The Queen v Rapovski [2015] VSC 359

3 Your paths crossed on the night of 1 February 2014 as a result of you driving a former friend, Philip Sazdanovski, to Dalton Road, Thomastown where he had arranged to meet, or, more accurately, confront, Tepelis as a result of a disagreement about a young woman.

4 The young woman in question, Natasha Talevski, had once been in a relationship of sorts with Tepelis. After their relationship soured, Talevski complained to her friend Sazdanovski about Tepelis hassling and threatening her and gave Sazdanovski Tepelis' mobile phone number. Whether there was any substance to Talevski's complaints about Tepelis is not something I need to decide. What is relevant is that Sazdanovski promptly contacted Tepelis. In the following hours, the two men exchanged texts and phone calls which became increasingly heated, culminating in them arranging to meet in Thomastown that night, near where Tepelis lived.

5 At the time, Sazdanovski was staying at your place. He did not have a valid driver's licence. He asked you to drive him to Thomastown. Your girlfriend at the time, Nicolaidis, accompanied the two of you. She sat in the front passenger seat. Sazdanovski sat in the back.

6 You pulled up on the corner of Dalton Road and Rochester Drive where Tepelis and two of his friends, Dejan Kupresak and Jeton Krasniqi, were waiting. Tepelis had a machete and the other two had golf clubs. Krasniqi picked up a glass bottle which he threw at your car. It struck the front window on the passenger side, which was partly open. The bottle also struck Nicolaidis, cutting her face and dislodging a tooth. She was bloodied and screaming. Both you and Sazdanovski jumped out of the car. Sazdanovski had a wooden mallet. You had a hand gun. You moved around the rear of the car, took aim and fired one shot at Tepelis who was standing on the footpath or nature strip, not more than about 10 metres away. The shot hit him in the neck and he went to the ground. You and Sazdanovski jumped back in the car and drove off. Later that evening, you took Nicolaidis to hospital for treatment for her injuries. She had suffered a broken jaw.

7 You ran your trial. Your defence was that Sazdanovski, the principal witness for the prosecution, was the shooter, not you. The jury rejected that defence and necessarily found that when you shot Tepelis, you did so with the intention to kill him. The prosecution relied on the injury to Nicolaidis as your motive for shooting Tepelis. It alleged that you shot him in the mistaken belief that Tepelis was the one who threw the bottle.

8 I find that your conduct was provoked by the sudden and dramatic injury to Nicolaidis. You were sitting right beside her when the glass smashed into her face. You saw the blood and heard the screaming at close quarters. The prosecutor conceded that this incident caused you to lose your self-control and act as you did. There was only a very short space of time between the infliction of the injury to your girlfriend and you firing the shot.

9 What you should have done of course was drive away. The prosecutor submitted that that was what an ordinary person would have done. I accept that submission, although your moral culpability is still reduced by the fact that you were subjectively provoked by the injury to Nicolaidis.[1]

10 Why, and for how long, you had a loaded gun with you, is unclear. Since you maintain your innocence, your counsel was not able to shed any light on that subject in the course of the plea. But the fact of the matter is that you were getting about in your car on the evening of 1 February 2014 with a loaded handgun, conduct which cannot be attributed to a sudden loss of self-control by reason of provocation.

11 The consequences of your conduct for your immediate victim were catastrophic, tragic. Your counsel conceded as much. As I said, Evan Tepelis has been left a paraplegic. Dr Clements, from the Austin Health Victorian Spinal Cord Service, records that Tepelis had 'gunshot injuries to his cervical spinal cord and left brachial plexus'.[2] Dr Clements said in his report dated 5 March 2014 that 'the overwhelmingly likely outcome is that [Tepelis] will not regain movement and sensation to the lower limbs to a degree that will allow him to stand and walk.'[3] The Clinical Discharge Summary,[4] which is undated but obviously more up to date given that it refers to Tepelis' discharge date from the Royal Talbot Rehabilitation Centre (28 January 2015), says under the headings of 'Activities of Daily Living' and 'Mobility':

He requires assistance with dressing and undressing, bathing upper and lower body, full assistance with management of his SPC,[5] bladder washout and emptying his leg bag and bowel management. He is able to drink and eat independently but will require assistance with some two handed tasks such as opening containers and cutting up his food.

Using powered wheelchair for indoor and outdoor mobility and requires the assistance of one person to reposition him in bed and in the wheelchair. He requires one person to hoist him for transfer from wheelchair/bed/commode.

12 The victim impact statements from Tepelis, his father, mother and sister describe the massive and harrowing impact the shooting has had, and will continue to have, on all their lives.

