Crimes Act 1958 (Vic), ss 77 & 320.

R v Newman & Turnbull [1997] 1 VR 146; The Queen v Obradovic & Ors [2018] VSC 805; DPP v Meyers [2014] VSCA 314; (2014) 44 VR 486; DPP v Vella & Ray [2014] VSCA 140; DPP v Barnes & Barnes [2015] VSCA 293; and Jiang v The Queen [2019] VSCA 126.

1 Milos Novakovic, Milan Jovic and his brother Sasa Jovic were each indicted in this Court on charges of affray,[1] aggravated burglary[2] and murder[3] arising out of events that culminated in the stabbing death of Deni Dimovski at Caroline Springs on 9 September 2017.

2 The charge of murder was put against Mr Novakovic as a principal who, in the course of an assault, spontaneously grabbed a kitchen knife and stabbed Mr Dimovski once to the chest, thereby killing him with murderous intent.[4] Alternatively, it was alleged that Mr Novakovic was guilty of manslaughter.

3 It was alleged that the Jovic brothers were beside Mr Novakovic, assisting or encouraging him, just prior to, at the moment of, and for a few seconds after the fatal stabbing. The murder charge and the alternative of manslaughter were put against them as secondary offenders on the alternative bases of statutory complicity pursuant to s 323(1)(a) and (b) of the Crimes Act 1958 (Vic) ("the Crimes Act").[5]

4 The charges of affray and aggravated burglary were put against each accused on the basis of individual liability.

5 A jury was empanelled on a joint trial in this Court on 2 May 2019. The Crown case closed on 17 May 2019.

6 Following submissions that there was no case to answer by the Jovic brothers on some charges, I ruled that Milan Jovic had a case to answer on murder and manslaughter and that Sasa Jovic had a case to answer on the charge of affray but had no case to answer on murder or manslaughter. Accordingly, I directed verdicts of not guilty on murder and manslaughter against Sasa Jovic. All other charges in issue went to the jury.

7 On 5 June 2019, the jury returned their verdicts. All three accused were found guilty of affray. Milan Jovic and Sasa Jovic were found guilty of aggravated burglary. (Mr Novakovic had pleaded guilty to that charge.) Mr Novakovic was found guilty of murder. Milan Jovic was found not guilty of both murder and manslaughter.

8 Last Friday, I heard pleas in mitigation on behalf of Milan Jovic and Sasa Jovic in respect of affray and aggravated burglary. Mr Novakovic's plea in mitigation on affray, aggravated burglary and murder has been adjourned to a later date.

9 It is now my task to impose sentence on Milan Jovic and Sasa Jovic. I shall set out my reasons and then announce the sentences to be imposed at the conclusion of these reasons.

10 I turn first to a summary of the background facts and circumstances surrounding these matters.

11 At about 2:10 a.m. on Saturday 9 September 2017, a convivial evening of Balkans singing and music, together with the consumption of a goodly amount of food and alcohol, was winding up at the Korzo Grill House, in Caroline Springs. Many of the attendees, of whom there were about 50, were invited friends or family of the organisers, who included Deni Dimovski. Others were also allowed to attend.

12 Mr Novakovic and the Jovic brothers arrived at the restaurant, with a larger group, quite late in the evening. Part of that larger group included Stefan Obradovic, Daniel Obradovic and Stephen Motta. All appeared to be enjoying themselves.

13 That group had been there for around two hours or more when a fight broke out among several (male) patrons in the dining room. It seems that the violence erupted over something as trivial as a spilled drink or a glass thrown, a dose of bad manners and far too much testosterone.

14 Whatever the true cause of the initial disorder, things turned from silly to nasty to violent, and pretty quickly at that. Shirts were grabbed; pushes and shoves were delivered; punches were thrown; furniture was knocked over; a chair and a bottle or two were hurled; headlocks were administered; and men were grabbed by the arms or the shoulders in attempts to drag them away from the fray. Some fell over in the mayhem. And yet others seemed to be interested bystanders, craning their necks for a better view. Some were frightened, perhaps even terrified; others not. Women and children were ushered away from this ugly scene, or were at least warned to stand back.

15 These events in the dining room, as well as aspects of the subsequent goings-on out the front of the restaurant, at the back door and (crucially, but to a more limited extent) inside the kitchen, were captured and recorded by six CCTV cameras. Parts of those recordings went into evidence.

16 It was clear that Milan Jovic threw a chair at one point during the violence, although that was not part of the affray as put against him or either of the other two accused.

17 Instead, the following events were those giving rise to the charges of affray against Mr Novakovic and Milan Jovic. Shortly after the chair-throwing incident, Mr Novakovic, Milan Jovic and another were involved in part of the fighting against Mr Dimovski. Mr Novakovic and Milan Jovic each threw multiple punches at Mr Dimovski, and Milan Jovic tried to kick him once. Mr Novakovic had a bottle in his hand for the first couple of punches, although it is not clear whether those punches connected. Each punch he threw appeared weaker than the last. Perhaps he was getting tired. It is not clear whether Milan Jovic's punches connected either. If they did, they cannot have had much effect, for Mr Dimovski appeared to fight back as hard as he could. It was, in effect, three onto one for a moment or two.

18 I turn now to Sasa Jovic. He picked up a bottle prior to the fighting commencing, when it seemed apparent that things might get out of hand, but otherwise was not physically involved in any violence until towards the end of the melee, when things had turned and Mr Dimovski and another appeared to be getting the better of Mr Novakovic.

