Ristevski v The Queen

[2011] VSCA 53

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0677
IVO RISTEVSKI	First Applicant
v
THE QUEEN	Respondent
S APCR 2009 0659
ROBERT MUSSO	Second Applicant
v
THE QUEEN	Respondent
S APCR 2009 0660
KHALIL BOU’ELIAS	Third Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BUCHANAN and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 January 2011
DATE OF JUDGMENT:	20 January 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 53
JUDGMENT APPEALED FROM:	R v Bou’Elias, Musso and Ristevski (Unreported, County Court of Victoria, Judge Patrick, 5 June 2009)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, armed robbery, intentionally cause injury, attempted aggravated burglary and negligently cause serious injury – Judge departed from agreed facts – Aggravating feature found though disavowed by Crown – Unfairness to accused – Incorrect maximum penalty applied – Crown concessions – Appeal allowed – Appellants resentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Ristevski	Mr S A Shirrefs SC	Haines and Polites
For the Applicant Musso	Mr O P Holdenson QC	Valos Black & Associates
For the Applicant Bou’Elias	Mr T Kassimatis	Theo Magazis & Assocs
For the Respondent	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1  These three applications for leave to appeal against sentence have been heard together.  The offences to which the applicants pleaded guilty, and the sentences respectively imposed on them, are set out in Schedule A to these reasons.  This tabulation was helpfully prepared by the Crown.

2  The offences occurred in two separate incidents.  One incident involved all three applicants (‘first incident’).  The circumstances of that offending were described by the sentencing judge in the paragraphs of her Honour’s reasons set out in Schedule B.

3  The other incident involved the first applicant and another unknown offender (‘second incident’).  The circumstances of that offending were described by the sentencing judge in the paragraphs of her Honour’s reasons set out in Schedule C.

4  The Crown has conceded sentencing error in relation to each applicant, but the concessions relate only to the sentencing for the first incident, that involving the three applicants.  The concessions are properly made, in my view.  It follows that each appeal will be allowed and each of the appellants resentenced as set out in the table marked Schedule D below.

Departure from agreed facts

5  The incident involving all three applicants had two separate victims, Morgan and Shabo.  It appears to me that the conceded errors both relate to the offences concerning the second victim, Shabo.  After the armed robbery of the first victim, Morgan, he contacted the second victim, Shabo.  Morgan claimed that he did this after being threatened with a gun. 

6  The first conceded error is that the judge, in her reasons, concluded that there had in fact been a gun used to threaten Mr Morgan and that this was an aggravating feature of the offending.  Her Honour said:

The Crown did not proceed with any charges relating to the use of the firearm against Mr Morgan.  The prosecutor said that these matters were included on the basis that was what Mr Morgan said and the Crown further said that it did not urge me to find beyond reasonable doubt that the gun was used to threaten Mr Morgan.

On the basis of what Mr Morgan has said, I am satisfied beyond reasonable doubt that the firearm was used, in that it was at least presented to Mr Morgan and that he regarded this as a threat to himself.  I have taken this into account as an aggravating feature of this offending.[1]

[1]R v Bou’Elias, Musso and Ristevski (Unreported, County Court of Victoria, Judge Patrick, 5 June 2009) (‘Reasons’), [23]–[24].

7  With great respect, this was a significant error for her Honour to have made.  The plea transcript reveals that this matter was discussed at some length between her Honour and the prosecutor on the first occasion.  The prosecutor made it quite clear that the Crown did not contend that the seriousness of the offending was aggravated by the use of a gun in relation to Morgan.  He said that Morgan’s assertion that he had been threatened had been included in the Crown summary as, and only as, part of the narrative.  Her Honour said that she understood how the matter was put by the Crown.

8  On a subsequent hearing on the plea, her Honour returned to the issue and expressed concern about what she evidently regarded as her obligation to deal with that factual matter, notwithstanding that it was not said by the prosecution, nor conceded by the defence, to be an aggravating factor.  Her Honour expressed herself not to be bound by the negotiated statement of facts which included that reference only as narrative.

