassan and Mr Amery not to worry, as the safety catch was on. He continued to play with the shotgun.
Mr Amery, Mr Hassan and Ms Ilievski all smoked cannabis that night. Mr Rapovski offered Mr Amery some “juice”, the colloquial term used for the drug 4-hydroxy-butanic acid or “GHB”. Mr Amery asked what juice is. Mr Hassan intervened and told Mr Amery not to worry about it.
Mr Rapovski was pacing back and forth in the room and clenching his fists, tensing his arms and shaking. He said that, if he did not stop moving, he was going to “blow up”, which is drug parlance for overdosing on GHB. Mr Hassan suggested that Mr Rapovski drink some water, but he said that water was not good for him.
Mr Rapovski, Mr Hassan and Mr Amery posed for photographs while sitting on the single bed. Ms Ilievski took the photographs using Mr Amery’s mobile phone. Mr Rapovski held the shotgun in his right hand, while Mr Amery sat to his right, and Mr Hassan laid on the bed to his left.
The shooting
Mr Rapovski then asked Mr Hassan to take a photograph of him with the shotgun. Mr Hassan agreed to do so and sat upright on the single bed, while Mr Amery sat next to him. Mr Rapovski stood close to Mr Hassan and pointed the shotgun at his head. Mr Hassan held up his mobile phone to take a photograph of Mr Rapovski. The gun discharged, the shot striking Mr Hassan’s face and neck, causing a massive wound. Mr Hassan slumped backwards on the bed. His right arm moved momentarily, but he was rendered unresponsive by the wound. Mr Rapovski screamed, “I shot Mo, I shot Mo.”
Later in these reasons, I shall return to the precise circumstances in which the gun discharged.
Events following the shooting
Immediately after the shooting, Mr Rapovski gathered some of his belongings and left the motel room with Ms Ilievski. He ran to his vehicle and drove out of the motel car park alone. He drove erratically along Plenty Road without his headlights on and at excessive speed. The manner in which he was driving prompted a member of the public to call triple-zero. Mr Rapovski disposed of the gun and his phone at an unknown location. His movements for the remainder of that evening are unknown. The gun has not been recovered.
At about 10:50 p.m. that night, police responded to a triple-zero call made by Ken Kang, the owner of the Parkside Inn Motel. Mr Kang reported hearing a loud bang and then locating a deceased male in Room 17 of the motel. On arrival at Room 17, police discovered Mr Hassan’s body slumped over a single bed. He had a significant wound to his face and there was no sign of life. There were no other persons in the room.
Police found two unfired 12-gauge shotgun cartridges under the double bed, a bong in the combined kitchenette/bathroom area on a bench and an unfired 12-gauge shotgun cartridge in the corridor some distance from the door to Room 17.
On Saturday 6 March 2016, at about 11:00 a.m., Mr Rapovski contacted a travel agent, Slavica Jankulovska, who was also a family friend. He told her that he needed to travel to Macedonia urgently because his grandmother was sick. He said that he needed to travel on his own that day.
Ms Jankulovska arranged his travel to Macedonia via an Emirates Airlines flight, departing Melbourne at 10:25 p.m. that evening. She contacted Mr Rapovski and advised him that she had made a reservation and that he would need to come to her house in Reservoir to pay $1,795 for the ticket. At about 4:00 p.m. that day, Mr Rapovski went to Ms Jankulovska’s house and paid her cash for the airfare. He again said that his grandmother was unwell and that he needed to leave Australia quickly.
Mr Rapovski then travelled to Melbourne International Airport, arriving by taxi at about 7:45 p.m. He went to the check-in counter and obtained a boarding pass for the flight. Upon entering the Customs area, he was detained by Border Force personnel in relation to the shooting death of Mr Hassan.
Arrest and interview
At about 9:15 p.m., Mr Rapovski was arrested by Homicide Squad detectives. He was taken to the City West Police complex to be interviewed.