19 It is, however, the immediately following behaviour that gave rise to Sasa Jovic's charge of affray. At that point, Sasa Jovic, while still holding the bottle in his right hand, came in behind Mr Dimovski and took a step or two towards him, just as he (Mr Dimovski) was attempting to throw a punch at Mr Novakovic, who was now falling backwards. Sasa Jovic then made an overhand swinging motion of his right arm towards Mr Dimovski's head. The resulting contact between Sasa Jovic's wrist and the back of Mr Dimovski's head or shoulder, if contact it was, caused the bottle to dislodge and harmlessly fly out of Mr Jovic's hand.

20 Thereafter, another person pulled Sasa Jovic away. He did not resist. Instead, he headed outside when (it appeared) he was told to do so. On his way out, he picked up a bottle from a table. I am satisfied that he did that out of a concern that things might get out of hand again.

21 Mr Novakovic and Milan Jovic also headed outside when told to go.

22 Stefan Obradovic, Daniel Obradovic and Stephen Motta were also involved in the affray. Those men were sentenced by Champion J in this Court in 2018.[6] I shall return to their sentences later in these reasons.

23 There was also evidence, from some of those who witnessed the fighting, or parts of it, about how they felt about the spectacle. That evidence ranged from fear of death to fear of harm to women and children, and to unspecified fear. Upon closer examination, however, it became apparent that some of that evidence was informed by the knowledge or belief that Mr Dimovski had been killed. The parties agreed that, whatever was to be made of the evidence of the witnesses to the violence in the dining room, the jury would be able to make their own assessment of the events giving rise to the charges of affray as depicted on the CCTV footage.

24 The dispute at trial from each accused was whether the fighting constituting the alleged affray in his case was such as to cause any person of reasonable firmness who might witness it to be terrified. Also, in the case of Sasa Jovic, the defence of defence of another[7] had to be left to the jury. Plainly, the jury's verdicts imply that those issues were found against the accused.

Uncharged acts of aggression out the front of the restaurant

25 As I have said, after the fighting in the dining room ceased, the three accused and numerous others were ejected or otherwise left the premises of their own volition. The resulting large group of mostly young men milled around outside the front of the restaurant. A bit of unspecified pushing and shoving occurred in that area.

26 There was also evidence that Mr Novakovic kicked the front door of the restaurant, causing damage to a glass panel, and that he yelled three times, "I'm gonna kill him [or them]" (or something similar).

27 Further, there was evidence that Milan Jovic also participated in kicking at the door or the windows and that he too was yelling (although what he said could not be made out).

28 There was no evidence that Sasa Jovic did, was a party to, or witnessed any of these things.

29 From among those out the front, at least nine, including the three accused, moved around to the carpark area at the rear of the restaurant. There was no dispute that six of those men, including the three accused, and, later, a seventh, ultimately entered the restaurant's kitchen through the rear door.

30 Prior to that entry, Sasa Jovic could be seen on the CCTV walking towards the rear door and then crouching down (apparently, in order to put down a bottle he was holding) and then motioning to others, who thereafter came over and gathered outside the door. Shortly afterwards, a woman came to the door from inside the kitchen and made her way outside and past the men to the carpark. Mr Dimovski was also just inside the same kitchen door at that time. He had helped that lady up after she slipped on the wet and greasy kitchen floor. Like her, Mr Dimovski had arrived in the kitchen from inside the building.

31 The first of the seven men to enter the kitchen from the outside was Mr Novakovic. As he did so, he threw a punch or punches at Mr Dimovski as he met him right at the threshold of the door. It appeared that Mr Dimovski moved backwards as Mr Novakovic moved through the door. Milan Jovic and then Sasa Jovic followed Mr Novakovic inside in quick succession, as did three other men. Shortly afterwards, one man came out and another man from the original group of nine or so went in.

32 The Crown case against the three accused was that they all committed aggravated burglary by entering the kitchen as trespassers with the intention of committing an offence involving an assault on a person inside (namely, Mr Dimovski), when he was in fact inside the kitchen at the time of their entry and when they (the accused) were each aware of (or at least reckless as to) that fact.

33 While Mr Novakovic pleaded guilty to that charge upon arraignment before the jury panel, the Jovic brothers each pleaded not guilty. The Crown put the case against the latter two accused on the basis that, at the time of entry, each had an intention to assault Mr Dimovski personally or, alternatively, to assist or encourage Mr Novakovic to do so. That was the only element in dispute at trial. All other elements were conceded.

34 For reasons I will come to later, I am satisfied that Milan Jovic intended to assault Mr Dimovski whereas Sasa Jovic intended only to assist or encourage Mr Novakovic to do so.

35 It was further alleged that, once inside the kitchen, Mr Novakovic continued to force Mr Dimovski backwards, who somehow ended up on the floor against a stainless steel bench, whereupon Mr Novakovic stood or crouched over him and began to assault him further. The forcing backwards and the manner in which Mr Dimovski went to the floor were not captured by the CCTV, but had to be inferred instead.

36 From the CCTV footage immediately after that moment, however, it could be seen that, within seconds of the commencement of the assault in front of the bench, Mr Novakovic quickly reached over to his right to the top of the bench with his right hand and grabbed a large kitchen knife, by its handle, from a container. There was no dispute that he then used the knife to stab Mr Dimovski twice, once to the chest and once to the upper left arm, in the course of the continuing - albeit brief - fracas that followed.