13 Your counsel submitted that I should not regard what she described as the 'unintended catastrophic effects' upon Tepelis as 'a very important sentencing factor'. She relied on the Queensland case of O'Neill[6] where Dowsett J said:

It is the intention to kill which is the most serious aspect of the offence of the attempted murder, not the consequences to the victim ... . Whether or not the victim suffers serious injury will often be a matter of chance.

14 But to say that the intent to kill is the most serious aspect of the offence of attempted murder is not to say that where catastrophic injuries are sustained by the victim that that is not a very important sentencing consideration.

15 Further, Dowsett J's observation in O'Neill has to be understood in its context. In O'Neill, the offender, a nurse, tried to kill her husband by injecting him with insulin. The victim did not suffer any permanent injury. The court in O'Neill was not required to consider the significance of the presence, as opposed to the absence, of catastrophic injuries to a victim when sentencing for attempted murder.

16 I subscribe to the view that 'the character, magnitude and permanence of the injuries are very important sentencing factors',[7] though I must be careful not to let it swamp other sentencing considerations.

17 There is one more point to be made in relation to Tepelis' injuries. Your counsel described them as an 'unintended catastrophic effect.' The fact that you did not intend the particular catastrophic injuries he suffered is hardly mitigatory since, according to the jury's verdict, you intended to inflict on Tepelis a greater catastrophe, namely, death.

18 You have a number of prior convictions for violence.

19 At Heidelberg Magistrates' Court on 25 November 2013, just a few months before the commission of the current offence, you were convicted, amongst other things, of conduct endangering a person, possession of a prohibited weapon and use of a prohibited weapon. You were given an aggregate sentence of imprisonment of 16 months, 6 months of which was to be served immediately, the balance suspended for 2 years. 180 days was reckoned as already served by way of pre-sentence detention, resulting in your release on the day you were sentenced. Hence, you were on that partially suspended sentence at the time of the attempted murder, which is an aggravating factor. I will return to the facts of this prior matter in a moment.

20 At Broadmeadows Magistrates' Court on 26 June 2003 you were convicted and fined for, amongst other things, unlawful assault, assault with a weapon and possession of a dangerous article. That was a 'road rage' incident where you spat on a taxi driver and a short time later, threatened him with a steering lock. Given the age of this prior, it is of little significance.

21 However, the prior conviction in 2013 is clearly of considerable significance, given the seriousness of the conduct involved, its proximity in time to the current offence and the fact that you were on a partially suspended sentence for that matter at the time of the current offence. The offending occurred in March 2013. A female associate telephoned you in relation to a male attending her home. You drove to her home, in possession of a loaded semi-automatic, and, discovering that the male had left, went in search of him. On spotting him in a parked car, you fired 5 shots towards him and drove off. The victim drove after you. You fired a further 6 rounds at the victim when your two cars were at an intersection. A short time later, you fired one more round in the direction of his vehicle. Seven rounds fired by you actually struck the victim's car.

22 You are not to be further punished for that offending. But the use of a firearm in the current offence, so soon after sentencing for the use of a firearm on that prior occasion, means that deterring you, as well as deterring others, from unlawfully resorting to firearms in the future must be given considerable weight in the sentence I pass on you.

23 Turning to your personal circumstances, you were born on 11 April 1983 in Macedonia, the second of three children, all boys.

24 Your parents left Macedonia when you were only 3 to make a better life for your family in Australia. You and your older brother were left behind in the care of your maternal grandmother who brought you to Australia when you were 6. Growing up, you enjoyed a close relationship with your mother, less so with your father, who was more the disciplinarian, but your counsel told me that that relationship has grown closer over the years, especially after you became a father yourself. The written reference from your parents confirms their continuing love and support for you.

25 You left school at the end of Year 9. You began an apprenticeship as a cabinet maker but after a few months, returned to Macedonia. You had started using heroin and your parents sent you back to Macedonia, to hopefully get you away from heroin and a negative peer group. I will say more about your history of illicit drug use a little later.

26 You came back to Australia when you were 18. You began working as a concreter, eventually setting up your own concreting business. I have read a number of testimonials from people whom you either employed or for whom you did concreting work and they speak highly of you.

27 You got married at 18 and now have a son aged 6. Your wife and child are currently living with your parents. The reference from your wife, like that of your parents, speaks of her continuing love and support for you. She visits you regularly in prison.

28 At the time of the current offence, you and your wife were separated. Your counsel attributed the temporary break down in your relationship with your wife to you using ice, which brings me to your drug history.