Mr Rapovski made a partial “no comment” interview and answered some questions. Among other things, he said the following:
a) He said he “wasn’t in the right state of mind” to be interviewed.
b) He did not remember anything about what had happened as he was “drug fucked” and “blowing out”.
c) He remembered “everyone screaming, yelling”.
d) He was “pretty fucked” as he had had “[m]aybe over 30 mils of ‘juice’” (that is, GHB) and “maybe half a gram to a gram of ice”.
e) He had been using drugs for five to six years.
f) Mr Hassan was “a close friend”, “a really good mate”. He did not have a problem or fight with him and had known him for many years. They had gone to school together.
g) He could not recall the incident as he was on drugs and was still affected by them.
h) He had not slept for four days. He felt confused, stressed, sad, traumatised.
i) He left so quickly after it happened as he was scared and shocked and did not know what he was doing.
j) Mr Hassan was a mate, not a stranger.
k) Everyone was holding the shotgun.
l) He did not know if the gun was loaded. He could not say anything about the gun.
m) He did remember taking photos.
n) He said that “there was no intention for anyone to die. No intention for nothing”.
Mr Rapovski was charged and has remained in custody ever since.
Autopsy
An autopsy was performed on Mr Hassan’s body. He had suffered a single gunshot wound to the right side of his face, including injuries to his jaw, carotid artery and jugular vein. That gunshot wound caused his death.
Toxicological analysis of Mr Hassan’s blood and urine detected MDMA (or ecstasy) and cannabis in his system. No alcohol or GHB was detected.
Victim impact statements
I turn now to the victim impact statements.
Ms Piekusis read aloud two victim impact statements at the plea hearing – one by Mr Hassan’s brother Adam Hassan and one by his father Bachir Hassan, on behalf of his family.
Bachir Hassan described how he collapsed upon hearing the news that no father wants to hear. He felt hopeless and alone and could not bear the thought that he had just lost a second son. Also, the way his son died (not of natural causes) impacted him in a great way emotionally. He felt cheated and robbed of his son’s life. He also detailed how his son’s death has put a strain on his relationship with his wife, Sahar Hassan, who is also suffering a great deal from the loss of her son. Both parents are suffering from depression and anxiety.
Adam Hassan said that the loss of Mahamd brought back memories for his siblings of the loss of their brother Hilal Hassan. They are all in shock and disbelief and are hurt that, again, a loss has occurred in the family. He also described how the family he once knew had changed forever.
The victim impact statements are powerful and moving documents. I have had regard to their contents in considering sentence.
Nature and gravity of offence
I turn now to an assessment of the nature and gravity of the offence.
Circumstances of discharge
As part of this assessment, I return to the precise circumstances in which the gun was discharged.
The Crown case is that, knowing the gun was loaded and pointed at Mr Hassan, Mr Rapovski deliberately pulled one of the two triggers in the mistaken belief that it would not discharge.
As I mentioned earlier, the gun has not been recovered by police. However, through examination of video footage recording the use of the gun at the Darraweit Guim property, an inspection of the discharged cartridges left there, statements of witnesses and the photographs taken in the motel, the Director has ascertained that the shotgun had two triggers located in a front-to-back position inside the trigger guard, typical of an early model shotgun. The barrels, which were side-by-side, had been shortened significantly. The gun was chambered to fire 12-gauge cartridges.
Mr Johns, who appeared with Mr Purcell for Mr Rapovski, submitted that, while it was correct to say that Mr Rapovski caused the shotgun to be fired by depressing the trigger, the Crown could not exclude, as a reasonable possibility on the evidence before the Court, any of the following alternative scenarios:
a) that he inadvertently pulled the trigger without an intention to fire the gun; or
b) that he had a mistaken belief that the gun was not loaded when he deliberately pulled the trigger; or
c) that he had a mistaken belief that the safety mechanism was working when he deliberately pulled the trigger; or
d) a combination of any of the foregoing.
