The Queen v Novakovic [2019] VSC 556

2 All three accused were involved in group fighting inside a restaurant in the early hours of the morning. After being ejected and while heading to the carpark to leave, the three entered the rear of the same premises through the kitchen door with assault on their minds. Once inside, Mr Novakovic spontaneously grabbed a knife and stabbed Mr Dimovski twice - once to the chest, which killed him, and once to the arm, which did not contribute to death.

3 The charge of murder was put against Mr Novakovic as a principal who deliberately stabbed and killed Mr Dimovski with murderous intent. Alternatively, it was alleged that Mr Novakovic was guilty of manslaughter by unlawful and dangerous act.

4 It was alleged that the Jovic brothers were beside Mr Novakovic, assisting or encouraging him to stab Mr Dimovski. 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 The charges of affray and aggravated burglary were put against each accused on the basis of individual liability.

6 A jury was empanelled on a joint trial on 2 May 2019. The Crown case closed on 17 May 2019. Subsequently, following submissions from counsel, 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.[4]

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 On 11 June 2019, having heard their pleas in mitigation the Friday before, I convicted and sentenced Milan Jovic to 18 months' imprisonment for aggravated burglary and six months' imprisonment (concurrent) for the affray, and fixed a non-parole period of nine months; and convicted and sentenced Sasa Jovic to 16 months' imprisonment for aggravated burglary and three months' imprisonment (concurrent) for the affray, and fixed a non-parole period of eight months. Since both men had served 600 days (or in excess of 18 months) by way of pre-sentence detention, they were released from prison.[5]

9 Mr Novakovic's plea in mitigation was heard separately on 26 July 2019. It is now my task to impose sentence upon him. I shall 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 impact, 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 In sentencing Mr Novakovic's co-accused, I was satisfied that Milan Jovic intended to assault Mr Dimovski whereas Sasa Jovic intended only to assist or encourage Mr Novakovic to do so.[8]

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 The three friends or acquaintances of Mr Dimovski 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. Instead, 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.

48 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.

49 However, since Milan Jovic and Sasa Jovic were found not guilty of both murder and manslaughter (by judicial direction and by jury verdicts respectively), I shall say no more about the allegations against them in these reasons.[9]

50 Mr Novakovic was arrested and charged on 10 September 2017. He was attempting to leave Australia. He has remained in custody ever since.

51 Milan Jovic and Sasa Jovic were arrested and charged a month or so later, on 18 October 2017. They too remained in custody but were released on the day of their sentencing.

52 I turn now to the victim impact statement of 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.

53 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.

54 In her statement, Mrs Dimovska explains how sad and painful it is for her and her family to have lost their loved one. Her enjoyment of life has been taken away. She says that she was so shocked and saddened when told of her son's death that she fell to the ground, went into a coma and was taken to hospital. Without her son, her family's home feels empty and yet full of sadness. She feels she will never get over the loss.

55 Mrs Dimovska found it devastating and painful to see the CCTV footage of her son covered in blood, his mouth agape and his tongue hanging out. She has flashbacks, is unable to sleep and feels tired all the time. She says she feels like killing herself.

56 She visits her son's grave daily. This makes her sad and depressed, but she feels she must do this to honour her son's memory.

57 Mrs Dimovska is also concerned about the effects of her son's death on her daughter and her husband. Her daughter cries every day and cannot understand why her brother was killed. Mrs Dimovska fears that her husband is so badly affected by the loss that he will not be able to care for her and her daughter much longer.

58 Mrs Dimovska explains that another sadness is that she and her husband have lost the hope of having grandchildren, as their daughter is sick and, I assume, unable or unlikely to have any children.

59 The victim impact statement is a powerful and moving document. I have taken into account the impact on Mrs Dimovska and her family in sentencing, particularly on the murder.

60 I wish to add this. I appreciate that 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 his life - as if anything so precious could ever be valued in any event. Rather, the sentence I am about to impose is 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.

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

62 Affray at common law carries a maximum penalty of five years' imprisonment.[10] It is a crime the seriousness of which can vary very significantly from case to case.