29 You have had a long history of illicit drug use. According to your counsel, you commenced using marijuana at the age of 14, and heroin when you were 15. You were using heroin for about 6 months, prior to your parents sending you back to Macedonia.

30 There was conflicting evidence about your use of the drug ice. Your counsel told me that you only became addicted to ice in 2012, and that it contributed, not only to the temporary breakdown of your marriage but also your prior offending in March 2013. She said that you were bailed in relation to the March 2013 offending in August 2013 and, at your plea hearing for that matter in November 2013, you provided the Magistrate with clean urine results.

31 On instructions, your counsel told me that you were not under the influence of ice at the time of the current offence.

32 In reply, the prosecutor drew my attention to the fact that on 3 December 2014, you made a bail application before Bongiorno J in respect of the current offence. You were represented by different counsel and a different solicitor at that bail application. The material placed before Bongiorno J included a report from a drug counsellor Francis J. Coughlan, from a residential drug rehabilitation organisation known as 'Recoveroz', to which you hoped to be bailed. That report became Exhibit G on the plea hearing before me. Under the heading 'Ice', Mr Coughlan, who interviewed you at Port Phillip Prison on 26 November 2014, wrote:

Mr Rapovski reported that he had experimented with ICE at about the age of 20 years. However, Mr Rapovski stated that, whilst his initial use of ICE was spasmodic, it rapidly escalated, and that he had used the drug, on a daily basis, for about the past 12 years. At his peak of using ICE, Mr Rapovski reported that he would use in excess [of] 3.5 grams per day. Mr Rapovski stated that his use of ICE had ceased immediately he was arrested [sic].[8]

33 A little later in the report, Francis J. Coughlan added:

Mr Rapovski ... was assessed (26/11/14) by the writer where he explained that he had been charged with extremely serious offences (which he attributed primarily to drug use and the associated behaviours) and that he needed to do something about his situation.[9]

34 Your lawyers on the plea hearing were taken by surprise by the report. I gave them the opportunity to read it and get further instructions. You reiterated to them that you were not under the influence of ice at the time of the current offence. You did not accept the truth of the history given by Coughlan. Defence counsel submitted, rather unconvincingly, that in the second extract above, you might have been referring to the March 2013 offending.

35 Whilst I am sceptical about the drug history you gave to your current lawyers, the prosecution did not ask me to: (a) find that you were under the influence of ice at the time of the shooting; and (b) to treat that as an aggravating factor.

36 The only significance I will attach to the Coughlan report is that I am not prepared to accept that your problem with ice is as recent and short lived as your counsel originally made it out to be, which brings me to your prospects of rehabilitation.

37 The fact that you served 6 months imprisonment in 2013 for a shooting incident, and were on a partially suspended sentence for that incident at the time of the current offence, makes me balk at finding that you have good prospects of rehabilitation. Your drug history, even the version most favourable to you, adds to my reservations. On the other hand, there was a 10 year gap between your prior conviction for offences involving violence. Further, you have the support of your wife and parents and you are the father of a young child. You previously had steady employment in the concreting industry and indeed had your own concreting business for a time, employing a number of workers. You are only 32. Taking those matters into account, I find that your prospects of rehabilitation are reasonable, a matter conceded by the prosecutor.[10]

38 The Sentencing Act 1991 (Vic) requires me in sentencing you to have regard to current sentencing practices. I have done so. I have considered not only the cases on attempted murder that counsel referred me to[11] but also other attempted murder cases,[12] some of which involved catastrophic injury to the victim.[13] I have also considered the statistics compiled by the Sentencing Advisory Council ('SAC') in its Sentencing Snapshot for Attempted Murder.[14] The SAC states that 'the median length of imprisonment term imposed [for attempted murder] was 11 years while the median length of non-parole period was eight years.'[15]

39 The upper end of the range of head sentences for attempted murder is in the order of 16 years.[16] In Hudson, the Court of Appeal was dealing with two particularly serious examples of attempted murder as well as a count of murder and other charges. It noted at [71] that 'cases involving attempted murder have attracted sentences of 12 years imprisonment, 14 years imprisonment and 16 years imprisonment. Relevantly, the latter two sentences were imposed in cases in which the accused pleaded guilty.'

40 Because of the very limited number of comparable attempted murder cases involving catastrophic injury, I have also had regard to a number of sentencing cases concerning the lesser offence of intentionally causing serious injury where victims have suffered injuries of comparable severity. The cases were helpfully summarised in the further written submissions filed by the prosecution.[17] I had regard to these cases over objection from your counsel who submitted that such sentencing cases could be of no assistance because they concern a different offence. I disagree. The notion of comparable cases can, in my view, extend to similar offences which resulted in similar catastrophic consequences for the victims.