Mr Johns also submitted that it was unclear on the evidence whether the reason the shotgun was still loaded at the time it discharged was because Ms Ilievski and Mr Hassan did not remove all of the cartridges when they attempted to unload it or whether there was a subsequent re-loading of the shotgun by Mr Rapovski or perhaps Ms Ilievski.
Mr Johns did not submit that there was some sort of spontaneous discharge as a result of the gun being bumped or having a hair trigger or the like. In those circumstances, I shall put aside those particular scenarios.
In his second statement, Mr Amery could only speculate about who might have loaded the gun again after he believed it was unloaded by Ms Ilievski. He also said that Mr Rapovski pointed the gun at the roof and pulled the trigger, but “just a clicking noise came out of it”. The latter provides some support for the view that Mr Rapovski believed the gun to be unloaded or at least that it would not fire if the trigger was pulled in a particular way. But neither Ms Ilievski nor Mr Amery gives any evidence as to whether Mr Rapovski appeared to pull the trigger, whether deliberately or otherwise, when Mr Hassan was shot.
The photographs taken just prior to the shooting show Mr Rapovski holding the gun in one hand. That is a dangerous way to hold a shotgun, whether a sawn-off version or not, because, without support from a second hand, there is a risk that the weight of the gun will cause pressure to be applied to one or both of the triggers as the gun is moved.
Having considered the depositions and the submissions of counsel, I have come to the view that, while all of the scenarios suggested by both the Crown and the defence are possible, I simply am not satisfied of any of them beyond reasonable doubt. In those circumstances, I think I am bound to sentence on the least culpable version that is still consistent with guilt. There is no dispute that Mr Rapovski deliberately pointed the gun at Mr Hassan’s face. However, I cannot exclude the reasonable possibilities, first, that, at that time and in his drug-addled state, he did not know, or he had forgotten, that the gun was loaded and, second, that, in the course of pointing the gun at Mr Hassan, he pulled the trigger inadvertently and without any intention of firing it. Those are the facts on which I shall sentence.
Maximum penalty
Manslaughter is a common law offence the maximum penalty for which is set by statute at 20 years’ imprisonment.[1]
Loss of life in criminal and avoidable circumstances
[1]See s 5 of the Crimes Act 1958 (Vic).
The offence is serious, by definition. The life of a young man has been lost through criminally dangerous actions in circumstances which were entirely avoidable and should never have occurred. Further, when a child pre-deceases his or her parents, it reverses the natural order of things. Such a death must be all the more unbearable when the child is so young, as Mr Hassan was, and is taken as a result of criminal behaviour.
Manslaughter by unlawful and dangerous act
The form of manslaughter relied on is manslaughter by an unlawful and dangerous act. This means that, while Mr Rapovski did not have an intention to kill or cause really serious injury (or recklessness thereto) when he pressed the trigger, for otherwise it would be murder, his plea of guilty accepts that his conduct did involve an unlawful act (in that he was not licenced or authorized to carry a firearm and was under the influence of drugs when using it[2]) and that a reasonable person in his position would have realised that, in pointing the gun at Mr Hassan and behaving as he did, he was exposing him to an appreciable risk of serious injury.
Manslaughter offences vary widely in their level of gravity
[2]See ss 6(1) or (5) and 132(1) of the Firearms Act 1996 (Vic).
While manslaughter is one of the more serious crimes known to the law, the circumstances of its commission, and the resulting sentences, vary widely. Usually, voluntary manslaughter (which no longer exists in Victoria since the abolition of provocation as a defence to murder) is the category regarded as the most serious; then manslaughter by unlawful and dangerous act is usually a rung lower; and then manslaughter by criminal negligence is usually another rung down. Often, there will be a lower level of moral culpability in the offender who killed by criminal negligence than the one who killed by an unlawful and dangerous act. This is because, in most cases of criminal negligence, there will be no intent on the part of the offender to cause any harm whatever to the victim whereas such an intention usually will be present in cases of manslaughter by an unlawful and dangerous act. But there is no inflexible rule. Some instances of manslaughter by criminal negligence will be more serious, and result in heavier sentences, than instances of manslaughter by an unlawful and dangerous act. Each case must turn upon its own particular facts.[3]
[3]See R v Jagroop (2009) 22 VR 80 at 90[63]-91[69] per Weinberg JA (Williams AJA agreeing at 92[75]).