9  It is, I think, important to emphasise the significant considerations which stand against a sentencing judge departing from what is, in the case of a Crown summary, almost invariably an agreed or negotiated factual basis on which pleas of guilty have been entered.  First, it is unfair to a defendant to make an adverse finding where, as occurred here, defence counsel have no opportunity to contest the issue.[2]  Secondly, where the fact in issue is contested, as it was here, a finding beyond reasonable doubt is, with respect, simply not open in the absence of cross-examination.  In the present case, counsel on both sides had indicated that these matters were in contest and that the credit of Morgan would have been challenged had there been a trial.[3]  Thirdly, and perhaps most significantly, to depart from the agreed factual basis, or even to seek to depart from it, is effectively to upset the agreed basis of the pleas of guilty.

[2]See Mielicki (1994) 73 A Crim R 72, 78-80; R v Duong (1997) 99 A Crim R 218, 227‑229; R v Lowe [2009] VSCA 268, [17]–[21].

[3]See R v Alexandridis [2008] VSCA 126, [15]–[19].

10  It must, I think, be a rare case in which a judge will be entitled to question the basis upon which the Crown has decided to accept pleas of guilty.  That is a matter for the prosecuting authority, not for the court.  If, as this judge was told, the matter of the gun was not relied on as an aggravating factor, and on that basis pleas of guilty had been entered, with great respect I am unable to see why it was thought that there was any scope for that matter to be further investigated by the judge.  The process of negotiating Crown summaries is conducive to the interests of justice, by facilitating the resolution of matters by guilty pleas rather than by trials.

Incorrect maximum penalty

11  The second error concerned the maximum penalty for negligently causing serious injury.  Her Honour approached sentencing on the basis that the maximum penalty for that offence was 10 years, when it was in fact five years.  It has subsequently been increased to 10.[4]

[4]Crimes Amendment (Child Homicide) Act 2008 (Vic) s 4.

Resentencing

12  The resentencing should, in my opinion, proceed on the basis of the judge’s findings both as to the offending and as to the circumstances of the individuals, subject to the matters outlined below.  Her Honour described the offending in the following terms, which were not contested on these applications:

Mr Musso, Mr Ristevski, Mr Bou'Elias, you have all been involved in extremely serious offending.  In my view at least a small amount of preliminary planning was involved when you engaged in the offending against Mr Morgan.  Mr Musso knew of Mr Morgan and Mr Shabo and knew of the way in which they operated.  I am satisfied that at some point you must have agreed to meet together for the purpose of robbing Mr Morgan.  You went to Mr Morgan’s flat armed with a taser gun.  Subsequently you obtained, the three of you, a handgun.  You co-operated together to get money and drugs, initially from Mr Morgan and then from Mr Shabo.  Mr Musso and Mr Bou’Elias wanted drugs and/or money, Mr Ristevski was after money for gambling. 

The three of you burst into Mr Musso’s home, you used a taser gun against him and physically assaulted him in order to get money.  You made him give his drugs to you.  You were not deterred by the presence of another occupant in his home.  You then used Mr Morgan to contact Mr Shabo and to set up going down to Mr Shabo’s flat.  You forced Mr Morgan to accompany you.  You presented the gun at some point to him in a way that was threatening to him.  You had the taser with you and the handgun when you attempted to force your way into Mr Shabo’s home to obtain money.  In my view, it is a high degree of negligence to allow a gun in those circumstances to discharge and the gun caused serious injury to Mr Shabo. 

It is clear that this offending warrants a significant term of imprisonment for the purposes of just punishment, denunciation, general deterrence, specific deterrence and the protection of the community.  For the purposes of sentencing, I regard all of you as having had an equal participation in this offending, with Mr Musso having had a small added aggravating feature of having been the person who initially knew Mr Morgan and Mr Shabo. 

I note the matters raised in Mr Bou’Elias’ plea, but in my view the assault on Mr Morgan had already commenced when he moved into the sitting room and that in speaking to Ms Thompson and making sure that she did not raise the alarm or cause any other difficulty, you were assisting Mr Ristevski and Mr Musso in what they were doing with Mr Morgan.