63 Mr Novakovic's particular offence involved some serious features. He threw multiple punches at Mr Dimovski, including a couple while armed with a bottle (although it is not clear whether the bottle connected). 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. A relatively close-up view from the CCTV camera at one point shows, at least to my eye, that Mr Novakovic was both angry and determined to strike Mr Dimovski. Indeed, 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 Mr Novakovic comfortably met that test.

64 On the other hand, the fighting was not started by him. Further, it appears that Mr Dimovski was keen to fight, and from a time before Mr Novakovic was involved, but that was perhaps because of things that were said or done to him or others earlier on in the fracas. Mr Dimovski was, after all, the organiser 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. The fighting in which Mr Novakovic was involved was also only relatively brief, lasting a matter of seconds. It was also unplanned.

65 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".[11] That assessment was also complicated[12] 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.[13]

66 While Mr Novakovic's instance of affray (like Milan Jovic's) 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.

67 In my view, this offence is a tad more serious than the affray committed by Milan Jovic, principally because he swung a bottle, which is a dangerous thing to do, even if ineffective in this case. On the other hand, it seems to be 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 objective gravity.

68 I turn now to aggravated burglary, which carries the very high maximum penalty of 25 years' imprisonment.[14] It is also a crime which can vary very significantly in its gravity.

69 On the plea hearing concerning Milan Jovic and Sasa Jovic, 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.[15] Thus, speaking of Mr Novakovic's offence, the following could be found by reference to those criteria. First, given his assaulting behaviour at the point of entry, I am satisfied that Mr Novakovic's intention at that time was to assault Mr Dimovski (as distinct from, say, an intention to steal or damage property), which intention carried over from the affray. While I am not satisfied that he had any intention to cause serious injury to Mr Dimovski at the point of entry, the punches he threw at that time, the violence he used and the anger on his face earlier during the affray, and the behaviour in which he engaged once inside the kitchen (before the grabbing of the knife) combine to persuade me that he nevertheless had a very hostile intent towards Mr Dimovski as he entered the kitchen.

70 Second, Mr Novakovic's mode of entry was to assault Mr Dimovski as he pushed in through the threshold.

71 Third, no weapon was carried (by either Mr Novakovic or his co-accused).

72 Fourth, Mr Novakovic entered in company with his co-accused. That said, the co-accused followed Mr Novakovic, who appeared so intent on Mr Dimovski that it is not clear to me that he even noticed them.

73 Fifth, the entry occurred in the early hours of the morning, albeit it was at a late-night establishment. That said, Mr Novakovic 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.

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

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

76 Again, on the earlier pleas of the co-accused, Mr Doyle submitted that it was a "powder-keg situation", although he was careful to concede that the behaviour that occurred inside the kitchen was not to be factored into the sentence for aggravated burglary. He also pointed out that the woman who exited just before the three accused entered would have been frightened by their behaviour, although there was no violence directed at her.

77 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.

78 Further still, the submissions made by Mr Dunn QC, who appeared for Milan Jovic on his plea, which I accepted, should apply to the benefit of Mr Novakovic as well. Mr Dunn submitted 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. As noted a moment ago, 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 (and, I expect, no murder).

79 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 objective gravity of instances of the offence involving an intention to assault a person inside a building or part thereof.

81 Murder is the most serious offence in the criminal calendar. In this State, it is predominantly a common law offence, the maximum penalty for which is set by statute at imprisonment for life.[16] Like most offences, however, murder is also a crime the gravity of which can vary very significantly from case to case. That said, even offences towards the lower end of the spectrum of gravity are, of course, still very serious by nature when compared with offences such as affray and aggravated burglary.

82 This offence of murder had some serious features, including the following. First, like many murders, it resulted in the cutting down of a young man who was loved by his family and friends and was in the prime of his life, and therefore has caused great sadness to many and seems such a tragic waste. As is apparent from the victim impact statement of Mrs Dimovska, to have her son (even of adult years) predecease her and her husband is a terrible thing. It must be all the worse when the cause of death is murder.