37 I should point out that the order of those two instances of stabbing was not known, on the evidence, as the view from the CCTV camera did not show Mr Dimovski's person at all, and therefore did not actually show the stabbings. Instead, it showed only Mr Novakovic and Milan Jovic respectively from about the head and shoulders upwards. More particularly, in the case of Mr Novakovic, it showed movements consistent with him stabbing downwards at the unseen Mr Dimovski immediately after he grabbed the knife from the bench.

38 At about the time Mr Novakovic and others entered the kitchen, three friends or acquaintances of Mr Dimovski - namely, Jove Dimovski (no relation), Tony Gorsevski and Jimmy Ribarovski - who had remained inside the restaurant with him after the fighting in the dining room, heard a commotion and rushed to the kitchen from an internal doorway. Mr Gorsevski and, to a lesser extent, Jove Dimovski had on occasions sought to restrain Deni Dimovski both during and after the fracas in the dining room. It was apparent that he was angry and more than willing to keep fighting. Only a short time after that fracas and before the accused entered the kitchen, Mr Gorsevski had slapped Deni Dimovski to the face in order to bring him to his senses when he went out through the rear kitchen door into the carpark and physically resisted when asked to come inside. In any event, the three men entered the kitchen at about the same time as Mr Novakovic grasped the knife (which was at 2:16:40 on the CCTV recording). All three ended up positioned on the opposite side of the bench while the mayhem continued.

39 Given what could and could not be seen from the synchronised CCTV footage from cameras inside the kitchen and outside the back door, it was apparent that at least six men, plus Mr Dimovski, were inside the kitchen together on one side of the bench at the same time as the three men were on the opposite side of the bench, all for a very short period during this episode.

40 Those latter three men all gave viva voce evidence. When their evidence was compared with what could be seen on the CCTV footage, it was plain that those witnesses, to greater or lesser degree, either failed to observe things right in front of them or confused things they did observe or claimed to have seen things that they could not have seen. They appeared to me to be honest witnesses doing their best to recall and convey what they (thought they) observed. It is therefore a graphic and powerful reminder about the fallibility of human perception and/or memory, and of the tendency to inadvertent reconstruction, particularly in fast-moving and shocking circumstances such as these.

41 In any event, there was no dispute that the stabbing to the chest (which penetrated to a depth of about eleven-and-a-half centimetres) also pierced through Mr Dimovski's heart and into his liver. Nor was there any dispute that, a short time later, he died as a result of that stab wound. This was despite the quick intervention of his friends (who, under instruction from a triple-zero operator, applied pressure to his wounds) and, later, treatment by paramedics.

42 According to the pathologist Dr Victoria Francis, the stab wound to Mr Dimovski's arm did not make any significant contribution to his death. Instead, it was the stab wound to the chest that caused death. She also opined that, employing a scale of mild, moderate and severe force, at least moderate force would have been required to inflict each wound with the knife.

43 Within seconds of their entry to the kitchen, the six persons (including the three accused) filed out through the back door and into the carpark. It was clear, from the CCTV footage, that Mr Novakovic could be seen discarding the knife he used to stab Mr Dimovski. That knife was found later between two parked cars.

44 The Crown case against Mr Novakovic was that he stabbed Mr Dimovski to the chest, thereby killing him, and that he did so with the intention of killing him or of causing at least really serious injury. Upon arraignment before the jury panel, Mr Novakovic pleaded not guilty to the charge of murder but guilty to manslaughter. The only element in issue was murderous intent and the related point concerning the circumstances in which the stabbing occurred.

45 In addition to the fact, circumstances and location of the fatal stabbing, the Crown relied on other evidence to prove murderous intent. That evidence included the animus Mr Novakovic had towards Mr Dimovski as demonstrated by his behaviour during the affray; his anger in kicking the door and declaring he was going to kill "him"; and his decision to enter the kitchen assaulting Mr Dimovski.

46 There was no issue from Mr Novakovic that, if the jury were not satisfied beyond reasonable doubt of murder, they should find him guilty of manslaughter. This stance, of course, was reflected in his plea upon arraignment.

Murder (and manslaughter) against Milan Jovic and Sasa Jovic

47 As intimated earlier, the Crown did not allege that either Milan Jovic or Sasa Jovic personally committed any act that caused Mr Dimovski's death.

48 Instead, it was alleged that Milan Jovic, more than once, punched, kicked or stomped on Mr Dimovski, or tried to do so, when positioned immediately to Mr Novakovic's left, while the latter was assaulting and then stabbing Mr Dimovski at the front of the bench in the kitchen. (While Milan Jovic's face could not be seen on the CCTV, there was no dispute that he was clearly identifiable by his distinctive red hooded jacket.)

49 It is also alleged that, at the same time, Sasa Jovic was further to his brother's left and brandishing a knife (that he had picked up from a bench to his left) while Mr Novakovic assaulted and stabbed Mr Dimovski. (I should point out that the person alleged to be Sasa Jovic at this point could not be identified directly. In fact, all that could be seen on the CCTV footage was the picking up and brandishing of the knife by a person who may have been wearing a dark cap or had dark hair. Another of the six people inside the kitchen at the relevant time, like Sasa Jovic, wore a black cap. It was also alleged that, only seconds after leaving the kitchen, Sasa Jovic could be seen in the carpark discarding a knife, although I think that was difficult to make out. A knife was also found in that vicinity of the carpark later. It was this evidence, in combination, together with a process of elimination, that was said to have amounted to proof that Sasa Jovic was in fact the person brandishing the knife in the kitchen while to the left of Milan Jovic.)