In the absence of any evidence as to who supplied or used weapons or who proposed or planned the robbery in any greater detail, I am unable to attribute any of those aggravating features to any particular one of you.  I am also unable to regard any one of you as having had a lesser role.

I am required to bear in mind the principles of parity in regard to this joint offending.  Having regard to that principle, the sentences, in my view, are affected to a degree by the personal circumstances of each of you.[5]

[5]Reasons, [110]–[115].

13  This was extremely serious offending.  There was a high degree of negligence in the use of the gun in relation to Shabo.  The basis for sentencing was, and is again now, that the participation of the three was equal, with the exception of what her Honour described as a limited additional aggravation in relation to Musso, because he was the one who knew Morgan and Shabo.

14  Finally, her Honour said – and I respectfully agree – that the sentencing of the individuals, and in particular the differentiation between them in sentencing, fell to be determined in accordance with the differences in their individual circumstances.

15  Before I deal with those circumstances, I should add that I would uphold the submission advanced by counsel for Musso that there should be a smaller degree of cumulation as between the sentences on counts 4 and 5 and the sentences on counts 1 to 3, given the proximity in time of the offending.

Resentencing:  Ristevski

16  I will deal first with Ristevski.  Her Honour described the personal circumstances of Mr Ristevski in her reasons as follows:

Clearly, the circumstances of each case have to be considered in applying the principles set out in Verdins.  In this case, you have been diagnosed as having a pathological gaming problem.  Mr Newton says in his first report that there were various diagnostic possibilities at that stage, and in his second report he confirmed his diagnosis of pathological gaming, and says that you continue to suffer noteworthy disturbance of your mental state.  He describes your symptoms of mild thought disorder and the impact this might have on your incarceration.

I consider that your depressive symptoms contributed to some degree your gambling.  I consider that some minor moderation of sentence should be included to reflect your slightly reduced moral culpability and prospects that your current mild thought disorder will render your incarceration more difficult.

It appears that from the evidence provided on your behalf that apart from your gambling problem you have been able to work hard and have contributed to your community.  You have complied with your bail conditions and there has been no further offending.

I accept that you have ceased gambling.  I accept that you are genuinely remorseful for your offending.  You have family support and support in your community.  As to your prospects for rehabilitation, it is of some concern that you have not sought professional assistance with your problems.  Mr Newton's conclusion suggest that you need further professional assistance for mental health issues.

It is my view that in view of Mr Newton’s conclusions your prospects for rehabilitation could be described as reasonable.  You are somewhat younger than Mr Musso, and have a much less history of prior offending.  Your offending is clearly not so entrenched.  You have also remained gambling and offence free for some period of time.  In my view those matters should be reflected both in mitigation of the head sentence and in the setting of a non-parole period which is longer than would usually be set.

Of course, you are being sentenced in relation to additional serious offending which occurred earlier on the same day as the joint offending.  The assault with intent to rob was a particularly violent one involving the use of weapons.  You followed the persons to their temporary home, and assaulted them.  You caused them physical harm and emotional consequences, as well as consequences of inconvenience.

I accept that your plea of guilty has considerable utilitarian value, and is consistent with genuine remorse.[6]

[6]Reasons, [123]–[129].

17  Senior counsel for Ristevski argued that her Honour ought to have given more weight than she did to his psychiatric issues.  He referred to certain aspects of Mr Newton’s report dealing with the applicant's ‘mild thought disorder’ and other matters such as his impulsivity, his limited ability to manage his own actions and his tendency to act precipitously and without considering the full range of consequences or alternatives.  In my respectful view, Her Honour’s assessment of those matters and the weight she give to them was appropriate.