83 Secondly, Mr Novakovic used a dangerous weapon to stab Mr Dimovski to a vulnerable part of the body - namely, the upper chest region. In particular, the knife ended up piercing though his heart and into his liver, no less.

84 Thirdly, that he was stabbed not once, but twice, in a vital area adds to the culpability of Mr Novakovic's conduct, even though one of the two wounds was not fatal.

85 Fourthly, Mr Dimovski was on his back, vulnerable and more or less defenceless against Mr Novakovic at the moment that he was fatally stabbed. While Mr Dimovski's friends were nearby, they were not in a position to help at the critical time. Instead, there were about six people on Mr Dimovski's side of the kitchen bench, all of whom would have appeared to be against him, which must have magnified his feelings of vulnerability. In saying that, I recognise that Mr Dimovski had shown himself to be a determined and fearless character earlier when in the midst of the affray, and again when confronted at the kitchen door. But this was different. One can only hope that, because the stabbing happened so quickly, Mr Dimovski did not really appreciate what was coming or what had just happened.

86 Fifthly, as angry as Mr Novakovic may have been about what had happened in the restaurant, and as drunk as he may have been, there was simply no justification for taking his anger out on Mr Dimovski again, forcing him onto the kitchen floor and stabbing him.

87 Finally, while panic is understandable, Mr Novakovic did himself no credit in attempting to flee the country after these events.

88 On the other hand, there are other factors that lessen the gravity of the offence, including the following. First, while the stabbing was self-evidently a very dangerous thing to do, I am not satisfied that Mr Novakovic intended to kill Mr Dimovski. Instead, the spontaneity of the grabbing and use of the knife, the number of stab wounds and their position (dangerous as they were) vis-à-vis the obvious movement of Mr Dimovski at the time of the stabbing and the flurry of activity that was occurring (including the possible bustling of Mr Novakovic in a confined space), the way in which he can be seen moving the knife downwards - all of these things, in combination, suggest to me an intention to cause really serious at the crucial time, not an intention to kill.

89 While there will be occasions in which the distinction between an intention to kill and an intention to cause really serious injury is a distinction without a (sentencing) difference, this is not such a case. All else being equal, to decide to take another's life is a more heinous and culpable thing to do than to decide to cause another really serious injury. Mr Novakovic did not decide to end another's life.

90 Secondly, as I have just alluded to, that decision was entirely spontaneous. While it is clear that Mr Novakovic wanted to assault Mr Dimovski as he entered and when inside the room, it is equally clear that he had no weapon when he entered and that there was no plan to use a knife. Instead, as can be seen on the CCTV footage, when crouched over Mr Dimovski, Mr Novakovic glanced to his right, saw the container of utensils, grasped something from the container (which turned out to be a long knife), and immediately used it to stab downwards in a jabbing motion, which must have been the fatal blow.

91 As grave as this example of murder is, many far more serious examples of the offence are encountered in practice. This particular offence lacks some of the more serious aggravating features that would place it in the upper ranges of objective gravity. Equally, given the factors mentioned earlier, it is hardly down at the lower end of the gravity spectrum. Overall, while precision in description is difficult to achieve, if not impossible, I would place this instance of murder around or just below the mid-range of objective gravity.

92 The foregoing assessment excludes an account of Mr Novakovic's personal and mitigating factors, to which I turn now.

93 Before doing so, however, I shall set out a summary of his background as relayed to the Court by Mr Mandy, who appeared for Mr Novakovic.

94 Mr Novakovic was born in Petrovac, Bosnia. His family were Serbians living in Bosnia. Civil war broke out in 1990. The family left Bosnia for Belgrade, Serbia, when Mr Novakovic was aged about seven or eight.

95 Primary school was like an army base. They lived close to the war zone. Soldiers would surround the school armed with machine guns. When the children played, they would find ammunition and bomb shells. Armoured trucks were regularly driving around their area. There were regular shootings and bombings, mainly at night time, which would light up the sky.