50 Based on this alleged behaviour, together with other evidence, the charge of murder was put against the Jovic brothers, as was the alternative of manslaughter, on the basis that each was "involved in the commission of the offence" and thereby should be "taken to have committed [that] offence", within the meaning of s 324(1) of the Crimes Act. In particular, it was alleged that each man was involved in the commission of murder (or manslaughter) because, first, pursuant to s 323(1)(a), he intentionally assisted or encouraged Mr Novakovic to murder Mr Dimovski (or to commit manslaughter) and, alternatively, pursuant to s 323(1)(b), he intentionally assisted or encouraged Mr Novakovic to assault Mr Dimovski and was aware that it was probable that Mr Novakovic would murder him (or commit manslaughter) in the course of carrying out the assault.

51 As I have indicated, however, I accepted the defence submission that Sasa Jovic had no case to answer on either murder or manslaughter. In short, this was because, on the evidence, it was not open to exclude the reasonable possibility that his alleged act of assistance or encouragement to Mr Novakovic to stab or to assault Mr Dimovski (i.e., the brandishing of the knife) did not occur until a second or two after Mr Novakovic must have administered the fatal stab wound to the chest. Accordingly, verdicts of not guilty were entered.

52 On the other hand, I accepted the Crown submission that there was a window of opportunity - albeit only a second or so - for Milan Jovic to become aware that Mr Novakovic had armed himself with a knife and intended to use it to stab and murder Mr Dimovski (or to commit manslaughter), and for Milan Jovic to assist or encourage Mr Novakovic to do so (by continuing with his kicking, etc), before the fatal stabbing to the chest. Accordingly, there was a case to answer on murder and manslaughter, albeit that (in each case) it ended up being confined to the basis alleged under s 323(1)(a). As I have said, however, the jury found Milan Jovic not guilty of both murder and manslaughter.

53 Mr Novakovic was arrested and charged on 10 September 2017. He has remained in custody ever since.

54 Milan Jovic and Sasa Jovic were arrested and charged a month or so later, on 18 October 2017. They too have remained in custody ever since.

55 I turn now to the victim impact statement of Mrs Snezana Dimovska, the mother of Deni Dimovski. Mrs Dimovska attended the trial. Her statement was read out by Ms Warren, with whom Mr Doyle appeared for the Crown.

56 Before turning to that statement, I shall say a few things about Mr Dimovski. He was born in Macedonia and was aged 32 at the time of his death. He was a Macedonian citizen who had lived in Australia on a working holiday for approximately three years prior to his death. His mother, father and sister live in Macedonia. Members of his extended family live in Australia and he spent time with them whilst living here.

57 In her statement, Mrs Dimovska explains how sad and painful it is for the family to have lost their son and brother. I think it is fair to say that all that she says in that statement is related to the death of her son, which is understandable.

58 When I sentence Mr Novakovic, I shall go into Mrs Dimovska's victim impact statement in more detail, where it will have more direct relevance.

59 In the present case, however, since Milan Jovic and Sasa Jovic were acquitted of both murder and manslaughter, I must not sentence them in any way for the effects of any such crime on Mr Dimovski or his loved ones. Nor must I sentence them for any assault or injury that was perpetrated on Mr Dimovski after they entered the kitchen, even though they entered with an intent to commit an offence involving an assault on Mr Dimovski.[8]

60 Instead, in so far as victim impact is concerned, I am confined to considering the impact upon him and his loved ones for the crimes of affray and aggravated burglary. The latter offence was complete upon entry to the kitchen. That said, as I mentioned on the plea, on each occasion the CCTV footage of the affray and the aggravated burglary was played, Mrs Dimovska's distress at the violence directed at her son - i.e. the actual violence in the affray and intended violence in the aggravated burglary - was palpable. Of course, the mere thought of one's son or brother being treated in those ways would be distressing.

61 Thus, in that way, and to the extent that any such distress arising from those crimes might be inferred from the terms of the victim impact statement itself, I take that distress into account in sentencing Milan Jovic and Sasa Jovic for affray and aggravated burglary.

62 I wish to add this. There is nothing this Court can say or do that will heal Mr Dimovski's family's grief and pain. The sentence I must impose is not a reflection of the worth of Mr Dimovski's bodily integrity. Nor, if I were dealing with his murder at this point, would it be a reflection of the worth of his life - as if anything so precious could ever be valued in any event. Rather, the sentences I am about to impose for affray and aggravated burglary are a reflection of a large number of factors which I am required by law to take into account, only one of which is the impact on victims.

63 I turn now to the nature and gravity of the offences.

64 Affray at common law carries a maximum penalty of five years' imprisonment.[9] It is a crime the seriousness of which can vary very significantly in its gravity.

65 Milan Jovic's particular offence involved some serious features. He threw multiple punches at Mr Dimovski, as well as a kick. Further, at the point he was involved, he was one of three men attempting, in a rather cowardly fashion, to assault Mr Dimovski as he sought valiantly to defend himself. The fighting was ferocious. It also occurred in the presence of numerous others, including women and children. By definition, the jury have found that the fighting constituting this affray was such as to cause any person of reasonable firmness who might witness it to be terrified. In my estimation, the behaviour of Milan Jovic comfortably met that test.

66 On the other hand, the fighting was not started by Milan Jovic. Further, it appears that Mr Dimovski was keen to fight, and from a time before Milan Jovic was involved, but that was perhaps because of things that were said or done to him or others earlier on in the fracas. He was, after all, the organizer of the event, and no doubt felt a responsibility to attempt to quell any controversy. Fortunately, the blows seem to have been largely ineffective, in the sense that there do not appear to have been any injuries caused, or at least no significant injuries. Milan Jovic did not use or seek to use any weapon, unlike his confederate Mr Novakovic, who wielded a bottle (although it is not clear to me whether it connected). The fighting in which Milan Jovic was involved was also only relatively brief, lasting a matter of seconds. It was also unplanned.