18  There are a number of matters which senior counsel has properly identified as counting in Mr Ristevski’s favour relative to the other applicants:  his relative youth,[7] his lack of a relevant criminal record,[8] and his genuine remorse.[9]  His prospects of rehabilitation, which were described by the judge as reasonable, also counted in his favour, there being no like finding in respect of either of the other applicants.  Senior counsel informed us today that his client had completed a TAFE course in Asset Maintenance (Cleaning Operations) and a problem gambling program.  Those matters do, in my view, support the optimistic view which the judge had, and which I would take, of this applicant’s prospects for rehabilitation.  The submission advanced on the applicant’s behalf – that sentencing should take account of and encourage efforts towards rehabilitation – is one I would endorse.

[7]Reasons, [127].

[8]Ibid.

[9]Reasons, [126].

19  Finally, I respectfully agree with the sentencing judge that, given those features of Ristevski’s position, a shorter non-parole period than might otherwise have been the case is justified.

Resentencing:  Musso

20  The sentencing judge described Musso’s circumstances as follows:

Mr Musso, you knew Mr Morgan and Mr Shabo and the way they operated.  You knew that Mr Morgan knew you and trusted you to a degree and you took advantage of that.  You have a very serious and relevant prior criminal history involving armed robbery, firearms and violence.  Those matters go to your moral culpability, your prospects for rehabilitation and the need for specific deterrence and protection of the community.  I accept that your drug use was triggered by an adjustment disorder in the context of the cessation of your career as a boxer.  I accept that your drug use was part of the context of this and your prior offending.

Despite periods of imprisonment, you have continued to use drugs and to offend.  You have had opportunities to receive treatment and counselling.  You have had considerable time and opportunity to deal with and recover from the distress caused to you by the cessation of your boxing career.  You have had considerable time and opportunity to take what steps were needed to be taken to cease your illegal drug use.

I accept that you have demonstrated a change in attitude in your most recent period on remand.  I accept that your drug rehabilitation has commenced.  That change in attitude, together with your family support, suggests that your prospects for rehabilitation are now slightly better than poor.  In the light of your past history and past inability to remain drug-free, your prospects for rehabilitation could not be put anything like as high as moderate. 

You have pleaded guilty in circumstances where that plea has considerable utilitarian value.  I accept that you are remorseful about your past offending, but I am not satisfied that you have genuine remorse about the way you treated Mr Morgan and Mr Shabo.  Your rehabilitation is in the public interest and your efforts at rehabilitation while on bail and in remand for these offences should be recognised and rewarded in accordance with the principles set out in R v Merritt & Ors and the DPP v Tokava.  Those principles apply to each of you accused. 

Mr Musso, your prospects for rehabilitation are one factor to be taken into account in sentencing you, both as to the head sentence and the non-parole period set together with the other sentencing considerations I have previously mentioned.  In your case I consider that specific deterrence, just punishment and community protection continue to have a significant role to play in the sentence imposed.  I note and take into account in a general sense that you spent six and a half months in custody on a charge on which you have acquitted.  That is the reality that you have faced.  I also note that prior to this offending you spent that time in custody and other periods of imprisonment which did not appear to deter you from continuing your drug use and this offending. 

21  The only new matter relied on by senior counsel for Musso was evidence of improved prospects of rehabilitation.  It was noted that the sentencing judge viewed Musso’s prospects as ‘slightly better than poor’ but not ‘anything like as high as moderate’.[10]  Senior counsel for Musso informed the Court that his client had been subjected to 17 random urine tests over 15 months and throughout that period was completely drug-free.  He has also completed a 40 hour ‘medium‑intense’ drug and alcohol course. 

[10]Reasons, [118].

22  With respect, I would agree with counsel’s submission that it would be right to regard his client’s prospects of rehabilitation as materially improved by the efforts he has made, and that ‘moderate’ would be an appropriate grading.  As I have said, the efforts which those in custody, or those awaiting sentencing, make towards their own rehabilitation should be encouraged.  It is a point often lost sight of in the increasingly punitive debate about sentencing that the rehabilitation of offenders is powerfully in the public interest.

Resentencing:  Bou’Elias

23  Her Honour described Bou’Elias’s personal circumstances as follows:

You have a significant criminal history including dishonesty and driving and drug-related offending.  You were convicted in February 1996 and fined $800 in relation to offences including assaulting and resisting a police officer.  Apart from that, you have no prior court appearances involving offences of violence.