96 Mr Novakovic's father was a professional soldier. He was shot in the head and killed on 7 January 1995, which was Orthodox Christmas. Mr Novakovic was only six years old. Army officials attended their home to inform his mother of the killing.

97 His mother then made the decision to move the family for safety reasons. Mr Novakovic would be woken at night by sounds of heavy gun fire and would hide under the bed. While he eventually got used to it, others did not. A neighbour, for example, committed suicide.

98 When escaping their village, Mr Novakovic saw three dead bodies. The family travelled by tractor to a refugee camp. The borders were closed and no one was allowed to leave the country. They stayed in a big warehouse, which was cramped. People from the Red Cross would come and drop off food. They stayed there for two months. His mother then took the family to Derventa, where they remained for six months, and then to Belgrade to live with an uncle and aunt, where they stayed for another year.

99 When Mr Novakovic was aged eight or nine, the family came to Australia on a refugee visa. They stayed with cousins in St Albans for six to nine months.

100 Initially, Mr Novakovic found it difficult to assimilate, as he did not speak any English. There was bullying at school by other pupils during the two years it took him to learn English, but it continued thereafter because he still had a heavy accent.

101 Mr Novakovic met his co-accused at the language centre. He and his family formed friendships in the local Serbian community.

102 His mother got a job delivering newspapers. Mr Novakovic would help her. For about 18 months, after school, they would walk around delivering newspapers together. After saving some money, his mother organised a private rental in St Albans. She then got a job at a factory.

103 At 13, Mr Novakovic picked up a job at an IGA supermarket. He worked there for 11 years part-time, four to five days per week, from 4:00 p.m. until 11:00 p.m.

104 He completed Year 10 at St Albans Secondary College and then commenced a computer course.

105 Ultimately, he secured a full-time job with Toll Express, which he held for five to six years. He did this while also working at IGA. He left Toll in 2015.

106 From 2015 to 2017, he worked in plastering, rendering and painting at Elite Construction.

107 In 2015, he bought a home in Caroline Springs. He was the 'man of the house' and was the major financial contributor to the household, which included his mother, his sister and her husband and children. The mortgage is being paid from his savings. The Director of Public Prosecutions obtained a restraining order on that home and his bank account for the purposes of a possible application for compensation .

108 Mr Novakovic has never received any psychological treatment, and has no issues with drugs. Testing in prison has returned negative results for drug use.

109 In the two to three months prior to his arrest, he was in the process of establishing an excavation and tipping business. He had bought a prime mover truck for $246,000, a tipper body for $38,000 and a dog trailer for $96,000. He had obtained a loan of $160,000 from ANZ Bank. The plan was that he would work the night shift and his brother-in-law the day shift. The loan was cancelled on his arrest and he lost his deposit.

110 He is in a relationship with a young woman, who continues to support him. Before his incarceration, they were hopeful of having children.

111 His mother visits him in custody once a week. His sister visits every two to three months, as she gave birth to a second child only six or seven months ago.

112 Mr Novakovic has used his time on remand well. He has done whatever courses he can. He is currently enrolled in two. The first is a construction course, of which he has only three modules left to complete his Certificate 1. He has been doing that course for over a year and, at the time of the plea, had only a little while left to complete it. The second is an engineering course. Again, he has been undertaking the course for over a year, and is due to complete it in about six months. Also, he is working as a factory billet, for which he is paid $35 per week. He recently signed up to work as a peer listener, which involves talking to other prisoners who are going through difficult times. There have been no incidents while in custody.

113 Mr Novakovic was assessed by a neuropsychologist Mathew Staios. His report, which is before this Court, details Mr Novakovic's psychological and intellectual functioning. In Mr Mandy's submission, this provides some context to his behaviour and offending. There are some intellectual deficits, and significantly there is a finding of a lack of consequential thinking and emotional regulation, which is likely to worsen when alcohol is consumed. These neuropsychological deficits have not previously been noted.

114 I turn now to the particular factors in mitigation.

115 First, while there is one prior matter of more significance than others, Mr Novakovic has a rather limited criminal history for one convicted of such a serious crime as murder.

