R v Selimovski - [2016] VSC 325

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0031

THE QUEEN
v
JUMER SELIMOVSKI	Accused

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JUDGE:	CROUCHER J
WHERE HELD:	Melbourne
DATES OF HEARING:	15-18, 21-24 & 29-31 March & 1 & 4 April 2016 (Trial) 13 May 2016 (Plea)
DATE OF SENTENCE:	10 June 2016
CASE MAY BE CITED AS:	R v Selimovski
MEDIUM NEUTRAL CITATION:	[2016] VSC 325

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CRIMINAL LAW – Sentence – Murder (following trial) – Accused, with two others, armed with handgun, shotgun and fire extinguisher containing petrol, conducted late night attack on car outside suburban residence – Upon interruption, accused fired handgun towards people outside residence, striking deceased once in chest, killing him – Deceased innocent victim of accused’s feud with resident over car parts – Planned attack on car but spontaneous shooting – Reckless murder, not intentional – Recklessly causing injury (following plea of guilty) – During same incident, another, at accused’s direction, fired shotgun at car, striking SG’s leg via ricochet, causing injury – Reasonable prospects of rehabilitation – Whether accused’s moral culpability, and need for deterrence, reduced because of mental condition – Curial denunciation, just punishment, protection of community and rehabilitation – Accused aged 51 – Parity considerations – Sentence on murder of 22 years’ imprisonment – Sentence on recklessly causing injury of two years and three months’ imprisonment – Total effective sentence of 22-and-a-half years’ imprisonment with non-parole period of 17 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J McWilliams	Office of Public Prosecutions
For the Accused	Mr J Desmond	Theo Magazis & Associates

HIS HONOUR:

Overview

Sometimes, life can be horribly unfair. If there be any doubt about it, just think about Benjamin Monteath and his grieving family and friends.

At about 10.00pm on Saturday 17 May 2014, Mr Monteath went to the Epping home of Adrian and Belinda Grech, who were hosting their son’s eighth birthday party. Mr Monteath was not a guest. Rather, he was there simply to pick up his friend Wayne Grech, who was at his nephew’s party. Nevertheless, when Mr Monteath arrived, he did the courteous thing and accepted his friend’s invitation to come in for a while and join the men in the shed.

An hour later, as he neared the front door to leave, Mr Monteath was shot once in the chest with a .380 calibre handgun. He fell to the floor. Others at the party frantically tried to revive him. A neighbour who worked as a nurse then tried to help, and so did ambulance officers. But it was all to no avail. He died there and then.

By a unanimous verdict on 4 April 2016, the jury empanelled on Jumer Selimovski’s trial found that he fired that fatal shot – and in circumstances amounting to murder.

Mr Monteath, who did not even know his killer, had the tragic misfortune of being in the wrong place at the wrong time. He was an innocent victim of Mr Selimovski’s hare-brained criminal scheme…

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 Selimovski

Details

AGLC: R v Selimovski [2016] VSC 325
Case: [2016] VSC 325
Decision Date: 10 June 2016

CaseChat Overview and Summary

In the case of R v Selimovski, the accused was convicted of murder and recklessly causing injury. The dispute arose from a late-night attack on a car outside a suburban residence, where the accused, along with two others, was armed with a handgun, a shotgun, and a fire extinguisher containing petrol. Upon being interrupted, the accused fired a handgun towards the people outside the residence, striking and killing the deceased, who was an innocent victim in a feud over car parts. Another person, at the accused's direction, fired a shotgun at the car, causing injury to a person via ricochet. The legal issues before the court involved determining the appropriate sentence for the murder and the recklessly causing injury, considering the accused’s moral culpability, prospects of rehabilitation, and the need for deterrence and denunciation.

The court was required to balance the principles of just punishment, community protection, and rehabilitation while also considering the accused's mental condition and parity with other sentences. The court found that the murder was reckless rather than intentional, but still warranted a severe punishment due to the gravity of the act. The court also acknowledged the accused's reasonable prospects of rehabilitation, which slightly mitigated the sentence. The court concluded that a total effective sentence of 22-and-a-half years’ imprisonment with a non-parole period of 17 years was appropriate. This sentence reflected the need for denunciation, deterrence, and the protection of the community while also considering the accused's prospects for rehabilitation.

The court further examined the principles of parity, ensuring that the sentence was consistent with others imposed for similar offences. The court determined that the 22-year sentence for murder, combined with the two-year-and-three-month sentence for recklessly causing injury, resulted in a just outcome that balanced all relevant factors. The final orders of the court were for the accused to serve a total effective sentence of 22-and-a-half years’ imprisonment, with a non-parole period of 17 years. This sentence aimed to uphold justice, protect the community, and provide an opportunity for the accused's rehabilitation.

Orders