…

Mr Bou’Elias, you have a significant prior history but little history of violent offending and no history of armed robbery or offences of possessing or using firearms.  I do note one prior conviction of possession of ammunition.  I also note that you retain possession of the taser gun used in relation to Mr Morgan.  I have not regarded that as an aggravating feature.  I accept that this offending occurred in the context of your heroin addiction into which you have relapsed after the death of your friend, Ms Howarth, from a drug overdose. 

I accept that both your drug addiction and depression contributed to your decision to offend on this occasion.  I note that Mr Mackinnon assessed you in March 2009 as continuing to suffer depression.  That depression is likely to make your incarceration slightly more difficult than otherwise, however, you have been in custody for some time.  Your counsel has not pointed to any particular difficulties your depression has caused you in custody and I cannot regard it as having more than a slightly increased impact on your ability to cope with incarceration.

I note that you have ceased drug and methadone use in custody but do not consider your prospects for rehabilitation to be more than moderate, given your longstanding history of drug use and drug related offending.  I do take into account the reality that you spent a considerable time in custody on charges for which you are acquitted.  That was a period of time which you might otherwise have been able to benefit from supervision on parole.

I also take into account in sentencing you, in the way that is reflected in the totality of the sentence that you are currently being required to serve time, having been breached on the parole that you had received in relation to the culpable driving sentence.[11]

[11]Reasons, [92], [130]–[133].

24  Again, there was no contest with anything found by the judge.  The only change in relation to this applicant is – unfortunately for him – a change for the worse, as his counsel properly acknowledged at the outset of his submissions.  As at the date of sentence his rehabilitation prospects were assessed as moderate but, since the date of sentence, he has had three separate appearances before the County Court, on separate charges.  On each occasion the charges were serious.  The following table summarising those charges and sentences was provided by counsel for the Crown:

Date of sentence	Court	Offence(s)	Sentence
27 Apr 2010	County	Armed robbery (x2)	TES: 2y 6m imprisonment 1y cumulative upon sentence imposed on 5 Jun 2009 New single NPP of 4y imprisonment commencing 27 April 2010
15 Jun 2010	County	Agg burglary Affray RCSI (x2) Threat to kill (x2)	TES: 5y imp 2y cumulative upon sentences undergoing New single NPP of 5y imprisonment commencing 27 April 2010
26 Aug 2010	County	ICSI	TES: 6y imprisonment 2y 6m cumulative upon sentences undergoing New single NPP of 6y 8m imprisonment commencing 26 Aug 2010
Overall:        Aggregate of 14y imprisonment (from 5 Dec 2007)*   NPP of 6y 8m (from 26 Aug 2010) – ERD: 1 Apr 2017 *Parole cancelled on 5 Dec 2007 – owed 2y 6m imprisonment

(The table reveals that on each successive occasion a new non-parole period was fixed.  I will come to that in a moment.)

25  The only conclusion one could reach is that Mr Bou’Elias’s rehabilitation prospects are poor.  In the end, given the need to maintain appropriate relativities between the applicants, that does not, to any great extent, worsen his position, but it is a matter properly drawn to the court's attention.  Whether the proposed adjustment in the non-parole period, which is a modest reduction, will result in the need for this Court to adjust the ‘new’ non-parole period fixed on 26 August 2010 is a matter for consideration by counsel for that applicant.  The Court would be available at relatively short notice to deal with that matter if an adjustment were required.

BUCHANAN JA:

26  I would grant leave to appeal and allow the appeal for the reasons stated by the President.  I would resentence the appellants as His Honour proposes.  I agree that her Honour erred in departing from the facts on which the parties agreed.  I would add that in so doing, and treating the use of a handgun as an aggravating factor, the sentencing judge effectively punished the appellants for offending that was not the subject matter of any charge.

BONGIORNO JA:

27  I agree with the learned presiding judge for the reasons which he gave that the appeal should be upheld and the orders which he proposes be made in the form in which he proposes them.