116 In December 2010, he was placed on a community based order ("CBO") for 12 months, without conviction, for affray. The offence happened when he was only 20. Mr Mandy explained that Mr Novakovic, while in drink, punched someone in the course of an affray.

117 In March 2013, he was convicted and fined for making and using a false document, which offending breached his CBO. Mr Mandy explained that Mr Novakovic forged a medical certificate to explain missed appointments on his CBO when he had gone to work instead. While it is not a lawful justification or excuse, it is perhaps understandable why he might have committed such an offence given his family's particular circumstances and the importance which Mr Novakovic places on his family's welfare.

118 In August 2014, he was convicted and placed on a CBO for six months on charges of resisting police, driving dangerously and driving without a number plate.

119 Of those matters, only the affray has any potential significance to sentencing in this case, for the obvious reasons that it is an offence of violence and that he is now to be sentenced for offences of violence, including another affray. On the other hand, the offence was committed a long time ago, when Mr Novakovic was only 20. Thus, I think it is a prior appearance of some, but limited, significance.

120 The second factor in mitigation is that the character references show that Mr Novakovic has some very positive character traits.

121 For example, he is described as loving, caring, kind, polite and generous; as one who is big-hearted, uncomplaining and always willing to make sacrifices to help his family; as hard-working and having a strong work ethic; as loyal, honest and reliable; as a good human being, with honour and integrity; and as ready to accept responsibility for his actions. Two of the referees noted how he would buy food for a homeless man regularly. Several of the referees observed how dearly he values his family and how, from a very young age, he has taken on being 'the man of the house' by working in multiple jobs to assist in ensuring their financial security.

122 These references - while, in some cases, acknowledging his prior appearance for affray - also describe the present offending as out of character for the person they have come to know.

123 Thus, while Mr Novakovic hardly has an unblemished record, it is plain that he is also a person with many positive features, which augurs well for his rehabilitation.

124 The third series of factors in mitigation is that Mr Novakovic entered some pleas of guilty and otherwise very much narrowed the issues to be decided by the jury. In particular, he:

1. pleaded guilty to aggravated burglary before the jury panel and indicated he would do so prior to trial;

2. pleaded guilty to manslaughter before the jury panel and had offered such a plea (instead of to murder) prior to the committal; and

3. otherwise ran the trial on the charges of affray and murder sparely, with sensible concessions.

125 The plea of guilty to aggravated burglary is a significant factor in mitigation in and of itself. The plea represents complete acceptance of responsibility for that offence and a willingness to facilitate the course of justice. The Crown also was relieved of the need to prove that charge, although that may not have been too difficult on the evidence.

126 The plea of guilty to manslaughter was, in some ways, even more significant, for it meant that the only element of murder in issue at trial was whether Mr Novakovic possessed murderous intent when he delivered the fatal blow. It is also significant in that it shows acceptance of responsibility for killing a man unlawfully, albeit not an acceptance of murder. Again, this very much narrowed the factual matters the Crown needed to prove or rebut at trial.

127 Finally, the affray was hardly contested. Mr Novakovic admitted all of the elements bar the "terrified" element. Even that element was not pressed with much vigour.

128 All of these concessions ensured that the trial was conducted very sparely, which is to Mr Novakovic's credit.

129 The fourth factor in mitigation is that I am satisfied that Mr Novakovic is genuinely remorseful for his crimes, including the murder.

130 While his initial behaviour was to attempt to flee the country after the offending, which might be thought to be inconsistent with remorse, many of his actions since then have indicated that he is indeed very sorry for what he has done. First, there are his pleas of guilty and the related choices he made to have the trial run sparely. While it is true that some aspects of the case against him were strong, that, in my experience, does not always prevent an accused from putting the Crown to its proofs. Many a more powerful case on murderous intent has failed.

131 Second, the character references are replete with observations of palpable remorse. These references, and the observations contained in them, were unchallenged. I accept them.