67 When sentencing Stefan Obradovic, Daniel Obradovic and Stephen Motta for their offences of affray arising out of the whole of the violence that occurred in the dining room (albeit with differing levels of direct involvement by each of those three offenders), Champion J "assess[ed] the gravity of the affray as mid to low range in seriousness".[10] That assessment was also complicated[11] by the fact that, in the case of Stefan Obradovic, he was charged additionally with two counts of assault, one against Deni Dimovski and one against Pece Petrovski.[12]

68 While Milan Jovic's instance of affray appears to involve a more confined aspect of the overall fighting than that which was considered by Champion J, it nevertheless involved one of the more serious components of that total behaviour. Thus, to the extent that classifications like this matter, I regard this affray as tending a bit more towards the lower end of the mid to low range of gravity spoken of by his Honour.

69 I turn to Sasa Jovic. His particular offence of affray also involved some serious features. He threw an overarm swing towards Mr Dimovski's head from behind while holding a bottle, albeit I do not think the blow connected with his head. Further, the bottle flew away harmlessly. This action also occurred in the presence of numerous others, including women and children. By definition, the jury have found that this aspect of the fighting was such as to cause any person of reasonable firmness who might witness it to be terrified.

70 On the other hand, in my opinion, this instance of affray can only just have met that test. Mr Sheales, who appeared for Sasa Jovic, expressly refrained from submitting that the jury's verdict might be interpreted as allowing for a belief in the need for defensive action but that the response was not a reasonable one. That, however, does not deny the fact that the offence involved only one motion, albeit with a bottle in hand, when Mr Novakovic was being attacked by Mr Dimovski and another. The blow did not connect in any meaningful way, if at all, and was therefore ineffective. The behaviour lasted for about two seconds, if that. And it was unplanned. Nor was Sasa Jovic the instigator of the initial fighting. His action came towards the very end of the whole episode. And he desisted immediately after his single action.

71 In my view, his offence is significantly less serious than the affray committed by Milan Jovic. It is also substantially less serious than the instances of affray and assault combined to which Stefan Obradovic pleaded guilty. Overall, I think it is an example of affray towards the lower end of the spectrum of gravity.

72 I turn now to aggravated burglary, which carries the very high maximum penalty of 25 years' imprisonment.[13] It is also a crime the seriousness of which can vary very significantly in its gravity.

73 Mr Doyle described the offence as a "confrontational" aggravated burglary. While that may be strictly correct, he also accepted that one should be careful in labelling offences in such a way and that, instead, each offence must be dealt with according to its own particular facts. He nevertheless referred to the applicable considerations discussed by the Court of Appeal in DPP v Meyers.[14] Thus, speaking of Milan Jovic's offence, the following could be found by reference to those criteria:

• First, given his assaulting behaviour when inside the kitchen, I am satisfied that Milan Jovic's intention at entry was to assault Mr Dimovski (as distinct from, say, an intention to steal or damage property), which intention carried over from the affray. However, I am not satisfied that he had any intention to cause injury to Mr Dimovski at the point of entry.

• Second, Mr Novakovic's mode of entry was to assault Mr Dimovski as he pushed in through the threshold, after which Milan Jovic followed (perhaps with a bit of pushing as well).

• Third, no weapon was carried (by either him or his co-accused).

• Fourth, Milan Jovic entered in company with his co-accused.

• Fifth, the entry occurred in the early hours of the morning, albeit it was at a late-night establishment. That said, he had been told to leave, or would have understood that he was no longer welcome, and yet he re-entered unlawfully through a rear door anyway.

• Sixth, Milan Jovic knew that Mr Dimovski was inside the kitchen, and would have expected that others who remained in the restaurant might be there too.

• Finally, given his conduct during and after the affray, Mr Dimovski would not have been frightened of Milan Jovic but he would have expected an attempt to assault him.

74 Mr Doyle submitted that it was a "powder-keg situation", although he was careful to submit that the behaviour that occurred inside the kitchen was not to be factored into the sentence. He also pointed out that the woman who exited just before the accused entered would have been frightened by their behaviour, although there was no violence directed at her.

75 On the other hand, Mr Doyle accepted that this was different from a planned aggravated burglary with violence on residential premises. He also accepted that there was an element of unhappy coincidence in the sense that Mr Dimovski was at the back door when the accused were in the vicinity heading towards the carpark. Had the carpark been opposite the front of the restaurant, there would have been no aggravated burglary.

76 Further still, I accept the submissions of Mr Dunn QC, who appeared for Milan Jovic, including the submission that Mr Dimovski was willing to fight when at the door of the kitchen. His behaviour up to that point indicated his anger and aggression. Also, he had taken cocaine, which may have made him more aggressive than otherwise. I also accept that there was no meaningful planning for this offence. Instead, Mr Novakovic, having, in effect, come across Mr Dimovski again, resumed his intention to assault at the threshold of the kitchen, and Milan Jovic followed him inside. It was only happenstance that the fighting resumed at the kitchen door and then inside. Had Mr Dimovski been a step or two outside the kitchen door and in the carpark, the fighting is likely to have resumed there with Mr Novakovic, and there would have been no aggravated burglary.[15] While Milan Jovic accepts that he intentionally entered the kitchen, the fact is that the fray spilled inside once Mr Novakovic and Mr Dimovski confronted each other at the door.