SCHEDULE A

TABLE OF SENTENCES

Ristevski

Count	Offence	Circumstances	Maximum	Sentence	Cumulation
Presentment C0705989.1 (“First presentment”)
1	Aggravated burglary	Entered victim’s premises with intent to steal knowing victim was present – in company and in possession of stun gun	25y	2y	-
2	Armed robbery	Robbed victim of heroin (value of $600) – in company and in possession of stun gun	25y	3y 6m	Base
3	Intentionally causing injury	Victim was repeatedly kicked and punched – also shot with stun gun	10y	18m	12m
4	Attempted aggravated burglary	Attempted to enter a second premises with intent to steal knowing victim was present – in company	20y	18m	9m
5	Negligently causing serious injury	During the above attempt, a handgun was discharged – victim was shot in thigh and remained in hospital for 4 days	5y	2y	12m
Presentment C0705989.2 (“Second presentment”)
1	Assault with intent to rob	Attacked 3 members of a band outside their premises – in company and armed with wooden batons and a stun gun – 1st victim was struck to back of head – 2nd victim fled – 3rd victim was shot four times with stun gun	15y	2y	-
2	Theft	Stole the victims’ bag containing passports, airline tickets and cash	10y	1y	-
Total sentences: First presentment: 6y 3m Second presentment: 2y 12 months of the sentence imposed on the second presentment were ordered to be served cumulatively on upon the sentence imposed on the first presentment.
Total effective sentence: 7y 3m Non-parole period: 4y 3m

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Musso

Count	Offence	Circumstances	Maximum	Sentence	Cumulation
1	Aggravated burglary	Entered victim’s premises with intent to steal knowing victim was present – in company and in possession of stun gun	25y	30m	-
2	Armed robbery	Robbed victim of heroin (value of $600) – in company and in possession of stun gun	25y	4y	Base
3	Intentionally causing injury	Victim was repeatedly kicked and punched – also shot with stun gun	10y	2y	12m
4	Attempted aggravated burglary	Attempted to enter a second premises with intent to steal knowing victim was present – in company	20y	2y	9m
5	Negligently causing serious injury	During the above attempt, a handgun was discharged – victim was shot in thigh and remained in hospital for 4 days	5y	30m	15m
Total effective sentence: 7y Non-parole period: 5y

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Bou’Elias

Count		Offence	Circumstances	Maximum	Sentence	Cumulation
1		Aggravated burglary	Entered victim’s premises with intent to steal knowing victim was present – in company and in possession of stun gun	25y	30m	-
2		Armed robbery	Robbed victim of heroin (value of $600) – in company and in possession of stun gun	25y	3y 9m	Base
3		Intentionally causing injury	Victim was repeatedly kicked and punched – also shot with stun gun	10y	2y	10m
4		Attempted aggravated burglary	Attempted to enter a second premises with intent to steal knowing victim was present – in company	20y	2y	7m
5		Negligently causing serious injury	During the above attempt, a handgun was discharged – victim was shot in thigh and remained in hospital for 4 days	5y	2y	10m
Total effective sentence: 6y Non-parole period: 4y

SCHEDULE B

FIRST INCIDENT

The sentencing judge described the first incident as follows:

The offending in which all three of you were involved occurred in the following circumstances.  On Sunday 28 October 2007 at about 12.20 p.m. you Robert Musso went to flats in Wellington Street, Collingwood and purchased $100 worth of heroin from a man, Neil Morgan.  At this time Mr Morgan and another man Brian Shabo were dealing heroin from their flats at 240 Wellington Street, Collingwood.  Customers would pay Mr Morgan the required amount of money and wait outside.  Mr Morgan would go down to Mr Shabo's flat and collect the required amount of heroin. 

You Mr Musso had been introduced to Mr Morgan approximately two weeks earlier.  Since that time, you had attended his premises on a number of occasions and purchased heroin. 

At about 6.15 p.m. on Sunday 28 October 2007 you Mr Musso returned to 240 Wellington Street, Collingwood to the flats and with you were Mr Bou'Elias and you Mr Ristevski.  One of you was carrying a Taser stun gun. 