132 Thirdly, Mr Novakovic penned what I think are heartfelt and genuine letters of apology to Mrs Dimovska and to the Court for his actions.

133 In my view, these things indicate a man who is truly sorry for what he has done. What is more, the observations of Mr Novakovic by others, and his own letters of apology, show that he is someone who is capable of understanding - and feeling - the plight of others, including Mrs Dimovska and her family and friends.

134 The fifth and final factor in mitigation is that I am satisfied that Mr Novakovic has strong prospects of rehabilitation. In my view, his limited criminal history, his positive character traits, his pleas of guilty, his genuine remorse, his strong work history, his behaviour and efforts in prison, his lack of substance abuse problems and his family support all contribute to and compel such a finding.

136 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.

137 In my view, general deterrence, just punishment and denunciation are sentencing purposes that must be given weight in these cases of affray and aggravated burglary, although not the same weight as in murder, which I shall come to shortly. The community should understand that public fighting of the type engaged in by Mr Novakovic 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.

138 Despite his prior appearance for affray, which was a long time ago, and given his positive character traits, limited criminal history, plea of guilty (to aggravated burglary), spare running of the trial on affray, genuine remorse and strong prospects of rehabilitation, I do not think it is necessary to give much weight to specific deterrence or protection of the community in sentencing on affray and aggravated burglary. In fact, I think it is very unlikely that Mr Novakovic will offend in this way in the future.

139 In my view, rehabilitation remains an important consideration. I shall say more about this shortly.

140 In my view, general deterrence, just punishment and denunciation are very important sentencing purposes in this case of murder. The community must understand, first, the inherent danger and destructive power of picking up a knife in anger, even if only spontaneously. The community should also know that to stab another in the chest and kill him - even without an intention to kill but with an intention to cause really serious injury - is indeed murder, and that this is behaviour that, not only violates the sanctity of human life, but also mars the lives of the deceased's loved ones permanently. Crimes of this nature are emphatically denounced by the courts and inevitably result in life-altering terms of imprisonment.

141 Again, given his positive character traits, limited criminal history, plea of guilty (to manslaughter) and related spare running of the trial, genuine remorse and strong prospects of rehabilitation, I do not think it is necessary to give much weight to specific deterrence or protection of the community as sentencing purposes for this particular murder. In fact, I cannot conceive of Mr Novakovic offending in this way in the future.

142 In my view, rehabilitation remains an important consideration. This is particularly so because Mr Novakovic has such strong prospects of rehabilitation. It is, I think, also important to recognise the interplay between rehabilitation and protection of the community. As serious as these crimes collectively are, especially the murder, Mr Novakovic will be returning to the community at some point. It is therefore in the community's interests that such prospects of rehabilitation as he has be maximised, 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.

143 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.

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

145 In this connection, I have considered sentencing statistics for affray[17] and aggravated burglary[18] 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 co-accused's plea.[19]

146 Also, I have considered the sentencing statistics for murder.[20] Those statistics show that, for the period 2013-14 to 2017-18, the average (or mean) sentence ranged from 20 years and two months' imprisonment in 2016-17 to 23 years and seven months' imprisonment in 2017-18, and the mode was 20 to less than 21 years' imprisonment.

147 Mr Doyle referred to a sample of sentences in cases of murder by stabbing to give some idea of the range of sentences imposed in such cases in recent years following pleas of not guilty. The sample comprised The Queen v Doherty;[21] DPP v Musso;[22] DPP v Jones;[23] and The Queen v Volpe.[24]

148 The Queen v Doherty: Mr Doherty stabbed a man in the buttocks with a knife, followed him and later fatally stabbed him in the throat, intending to cause really serious injury. He had a substantial criminal history, but also had physical disabilities that made prison onerous for him. On the murder, he was sentenced in 2017 by T Forrest J to 21 years' imprisonment. (He had committed other offences as well, the sentences for which combined to form a longer total effective sentence.)