The present case
That there can be no inflexible rule is illustrated by the circumstances of this case. Mr Rapovski had no intent to harm Mr Hassan at all. They were friends. The killing was an accident. It resulted from extremely stupid behaviour, albeit also unlawful and dangerous, but not from an act of violence. As Mr Johns submitted, the circumstances are equally befitting manslaughter by criminal negligence.
That said, for several reasons, Mr Rapovski’s behaviour still involved a relatively high degree of culpability. First, even a person who was inexperienced with guns, as Mr Rapovski was, would realize they have to be handled carefully. Yet he was nonchalant – even arrogant – about the concerns expressed by his friends that night in the motel as to the danger in handling a firearm.
Secondly, no reasonable person should ever point a gun at another, even if the gun is thought to be unloaded, unless there is a lawful justification or excuse for doing so. A reasonable person (i.e. one not addled by illegal drug use) in Mr Rapovski’s position would have known or remembered that the gun was loaded; would have been careful to check whether it was loaded, particularly when it had been handled by another since he last handled it; would not have handled a gun in a drug-addled state anyway; and would not be so stupid and thoughtless as to point it at another’s face at all, let alone at close range.
Thirdly, since Mr Rapovski had not slept much over the previous four days and had been consuming both GHB and ice during that period, he must have realized he was in no condition to be handling a gun.
Fourthly, while Mr Rapovski’s flight from the scene may be explained by shock, youthful panic, intoxication and/or an irrational fear of reprisal, it was still just disgraceful. And while I accept that there was nothing he could do for Mr Hassan, as he had been killed instantly, he was his friend whose death he had just caused. He owed him – and Mr Hassan’s family – a moral duty to stay and report the death. Further, that he sought to flee the country the next day does him no credit either. By then, he had had time to calm down, clear his mind and atone for his earlier cowardice in leaving the motel. But he chose to continue to attempt to avoid responsibility instead.
Overall, I regard this crime as falling around or just above the mid-range of gravity, recognizing that there was no intention to shoot or even harm Mr Hassan and that I am not satisfied that he knew the gun was loaded or that he intended to pull the trigger. Nevertheless, there is a high degree of carelessness and blameworthiness in Mr Rapovski’s conduct in pointing the gun at his friend in such dangerous circumstances and in his behaviour in the aftermath.
Mitigating factors
I turn now to the factors in mitigation on which Mr Rapovski is entitled to rely. Before doing so, I shall set out in some detail his background as outlined by Mr Johns on the plea.
Background
Mr Rapovski will turn 21 on Boxing Day. He was born in Melbourne and has two older brothers. His father, a bus driver by occupation, and his mother, a floor-manager of an engineering company, were both present in Court for the plea hearing.
Mr Rapovski’s early years were spent in the company of his immediate family and his grandmother. As both his parents worked, Mr Rapovski’s grandmother played a significant role in his early childhood, and he became very attached to her. When he was aged five, his grandmother returned to Macedonia, to which he reacted badly. He became sick and was not functioning well. The family thought it best that he go to Macedonia to live with his grandmother, which he did between the ages of six and ten. He had a happy childhood in Macedonia, attending school until the age of ten, when he returned to Australia.
Upon his return, Mr Rapovski attended Lalor North Primary School for the remainder of his primary school years. He then attended Lalor North High School and commenced a school-based mechanic apprenticeship in Year 11. He completed his Year 12 VCAL (“Victorian Certificate of Applied Learning”) in 2013.