Mr Morgan was in his flat with a female friend Shelley Thomson.  Mr Morgan answered a knock at the door and you three then burst into the flat - Count 1 on the first presentment - and went straight to the first bedroom with Mr Morgan.  In the bedroom, Mr Morgan was repeatedly kicked and punched.  One of you made numerous demands for money.  Mr Morgan was hit with and shot with the Taser gun;  (Count 3 on the first presentment).  Mr Morgan gave you six $100 deals of heroin from a tin in his bedroom, but repeatedly told you he did not have any money (Count 2 on the first presentment). 

As a result of the attack, Mr Morgan received lacerations to his face, head and upper body, which bled profusely (Count 3 on the first presentment).  At the time he received the electric shock from the Taser, Mr Morgan lost control of his bodily functions.  He was told to have a shower, which he did. 

Ms Thomson remained in the lounge room of Mr Morgan's flat, when the three of you burst in.  Whilst Mr Morgan was being assaulted, you Mr Bou'Elias went into the lounge room and spoke to Ms Thomson.  You three then told Mr Morgan to take you to the house of his supplier.  You handed him a blue towel and told him to place it over his head to cover the blood.  The three of you then left the premises with Mr Morgan, leaving Ms Thomson sitting in the lounge room.

You and Mr Morgan began to go to Mr Shabo's flat downstairs.  You then returned to the 16th floor and went into the lift and down to the ground floor.  Mr Morgan was then taken by you three to a car park, a short distance from the block of flats.  He was made to sit in the rear seat of the vehicle, while you stood outside the car and had a conversation.  You then got into the car and drove a short distance to where a second car was parked.  The two of you then exited the vehicle and opened the boot of the second vehicle.  You then all drove in the first car back to the block of flats at 240 Wellington Street.

Mr Morgan says that a firearm was placed against his temple and he was then told to use his mobile phone to ring his supplier and arrange for his supplier to open the door, so that the accused could “gate crash him”.  Mr Morgan says he feared being shot and rang Mr Shabo and told him he would be coming up in a few minutes.  Mr Morgan says that throughout the conversation, he was aware of the firearm and he was afraid of being shot.  Mr Shabo states that Mr Morgan sounded different when he spoke to him on the phone and that he sounded like he was drunk or off his head.  Mr Morgan says that after making the call, he was told “don't fuck with us and nothing will happen to you.”

…

Mr Morgan then went with the three of you through the car park round to the front entrance of the building, where you entered a lift at approximately 7.36 p.m.   During this time, Mr Morgan had the blue towel over his head or around his shoulders.  Mr Morgan says that again he was told in graphic terms that he would not be harmed, so long as he co-operated.  CCTV footage shows you and Mr Morgan outside the building, inside the foyer and in the lift.  You and Mr Morgan then exited the lift on the 15th floor and went to Mr Shabo's flat.

Mr Musso you stood out of view on one side of the door, while the other two accused remained out of view on the other side of the door.  Mr Shabo's flat had a screen door on the outside and a wooden inner door, both of which he kept locked.  Mr Shabo opened the wooden inner door, after hearing a knock and saw Mr Morgan standing in the hallway.  He saw a red mark under Mr Morgan's left eye and the blue towel that was hanging around his shoulders.  Mr Morgan was then pushed forward into the flat and Mr Shabo observed the male come into view from the right hand side of the door and also into the flat.  Access was prevented by the fact that the screen door was only half open and Mr Shabo pushed the person in the chest area when he persisted in his attempt to enter.  At this time, Mr Shabo observed two of you approaching from the left side of the door and attempted to close the screen door (Count 1 on the first presentment).

At this point, one of the three of you was holding a gun in the company of the others, which discharged.   Mr Shabo heard a loud bang and felt substantial pain to his left leg upper thigh region, Count 5 on the first presentment. 

Count 5 is put on the basis that although the gun was produced by one of you, the Crown is not in a position to identify which of you presented the gun.  Nevertheless, it was produced in the sight of all three of you and all three of you continued to force your way into the flat, in circumstances where the risk of discharge of the firearm constituted gross negligence.