149 DPP v Musso: Mr Musso stabbed a man once in the chest (which was fatal) and twice (superficially) to his back and the side of his chest. He then drove the deceased to an area of bush, left him in the car, set the car alight and thereby burnt his body. He showed no remorse, had a long criminal history and poor prospects of rehabilitation. He was sentenced in 2017 by Hollingworth J to 24 years' imprisonment with a non-parole period of 19 years.

150 DPP v Jones: During a series of assaults that arose spontaneously, Mr Jones stabbed a man twice in the upper thigh. One of those stabbings severed a femoral artery, which caused the man to bleed to death. After the assaults, Mr Jones said to another, "[The deceased is] dead and you're next." It was accepted that he intended to cause really serious injury, not death. Mr Jones had a deprived background, borderline intellectual functioning and a long history of crime and drug and alcohol abuse. The judge found no remorse. In 2018, Hollingworth J imposed a sentence of 20 years' imprisonment with a non-parole period of 15 years.

151 The Queen v Volpe: After following a man in a fit of anger over an earlier perceived threat, Mr Volpe reached in through a car window and stabbed the man once to the upper chest, intending to cause really serious injury. Recognising that he did not look well, Mr Volpe drove the man towards a hospital but then went past it several times without stopping. (It was accepted that the man had probably died by this point and that Mr Volpe then panicked.) Eventually, he dumped the body on the grass near a kindergarten. The next day, Mr Volpe expressed a desire to travel to Brisbane and cleaned his car to conceal his involvement. He was a polysubstance abuser, had low cognitive functioning, suffered post-traumatic stress disorder, was more sensitive to threats in consequence and would find imprisonment somewhat burdensome. In 2018, Champion J imposed a sentence of 19 years' imprisonment with a non-parole period of 15 years.

152 Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. It is possible to make comparisons between the present case and the foregoing and other cases. But, in the area of sentencing, it is almost always difficult usefully to compare other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be applied or distinguished. Nevertheless, I have found the sentences to which I was referred, and the reasons given for imposing them, instructive in gauging the order of sentences imposed for murder, particularly where the deceased is killed by stabbing, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors. In the end, however, as is always the case, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Mr Novakovic's offence of murder.

153 These same remarks apply, with necessary adaptation, to sentencing for affray and aggravated burglary.

154 I must also have regard to the principle of parity among co-offenders when imposing sentences for the affray and the aggravated burglary.

155 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.

156 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.[25]

157 While these three offenders were either in or in the vicinity of the kitchen immediately after Mr Novakovic, Milan Jovic and Sasa Jovic entered, Champion J made it clear that they were not to be punished for the violence that occurred there.[26]

158 As I indicated earlier, I convicted and sentenced Milan Jovic to 18 months' imprisonment for aggravated burglary and six months' imprisonment (concurrent) for the affray, and fixed a non-parole period of nine months; and convicted and sentenced Sasa Jovic to 16 months' imprisonment for aggravated burglary and three months' imprisonment (concurrent) for the affray, and fixed a non-parole period of eight months.

159 I considered that Sasa Jovic's offences were each less serious than Milan Jovic's offences, although less so in the case of aggravated burglary. Milan Jovic was also a relatively young person at the time of the offending.

160 I regard Mr Novakovic's affray as a tad more serious than Milan Jovic's affray, given that he, unlike Milan Jovic, held a bottle during a couple of the punches thrown. I also take into account that Mr Novakovic has a prior appearance for affray, albeit a long time ago, whereas neither Milan Jovic nor Sasa Jovic had such a prior matter.

161 I also regard Mr Novakovic's aggravated burglary as more serious than Milan Jovic's aggravated burglary, given his greater role and more determined intention to assault Mr Dimovski. On the other hand, I must recognise that Mr Novakovic pleaded guilty to aggravated burglary whereas neither Milan Jovic nor Sasa Jovic did so.

162 I have factored all of these and other competing considerations into the sentences to be imposed for affray and aggravated burglary.

163 I turn now to the questions of concurrency, cumulation and totality.

164 In sentencing Milan Jovic and Sasa Jovic on the affray and the aggravated burglary offences, I said this:[27]

[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 [to reflect] the maximum penalty.[28] 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.