77 Overall, while the offence had some serious features, I regard this instance of aggravated burglary as falling towards the lower end of the spectrum of gravity of instances of the offence involving an intention to assault a person inside a building or part thereof.

78 Most of the same points, with necessary adaptation, apply to the aggravated burglary committed by Sasa Jovic. While he was the one who went to the door and motioned others to come over and while he is older than his relatively youthful brother, I think that, on balance, his offence is less serious than Milan Jovic's offence and is deserving of a marginally lesser sentence.

79 There are three inter-related reasons. First, I am not satisfied that, at the point of entry, Sasa Jovic intended to assault Mr Dimovski personally. Instead, his intention was confined to encouraging or assisting Mr Novakovic do so. Secondly, I am not satisfied that he intended that Mr Dimovski be assaulted much at all. Thirdly, Sasa Jovic's behaviour as depicted in the CCTV footage generally indicates to me that he was a bit of a follower of the other two on the evening in question. He did not become involved in the affray until he saw that Mr Novakovic appeared to be in trouble. He did not engage in any violence or threatening behaviour out the front of the restaurant. And he did not engage in any actual violence when inside the kitchen. True it is that he brandished the knife. But I cannot exclude the reasonable possibility that he did that only to ward off the three men on the other side of the bench. It follows that I am not satisfied that he was as determined as his brother, nor anywhere near as determined as Mr Novakovic, to engage in further violence. Nor am I satisfied that he intended violence as serious as each of them intended.

80 Otherwise, I regard Sasa Jovic's aggravated burglary as having the same serious features as his brother's offence but that it also falls even further towards the lower end of the spectrum of gravity of instances of the offence involving an intention to assault a person inside a building or part thereof.

81 I turn now to the factors in mitigation on which the two accused relied.

82 Before doing so, however, I shall set out a brief summary of each brother's background as relayed to the Court by counsel.

83 Milan Jovic was aged only 21 at the time of the offending, and is now 23.

84 Before his arrest, he lived with his mother and older brother Sasa.

85 His parents were separated when he was aged 15 and later divorced.

86 He worked part-time when at school and has been employed ever since he left school. He was working as an apprentice electrician at the time of his arrest. Fortunately, his employer is willing to take him back as an apprentice.

87 He will return to live with his family upon his release.

88 Sasa Jovic was aged 29 at the time of the offending, and is now 30.

89 He, of course, has the same family history as his brother Milan. In addition, however, he was born in Serbia in 1988 and came to Australia as a child in 1995.

90 He went to Year 11 at school. He was not academically minded but was good with his hands.

91 Since leaving school, he has worked for a plumbing firm and otherwise in construction and operating earthworks machinery.

92 Upon his release, he too will return to live with his family.

93 The first factor in mitigation is that neither accused has any prior convictions and is otherwise of good character.

94 Milan Jovic has a prior appearance in the Children's Court in 2013 for possessing a controlled weapon. He was only 17 at the time and received a good behaviour bond for 12 months, without conviction.

95 Sasa Jovic has a prior appearance in the Magistrates' Court in 2011 for careless driving. He was 22 at the time and received an undertaking to be of good behaviour, without conviction.

96 Mr Doyle conceded that neither of these appearances is relevant to sentence. I agree.

97 Given their work histories and an absence of prior convictions, I am satisfied that each accused is otherwise of good character.

98 The second factor in mitigation is that, while neither accused has the benefit of a plea of guilty, each trial on the charges of affray and aggravated burglary was run sparely, with sensible concessions.

99 In the case of Milan Jovic, these charges were hardly contested. He admitted all of the elements bar the "terrified" element of affray and the intention to assault at entry for the purposes of aggravated burglary. Even those elements were not pressed with much vigour.

100 The case of Sasa Jovic was conducted in much the same way, although the equivalent elements were fought more seriously. That said, there was a particularly strong basis for pursuing the "terrified" element of affray in his case. Defence of another was also raised, but the evidentiary basis for it plainly arose from the CCTV footage.

101 The third factor in mitigation applies only to Milan Jovic. At 21, he is a relatively youthful offender. The law tends to focus more on rehabilitation with younger offenders. Given his lack of prior convictions and the nature of the offences here, I think it is appropriate to place emphasis on rehabilitation in Milan Jovic's case.

102 Fourthly, I am satisfied that each accused has strong prospects of rehabilitation. In my view, the absence of prior convictions, their good work histories, their family support, their salutary experience in custody (which I shall come to shortly) and, in Milan Jovic's case, his relative youth all support such findings.

103 Finally, I turn to their experiences in custody as a factor in mitigation. Each accused has spent nearly 20 months in custody with the strain of a murder charge hanging over his head. Further, both have spent their time at Barwon Prison since last October, walking the yards among notorious offenders. I accept that this would be a very salutary experience for any person, let alone relatively young men without any prior convictions.

105 Section 5(1) of the Sentencing Act 1991 (Vic) ("the Sentencing Act") 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

106 In my view, general deterrence, just punishment and denunciation are important sentencing purposes in these cases of affray and aggravated burglary (albeit less so in Sasa Jovic's case of affray). The community should understand that public fighting of the type engaged in by both accused and the unlawful entry to another's property with an intent to assault is behaviour that is denounced by the courts and often will result in a term of imprisonment that reflects the fear engendered and the violation of another's right to the quiet enjoyment of his property. People simply must understand that such behaviour is totally unacceptable.