41 One must bear in mind, of course, that comparable cases only provide limited assistance to a sentencer, as do sentencing statistics.[18] Each case must be decided on its facts, having regard to the specific aggravating and mitigating factors.[19]

42 All attempted murders are serious offences. For the purposes of determining an appropriate sentence, it is appropriate to consider where your offence falls on the spectrum of such offences.

43 The prosecutor submitted that it falls at the medium to upper end of the range. Defence counsel in her written outline submitted that it falls 'in the medium to upper end of offending rather than an example of the most serious type of this offending'. In her oral submissions, she submitted at one point that it falls at the low end of the mid-range.[20]

44 Your decision to shoot Tepelis was made on the spur of the moment, as a result of your then girlfriend being struck in the face. The fact that it was not a premeditated attempted murder, and was carried out when you had lost your self-control by reason of provocation, means it is not appropriate to place it in the upper range of attempted murders, even though the consequences of your actions have been catastrophic. I consider that it falls in the mid-range of attempted murders, but at the upper end of that range, given the victim's injuries and the fact that it occurred whilst you were on a suspended sentence for a serious firearms related offence.

45 Taking into account all the matters I have mentioned above, I impose a sentence of 12 years imprisonment with a non-parole period of 9 years.

46 I declare that you have served 521 days by way of presentence detention, excluding today.

47 Finally, I make the disposal order sought by the Crown, which you did not oppose.

[1] For provocation to be relevant at the sentencing stage, it does not have to meet both the subjective and objective tests which applied when provocation was formerly relied on as a partial defence to murder.

[5] SPC means Suprapubic Catheter - see Plea exhibit F, Austin Health Clinical Discharge Summary at 1.

[6] [1995] QCA 331; (1995) 81 A Crim R 458, 566 ('O'Neill').

[7] DPP v Lepoidevin [2003] VSCA 61 [35] (Cummins AJA).

[8] Report of Francis J. Coughlan dated 27 November 2014, 3.

1. [11] The Queen v Quail [2013] VSC 190 and R v Keshtiar [2004] VSC 140.
2. [12] See the Judicial College of Victoria Sentencing Manual at Chapters 26.13.4 and 26.13.4.1. The latter Chapter summarises attempted murder cases between 1997 and 2013. The sentence for attempted murder with respect to these cases ranges from 8 to 16 years for the head sentence and 5.5 to 11 years for the non-parole period.

[13] In Director of Public Prosecutions v Adajian [1999] VSCA 105, the victim suffered catastrophic injuries. It was a more serious example of attempted murder than the current offence. The offender, who was under great financial pressure, brutally murdered a father and son and attempted to murder the mother too, all to cover up a robbery on their jewellery business. The mother suffered catastrophic injuries. The accused had no relevant priors and pleaded guilty. The Court of Appeal upheld an appeal against the inadequacy of the sentence for the attempted murder, substituting a sentence of 13 years for one of 10 years, taking into account double jeopardy. The applicable maximum at the time was 20 years (the maximum was increased to 25 years from 1 September 1997). In R v Do & Tran [2002] VSC 49 the victim suffered catastrophic injuries (paraplegia) as a result of being struck in the head with a machete by Do (convicted by jury of intentionally causing serious injury) and stabbed six times in the back by Tran (convicted by jury of attempted murder) as he tried to flee his two assailants. Both Do and Tran were young offenders. Tran had no relevant prior convictions and was sentenced to 8 years imprisonment with a minimum term of 6 years.

[14] Sentencing Advisory Council, Sentencing Snapshot: Sentencing trends for attempted murder in the higher courts of Victoria, 2001-02 to 2005-06, No 21, January 2007. Although it is now somewhat dated, it is the only Sentencing Snapshot for Attempted Murder.

[16] The highest principal sentence of imprisonment was 18 years, which was reduced to 16 years on appeal, as noted in Hudson v R (2010) 30 VR 610, 617; [2010] VSCA 332 [70] ('Hudson').

[17] In respect of these cases, the most lenient outcome on appeal was a head sentence of 4.5 years with a non-parole period of 2.5 years. The most severe, a head sentence of 15 years with a non-parole period of 12 years. Apart from those two cases, the range for head sentences was 7 to 11.5 years and, for the non-parole period, 5 to 9 years.

[18] Hudson [27] to [37] and [70].

[19] Consequently, an attempted murder involving catastrophic injuries may result in a lesser sentence than an intentionally causing serious injury involving catastrophic injuries, because there are fewer aggravating factors and more mitigatory factors.

[20] Plea hearing transcript 35 and 45.