Mr Shabo described the gun as hand gun.  This is consistent with the forensic evidence and all counsel indicted that they accepted that the firearm used was a handgun.  The Crown accepts that the discharge of the firearm may have been accidental in the circumstances. 

You three then ran to a stairwell located on the north side of the building, ran downstairs and exited on the ground level.  Two of you ran to the Magna that was parked nearby and drove away.  The third ran from the scene on foot. 

Mr Shabo and Mr Morgan were taken to the Royal Melbourne Hospital for treatment.  Mr Shabo underwent surgery for the serious injury to his leg and remained in hospital for four days.  Mr Morgan was conveyed to hospital by police and he then discharged himself, prior to receiving any treatment.[12]

[12]Sentencing reasons [15]–[22], [25]–[31].

SCHEDULE C

SECOND INCIDENT

The sentencing judge described the second incident as follows:

The offending in which you Mr Ristevski were alone involved occurred in the following circumstances.  At approximately 7 p.m. on Saturday 27 October 2007 three members of a Macedonian music group called Tik Tak played at a restaurant.  The members of the group stayed at the restaurant until about 7 a.m. the following morning and then they went to the supermarket and purchased some food.  They walked back to the house at which they were staying at Preston.

As I have, this was at about 7 a.m. on the morning of Sunday 28 October 2007.  At the time, one of the band members, Tode Ilioski was carrying a black bag containing items belonging to the group, including passports, airline tickets and European and Australian currency.

As the three band members approached the front door of the house at which they were staying, they were attacked by you Mr Ristevski and another unknown person.  You and your co-offender were armed with wooden batons, approximately 40 centimetres in length.  One of you was in possession of a Taser stun gun.  One band member, Dejan Dimovski was struck to the back of his head, causing him to stagger.  He was dazed and disorientated (Count 1 on the second presentment).

The third band member fled and ran in the direction of a police station.

Mr Ilioski was opening the front door, when he heard a clicking sound and turned around.  He saw one of you running towards him with a wooden baton and a Taser stun gun.  That person used the Taser stun gun twice, causing him to fall to the ground.  That person swung the wooden baton and narrowly avoided making contact with Mr Ilioski.  Mr Ilioski was then shot two further times with the Taser, causing him extreme pain (Count 1 on the second presentment).

The Crown is unable to say which of you was the person who had the wooden baton and the Taser stun gun.  You and your co-offender then stole the black bag, containing the passports, airline tickets and cash (Count 2 on the second presentment).

You and your co-offender ran from the scene and got into a vehicle but it was not able to be identified.  As a result of the attack, Mr Dimovski sustained bruising, swelling and a small cut to the back of his head.  Mr Ilioski did not suffer any long term physical effects from being stunned but suffered mental anguish and emotional trauma.[13]

[13]Sentencing reasons [7]–[12].

SCHEDULE D

RESENTENCING TABLE

COUNT	OFFENCE	MAXIMUM	RISTEVSKI			MUSSO			BOU’ELIAS
			Sentence	Cumulation	6AAA	Sentence	Cumulation	6AAA	Sentence	Cumulation	6AAA
1	Aggravated burglary	25y	2y	−	2y 6m	2y 6m	−	3y	2y 6m	−	3y
2	Armed robbery	25y	3y	Base	3y 9m	4y	Base	5	3y 9m	Base	4y 9m
3	Intentionally cause injury	10y	1y 3m	9m	2y	2y	1y	2y 6m	1y 9m	10m	2y 3m
4	Attempted aggravated burglary	20y	1y	3m	1y 9m	1y 6m	6m	2y	1y 6m	6m	2y
5	Negligently cause serious injury	5y	1y	3m	1y 9m	1y 9m	6m	2y 3m	1y 6m	4m	2y
TES		4y 3m	5y 3m	6y	7y 3m	5y 5m	6y 6m
NPP		3y	4y	4y	5y	3y 9m	4y 6m