165 These remarks, with necessary adaptation, apply to sentencing Mr Novakovic on affray and aggravated burglary. In particular, employing the same reasoning, I have determined to impose a prison sentence for affray but to let it run concurrently with the other sentences. As Mr Doyle submitted, the factual basis of, and therefore the sentence on, the murder is informed at least in part by what occurred during the course of the affray and the aggravated burglary in any event, which makes it important to be astute to avoid double (or triple) punishment among the sentences.

166 Further, while the sentence to be imposed for the aggravated burglary is a good deal shorter than commonly imposed for the so-called confrontational examples of the offence, I think the balance between avoiding double punishment in sentencing for that offence and murder on the one hand and recognising the separate aspects of those two offences on the other, as well as the dictates of totality, requires that there be some modest cumulation. As I understood their submissions, both Mr Doyle and Mr Mandy recognised the need for such balance.

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

168 As well as his submissions on the facts and matters of principle, Mr Mandy, in his written outline, offered that "a head sentence of [imprisonment for] less than 20 years is appropriate in this case".

169 Mr Doyle avoided making a specific submission of that type. Instead, he was content to assist the Court with the range of cases I mentioned earlier, as well as his submissions on the facts and matters of principle.

172 On the offence of affray (Charge 1), Mr Novakovic is convicted and sentenced to seven months' imprisonment.

173 On the offence of aggravated burglary (Charge 2), Mr Novakovic is convicted and sentenced to 18 months' imprisonment.

174 On the offence of murder (Charge 3), Mr Novakovic is convicted and sentenced to 20 years' imprisonment.

175 I direct that six months of the sentence for aggravated burglary be served cumulatively upon the sentence for murder, which makes a total effective sentence of 20 years and six months' imprisonment.

176 I fix a non-parole period of 15 years. That non-parole period is a bit shorter than I might impose ordinarily in view of the total effective sentence. This is because, first, I am satisfied that Mr Novakovic's prospects of rehabilitation are sufficiently strong to warrant such a course and, second, I think that the purposes of sentencing I mentioned earlier are all met by such a period.

177 I declare[29] that, including today, 713 days of pre-sentence detention have been served under this sentence.

178 I also declare[30] that, but for Mr Novakovic's plea of guilty to aggravated burglary, I would have imposed a sentence in the order of 24 months' imprisonment for that offence (and a greater level of cumulation of that sentence upon the others, which would have increased the total effective sentence and the non-parole period as well).

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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] 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 The Queen v Novakovic & Ors (Rulings 2-4) [2019] VSC 339.

[5] See The Queen v Jovic & Jovic [2019] VSC 379.

[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] The Queen v Jovic & Jovic [2019] VSC 379 at [34], [73] & [79].

[9] A summary of the allegations of homicide against Milan Jovic and Sasa Jovic is contained in my reasons for sentencing them and in my reasons for some trial rulings (see The Queen v Jovic & Jovic [2019] VSC 379; and The Queen v Novakovic & Ors (Rulings 2-4) [2019] VSC 339).

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

[11] 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).

[12] 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.

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

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

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

[16] See s 3 of the Crimes Act 1958 (Vic). The statutory footing on which murder is sometimes (although not often) put, and certainly not in this case, is pursuant to s 3A of the Crimes Act 1958 (Vic). This is a form of constructive murder that replaced felony-murder at common law.

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

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

[19] 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.

[20] Sentencing Advisory Council, Sentencing Snapshot: Murder, No 223, April 2019.

[21] The Queen v Doherty [2017] VSC 626 (T Forrest J).

[22] DPP v Musso [2017] VSC 732 (Hollingworth J).

[23] DPP v Jones [2018] VSC 329 (Hollingworth J).

[24] The Queen v Volpe [2018] VSC 797 (Champion J).

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

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

[27] See The Queen v Jovic & Jovic [2019] VSC 379 at [125]- [127].

[28] 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]).

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

[30] Pursuant to s 6AAA of the Sentencing Act 1991 (Vic).