Specific deterrence and protection of the community

107 Given the absence of prior convictions, their strong prospects of rehabilitation and their salutary experiences in custody, I do not think it is necessary to give much, if any, weight to specific deterrence or protection of the community. In fact, I think it is very unlikely that either brother will offend in this way in the future.

108 In my view, rehabilitation remains an important consideration. This is particularly so because both accused have strong prospects of rehabilitation and, in Milan Jovic's case, because of his relative youth.

109 I also think it is important to recognize the interplay between rehabilitation and protection of the community. Each accused will be returning to the community. It is therefore in the community's interests that such prospects of rehabilitation as each man has be maximized, and that he is not crushed, so that, upon his 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 as strong as they can be.

110 Section 5(3) of the Sentencing Act, relevantly, provides that "a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed". This provision reflects the fundamental common law principle of parsimony. I have applied this principle when considering the appropriate sentences in this case.

111 The law also requires that I have regard to current sentencing practices.

112 In this connection, I have considered sentencing statistics for affray[16] and aggravated burglary[17] as well as several decisions concerning these offences at first instance or on appeal, including the particular cases to which counsel referred me on the plea.[18]

113 I must also have regard to the principle of parity among co-offenders when imposing sentence.

114 I mentioned earlier that Champion J sentenced Stefan Obradovic, his brother Daniel Obradovic and Stephen Motta on charges of affray. Stefan Obradovic additionally pleaded guilty to charges of assault on Mr Dimovski and Pece Petrovski. Further, it seems that the Obradovic brothers were the instigators of the affray with Mr Dimovski.

115 On these three offenders, his Honour imposed community correction orders ("CCOs"), without conviction, for two years with 100 hours of community work, one year with 100 hours of community work and one year with 75 hours of community work, respectively. But for the pleas of guilty, his Honour would have imposed CCOs, with conviction, of four, two and two years' duration.[19]

116 While these three offenders were either in or in the vicinity of the kitchen immediately after Milan Jovic and Sasa Jovic entered, Champion J made it clear that they were not to be punished for the violence that occurred there.[20]

117 As I have said, I think that Sasa Jovic's offences are each less serious than Milan Jovic's offences, although less so in the case of aggravated burglary. On the other hand, Milan Jovic was a relatively young person at the time of the offending.

118 I have factored all of these competing considerations into the sentences to be imposed.

119 I turn now to the submissions of counsel on sentence.

120 Mr Doyle submitted that, in each case, a total effective sentence of imprisonment with a non-parole period was warranted. He conceded that the fixing of a non-parole period in the vicinity of the period the two accused had already served would not be in error. While he submitted that the total effective sentence ought to be longer than the period already served, he did not submit that I would be in error to fix a prison sentence that effected their immediate release. In the end, he submitted that "they are not far away" - meaning that they should not be required to do much more time in custody.

121 Mr Dunn submitted that his client had spent more than enough time in custody. More particularly, on the one hand, he submitted that, when regard is had to the circumstances of Milan Jovic's offences, his relative youth, the absence of prior convictions, his prospects of rehabilitation and the period spent in custody with a murder charge hanging over his head (the last eight months of which has been at maximum security at Barwon Prison), a prison sentence might not have been imposed for either offence had this matter been dealt with earlier in the absence of an associated murder charge. On the other hand, he conceded, and submitted, that such a sentence should be imposed now, but that, in total, that sentence, at worst, should not exceed the period already spent in custody.

122 Mr Sheales made a similar submission, but added that the sentences on the affray and the aggravated burglary might be measured in days (or a week) and months respectively.

124 In substance, I accept the defence submissions to the effect that each accused has spent more time in custody than the total prison sentence warranted.

125 But for defence counsel's concessions, I would not have been inclined to impose a prison sentence on either offence of affray. Indeed, having regard to parsimony, I do not think such a sentence is even properly open in the case of Sasa Jovic. Plainly, Champion J did not think such sentences were open on the arguably more serious example of affray (coupled with assaults) before him in the case of Stefan Obradovic.

126 I did consider simply convicting and discharging each accused on affray, but I thought that would be an over-correction. Equally, to impose an undertaking to be of good behaviour or a fine or a CCO would be to add unduly to the punishment already received by incarceration. In the end, as will be seen shortly, I have decided that the most appropriate and fairest course is to honour the substance of counsel's submissions-cum-concessions in respect of affray, by fixing a prison sentence in each case, but to direct that that sentence be served concurrently with the sentence on aggravated burglary.

127 The aggravated burglary in each case, however, stands in a different position. While CCOs may have been reasonably open in the minds of some, I think prison sentences are necessary to achieve the applicable purposes of sentencing and the maximum penalty.[21] That said, those prison sentences are a good deal shorter than are commonly imposed for so-called confrontational examples of the offence. This is principally because of the unusual features of these particular offences in each case, of which I spoke earlier, as well as the mitigating factors on which both accused are entitled to rely.

129 On the offence of affray (Charge 1), Milan Jovic is convicted and sentenced to six months' imprisonment.

130 On the offence of aggravated burglary (Charge 2), Milan Jovic is convicted and sentenced to 18 months' imprisonment.

131 While it is strictly unnecessary to do so, for the avoidance of doubt, I direct that the sentence on the affray be served wholly concurrently with the sentence for aggravated burglary, which makes a total effective sentence of 18 months' imprisonment. Ordinarily, I would have directed at least some of the sentence on the affray to be served cumulatively upon the sentence on the aggravated burglary. Instead, I have directed concurrency because, having regard to my view of the relative gravity of the offences committed by Milan Jovic and the dictates of totality (including my concern about even imposing a prison sentence on the affray), I consider that a total effective sentence that exceeded the sentence imposed on the aggravated burglary would breach totality and offend parsimony.