On finishing his VCAL, Mr Rapovski did not pursue the mechanic apprenticeship. Instead, he was employed as a machine operator at the engineering company at which his mother works; then as a sales assistant at Repco; and finally as a cleaner. At the time of the offence, he was unemployed. Recently, he had completed a security course and was awaiting the receipt of his security licence. When he is eventually released back into the community, Mr Rapovski hopes to work in the building and construction industry.
At the time of the offence, Mr Rapovski was engaged to be married. The wedding was set for 23 April 2016 and an overseas honeymoon had been planned and paid for. Mr Rapovski’s fiancée remains supportive of him and they still plan to get married when he is released from custody.
Both Mr Rapovski’s parents and his fiancée continue to support him by visiting him in prison weekly. His parents will continue to support him and provide such support after Mr Rapovski is released from prison.
Mr Rapovski began using cannabis at 14 and methylamphetamine (“ice”) in 2015 when he was 19. He was using ice and GHB at the time of the offence. He was not a regular user of GHB.
Having set out that background, I turn now to the mitigating factors.
Early plea of guilty
First, Mr Rapovski has pleaded guilty to the charge.
That plea is significant in several ways. First, it was made at an early stage. He entered the plea at a committal mention hearing in the Magistrates’ Court and honoured that plea in this Court. Secondly, his plea has obviated the need for what would have been a stressful contested committal hearing and trial and has spared the witnesses the ordeal of reliving these events and being cross-examined about them. Thirdly, the plea involves an acceptance by Mr Rapovski of legal responsibility for his actions and a willingness to facilitate the course of justice.
Remorse
Secondly, I am satisfied that Mr Rapovski is genuinely sorry for, and understands the impact of, his actions. There are four reasons for that conclusion.
First, some of his admissions to police suggest a measure of remorse.
Secondly, his early plea of guilty is also evidence of remorse.
Thirdly, the evidence of those who have spoken to Mr Rapovski since the shooting demonstrates that he is remorseful. Mr Rapovski’s fiancée, in her written reference, said that he “now constantly lives with guilt and hurt”; that he is “very saddened and is distraught over this incident”; that “[h]e constantly has visions playing in his head from that night”; and that “he is very distressed and sorry for the grief he’s caused”. Mr Johns also tendered a psychological assessment by Dr Andrew Cunningham. In his report, Dr Cunningham says this:
Mr Rapovski presents with protective factors that may reduce his risk and improve his prospects for rehabilitation. He was remorseful for his offence behaviour. He was distressed with regard to his actions and the consequences to the victim’s family. He has been experiencing symptoms of trauma and guilt in the form of nightmares.
Fourthly, through counsel on the plea, Mr Rapovski said that he was very sorry for his actions, which apology I accept is genuine. Mr Johns also summarized in Court, and put into evidence, a letter Mr Rapovski had written to Mr Hassan’s family. He expressed his heartfelt sorrow and sincere apologies; apologized for his attempts to flee; explained that he considers part of his punishment is that he thinks of Mr Hassan each day; and said that he will never forgive himself for the sadness he has caused.
Against this, I must factor in Mr Rapovski’s flight from the scene and his attempt to flee the country the next day. This behaviour is inconsistent with remorse at that time. I have already expressed a view on how I think this behaviour aggravated his crime. That said, despite such behaviour, a person can be remorseful, and can demonstrate such a state of mind, by his subsequent behaviour. For the reasons I have given, I am satisfied that Mr Rapovski now experiences genuine remorse.
Youth
The third factor in mitigation concerns Mr Rapovski’s youth. As I have said, he is still only 20.
All else being equal, a younger person is less likely to appreciate risk or consider consequences. It is evident in the photographs taken in the motel that Mr Rapovski lacked the appropriate appreciation of the risks associated with handling a firearm.
In my view, Mr Rapovski is at an age where his values and attitudes are still being formed. It is of course sad that he will have to develop those values and attitudes while in gaol, but that, of course, is an unavoidable consequence of the nature and gravity of his crime. He must go to gaol, and for a substantial period. But one of the great aims of the criminal law is to rehabilitate younger offenders. And Mr Rapovski is still so young that rehabilitation is an important consideration in his case.
Mr Johns submitted that Mr Rapovski’s youth warranted a longer potential parole period than might otherwise be fixed to give effect to the emphasis placed upon the rehabilitation of young offenders, especially those with a limited criminal history. I accept that submission.
Previous good character and very limited criminal history
The fourth matter in mitigation is that Mr Rapovski has a limited criminal history and is otherwise previously of good character.
On 28 October 2015, he appeared in the Melbourne Magistrates’ Court on charges of possessing a prohibited weapon, possessing a controlled weapon and using cannabis. He was fined a total of $500, without conviction.
Mr Johns explained that the weapons charges related to Mr Rapovski’s being in possession of two knives, one of which was a collectable “Rambo” knife, when his vehicle was pulled over by police.
Importantly, he has no criminal history for misuse of firearms in a dangerous or violent fashion or any prior convictions for violence or causing harm to others.
The references tendered at the plea speak of a respectful, polite and friendly young man.
Good prospects of rehabilitation
Finally, I am satisfied that Mr Rapovski has good prospects of rehabilitation. There are several reasons for that conclusion.
First, Mr Rapovski’s plea of guilty, remorse, youth, limited criminal history and previous good character suggest that that is so.
Secondly, as indicated earlier, the evidence is that Mr Rapovski has shown he can work and contribute to the community. He continues to work in the prison factory from Monday to Friday each week. I am satisfied that he will make something of himself upon his eventual release.
Thirdly, Mr Rapovski is fortunate to have the support of his parents and his fiancée. They visit him regularly in prison and, I accept, will continue to do so.
Fourthly, Ms Piekusis accepted that, on the material before the Court, it was open to make a positive finding with respect to Mr Rapovski’s prospects of rehabilitation.
If Mr Rapovski had no history of illicit drug use, or if he had demonstrated reform in that regard, it is likely I would have considered his prospects of rehabilitation to be substantially better. That said, while his history of drug use is not promising, the length of the sentence I must impose will give him sufficient time to do courses in prison that will assist his reform in that regard.
Sentencing purposes
I turn now to the purposes of sentencing.
Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.
General deterrence, denunciation and just punishment
In my view, general deterrence, just punishment and denunciation are important considerations in this case of manslaughter. The community should understand that behaviour of the type engaged in by Mr Rapovski is denounced by the courts and will result in a substantial term of imprisonment that reflects that a young person’s life has been taken by an unlawful act committed in the course of dangerous and profoundly foolish behaviour and that the lives of Mr Hassan’s loved ones have been marred forever in consequence.
Specific deterrence
While specific deterrence must be given some weight, it is moderated to a large extent by the fact that Mr Rapovski is young, has positive character traits and a limited criminal history, has pleaded guilty, has shown remorse and has good prospects of rehabilitation. I consider it very unlikely that Mr Rapovski will reoffend in this way. Ms Piekusis also accepted, I think rightly, that there does not appear to be a need to give specific deterrence any significant weight in this case.
Rehabilitation and protection of the community
In my view, rehabilitation remains an important consideration. This is particularly so because Mr Rapovski is so young and his prospects of rehabilitation are good.
I do not consider that there is any need to add a separate component in sentencing for protection of the community. The sentence that results from the other purposes of sentencing will ensure that the sentence is of more than sufficient severity to protect the community.
I think it is important to recognize the interplay between rehabilitation and protection of the community in any event. Mr Rapovski will be returning to the community ultimately. It is therefore in the community’s interests that such prospects of rehabilitation as he has be maximized, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into the community are good.
Parsimony
Section 5(3) of the Sentencing Act reflects the common law principle of parsimony. I have applied this provision and this principle when considering the appropriate sentence in this case.
Current sentencing practices
In so far as I can determine them, I have had regard to current sentencing practices for manslaughter.