132 While it might be thought unnecessary to do so, I fix a non-parole period of nine months. In my view, a 'straight sentence' - i.e. one without a non-parole period - would have been inappropriate given Milan Jovic's relative youth, his lack of prior convictions and his strong prosects of rehabilitation. The record should reflect that he received a non-parole period, even though he was never given the opportunity to avail himself of release on parole.

133 I declare[22] that, excluding today, 600 days of pre-sentence detention have been served under this sentence.

135 On the offence of affray (Charge 1), Sasa Jovic is convicted and sentenced to three months' imprisonment.

136 On the offence of aggravated burglary (Charge 2), Sasa Jovic is convicted and sentenced to 16 months' imprisonment.

137 Again, while it is strictly unnecessary to do so, for the avoidance of doubt, I direct that the sentence on the affray be served wholly concurrently with the sentence for aggravated burglary, which makes a total effective sentence of 16 months' imprisonment. Ordinarily, I would have directed at least some of the sentence on the affray to be served cumulatively upon the sentence on the aggravated burglary. Instead, I have directed concurrency because, having regard to my view of the relative gravity of the offences committed by Sasa Jovic and the dictates of totality (including my concern about even imposing a prison sentence on the affray in the first place), I consider that a total effective sentence that exceeded the sentence imposed on the aggravated burglary would breach totality and offend parsimony.

138 Again, while it might be thought unnecessary to do so, I fix a non-parole period of eight months. As in the case of Milan Jovic, in my view, a 'straight sentence' would have been inappropriate given Sasa Jovic's lack of prior convictions and his strong prosects of rehabilitation. Further, the record should reflect that Sasa Jovic, like his brother, received a non-parole period, even though he was never given the opportunity to avail himself of release on parole.

139 I declare[23] that, excluding today, 600 days of pre-sentence detention have been served under this sentence.

140 All of this means that Milan Jovic and Sasa Jovic have completed the sentences I have just imposed. They are therefore to be released from the dock immediately.

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[1] Contrary to common law (albeit the maximum penalty for the offence is fixed by statute: see s 320 of the Crimes Act 1958 (Vic)).

[2] Contrary to s 77(1)(b) of the Crimes Act 1958 (Vic).

[3] Contrary to common law (albeit the maximum penalty for the offence is fixed by statute: see s 3 of the Crimes Act 1958 (Vic)).

[4] As will be seen below, Mr Novakovic also inflicted another stab wound to Mr Dimovski's arm, but that wound made no significant contribution to his death.

[5] After the no-case submission by Sasa Jovic succeeded on murder and manslaughter, the Crown took up my invitation to confine their case against Milan Jovic on the same offences to the basis spelt out in s 323(1)(a) of the Crimes Act 1958 (Vic). See further below.

[6] See The Queen v Obradovic & Ors [2018] VSC 805.

[7] See ss 322G, 322I, 322K, 322L & 322N of the Crimes Act 1958 (Vic).

[8] See R v Newman & Turnbull [1997] 1 VR 146.

[9] See s 320 of the Crimes Act 1958 (Vic).

[10] The Queen v Obradovic & Ors [2018] VSC 805 at [29]; see also [3]-[21] (summary of circumstances and individual acts) and [22]-[28] (the nature of the affray, its aftermath and the seriousness of the offending).

[11] It is also complicated by the fact that it appears that the charges of affray against Stefan Obradovic, Daniel Obradovic and Stephen Motta were put pursuant to s 195H of the Crimes Act 1958 (Vic) (The Queen v Obradovic & Ors [2018] VSC 805 at [2]), whereas each affray in the present case was put contrary to common law. The offence in s 195H did not come into operation until 13 September 2017, at which time affray at common law was abrogated by s 195G. The events in question occurred on 9 September 2017.

[12] The Queen v Obradovic & Ors [2018] VSC 805 at [1], [12], [13] & [29].

[13] See s 77(2) of the Crimes Act 1958 (Vic).

[14] DPP v Meyers [2014] VSCA 314; (2014) 44 VR 486 at 498[48].

[16] Sentencing Advisory Council, Sentencing Snapshot: Affray, No 191, June 2016; and SACStat Higher Courts: Affray, 1 July 2013 to 30 June 2018.

[17] Sentencing Advisory Council, Sentencing Snapshot: Aggravated burglary, No 211, June 2018; and SACStat Higher Courts: Aggravated burglary, 1 July 2013 to 30 June 2018.

[18] See, for example, The Queen v Obradovic & Ors [2018] VSC 805; DPP v Meyers [2014] VSCA 314; (2014) 44 VR 486; DPP v Vella & Ray [2014] VSCA 140; DPP v Barnes & Barnes [2015] VSCA 293; and Jiang v The Queen [2019] VSCA 126.

[19] The Queen v Obradovic & Ors [2018] VSC 805 at [69], [75], [80] & [83].

[20] The Queen v Obradovic & Ors [2018] VSC 805 at [9] & [23].

[21] That said, I think it is also important to have regard to the anomalous nature of the very high maximum penalty for aggravated burglary (see, for example, DPP v Barnes & Barnes [2015] VSCA 293 at [1], [2] & [46]-[47]).

[22] Pursuant to s 18 of the Sentencing Act 1991 (Vic).

[23] Pursuant to s 18 of the Sentencing Act 1991 (Vic).