Sentencing statistics show that, for the period from 2009-10 to 2013-14, prison sentences for manslaughter ranged from three to 14 years’ imprisonment; the average sentence ranged from about six years and nine months’ imprisonment in 2013-14 to just over eight years’ imprisonment in 2009-10 and 2012-13; and the median sentence was eight years’ imprisonment, as was the mode. During the same period, non-parole periods ranged from nine months to ten years; the median non-parole period was five years and four months; and the modal non-parole period was five to less than six years.[4]
[4]Sentencing Advisory Council, Sentencing Snapshot (No 172), May 2015, pp 3-5.
Those statistics are, of course, of limited utility, mainly because they do not distinguish cases according to their most important sentencing considerations – such as the form of manslaughter, the seriousness of the particular offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.
Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. Counsel referred me to several cases involving manslaughter by accidental shooting,[5] all of which I have considered. I shall refer to just one of those cases in these reasons.
[5]These included R v Torun [2014] VSC 146; DPP v Torun [2015] VSCA 16; R v D’Angelo [2014] VSC 522; R v Munt & Ors [2014] VSC 675; R v Howard [2014] VSC 194; R v Nguyen [2010] VSC 528; DPP v Sypott [2004] VSCA 9; DPP v Barnwell [2002] VSC 280;; R v Stratton (2008) 20 VR 539; DPP v Phillips [2009] VSCA 68. See also, e.g., DPP v Smith [2012] VSC 314; R v Reynolds (Unreported, Court of Appeal, 28 May 1997); R v Lai [2015] VSC 346.
Both counsel referred to R v Torun[6] as a useful comparator. Mr Torun, who was aged only 24, pleaded guilty to manslaughter. He shot and killed his girlfriend by deliberately pointing a sawn-off shotgun at her, which he believed was unloaded, and pulling the trigger once. He and a friend then rushed her to hospital but got lost and went to a police station for help instead. While he had a history of abusive behaviour towards his girlfriend, Mr Torun did not intend her any harm at the time of the shooting – i.e. it was an accident. He was sentenced to eight years’ imprisonment with a non-parole period of five years. A Director’s appeal against sentence was dismissed.[7]
[6]R v Torun [2014] VSC 146.
[7]DPP v Torun [2015] VSCA 16.
Two of the more significant differences – each pulling in the opposite direction – are that Mr Torun deliberately pulled the trigger, whereas I am not satisfied that Mr Rapovski did; and that Mr Torun sought to assist his victim immediately (although he later lied about the events), whereas Mr Rapovski fled the scene and then tried to leave the country. Mr Rapovski is also younger.
I could go on with comparisons between the present case and R v Torun and other cases. But, in the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to applied or distinguished. Nevertheless, I have found R v Torun and the other sentences I have considered, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for manslaughter, particularly where the deceased is killed by accidental shooting, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors. In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Mr Rapovski’s offence of manslaughter. As it happens, and as will be seen shortly, I regard the present case as warranting the same sentence as was imposed in R v Torun.
Disposal order
Before announcing sentence, I note that Ms Piekusis applied for a disposal order in respect of various items and a forfeiture order in respect of the ammunition seized.[8] The applications were not opposed. In those circumstances, I shall make those orders.
[8]At the time of passing sentence, I thought only a disposal order was sought. Ms Coombs, who appeared for the Director at sentence, and Mr Johns disabused me. Thus, I made the orders for both disposal and forfeiture.
Sentence
I turn now to sentence.
Mr Rapovski, please stand.
Balancing all factors as best I can, for the manslaughter of Mahamd Hassan, Mr Rapovski is convicted and sentenced to eight years’ imprisonment with a non-parole period of five years.
Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that 271 days (including today) be reckoned as served under this sentence.
I also declare, pursuant to s 6AAA of the Sentencing Act, that, but for Mr Rapovski’s plea of guilty, I would have imposed a sentence in the order of 11 years’ imprisonment with a non-parole period of eight years.
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