The Queen v Selimovski [2016] VSC 325

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

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

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

5 Mr Monteath, who did not even know his killer, had the tragic misfortune of being in the wrong place at the wrong time. He was an innocent victim of Mr Selimovski's hare-brained criminal scheme to exact vengeance upon Adrian Grech, with whom he was feuding over a belief that he had stolen his precious car parts.

6 Mr Selimovski had recruited two other men, Ozan Yusuf and Oguzhan Gurkan, to help him teach Adrian Grech a lesson. The three of them turned up in the street outside the house wearing disguises and armed: Mr Yusuf with a fire extinguisher filled with petrol; Mr Gurkan with a sawn-off shotgun, a bottle of kerosene and a tennis ball; and Mr Selimovski with the .380 handgun. The elaborate but idiotic plan was to spray Mr Grech's car with petrol using the fire extinguisher; then to throw a kerosene-soaked and burning tennis ball at the car so as to ignite and burn it; and then to shoot the car with the shotgun.

7 But things got terribly out of hand. As Mr Yusuf began spraying a car parked in the driveway, by chance, some of the men from the party were already out the front of the house or on their way out. Mr Yusuf and Mr Gurkan noticed the men and told Mr Selimovski to turn back. Instead, Mr Selimovski, who was standing in the court behind Mr Yusuf at this point, drew his handgun and fired at least two shots in the general direction of the people and the house. One of those shots struck and killed Mr Monteath, who probably was standing inside the front doorway at the time.

8 Mr Selimovski also directed Mr Gurkan to fire the shotgun at the car, which he did, twice - once into its passenger-side door and once into its A-pillar. The second shot ricocheted and glanced Shane Grech on the leg, causing him an injury. A pellet or pellets from at least one of those shots also went through a glass front window of the house.

9 The assailants all then fled back down the court. Mr Selimovski fired further shots as he ran away. Adrian and Shane Grech gave chase but eventually turned back.

10 Some of these events were captured on two CCTV security cameras fixed at the front corners of Adrian Grech's home, although the footage is rather grainy, dark and, I suspect, elliptical.

11 While the three men went their separate ways, each subsequently was arrested and charged with the murder of Mr Monteath and intentionally causing injury to Shane Grech. Ultimately, the Director of Public Prosecutions accepted pleas of guilty from Mr Yusuf and Mr Gurkan to manslaughter and recklessly causing injury. Both men made statements to police implicating Mr Selimovski, undertook to give evidence against him and were called as witnesses at his trial. Last December, both were sentenced in this Court by Macaulay J.[1]

12 In March-April this year, Mr Selimovski stood his trial on murder. His principal defence was that, while he was one of the three masked men outside Adrian Grech's house, he did not possess or fire the handgun and did not shoot Mr Monteath. Rather, he pointed to evidence suggesting that it was Mr Yusuf who fired the fatal shot. Given the way the case was conducted, which required that Mr Selimovski be proved to be the one who fired the fatal shot before a verdict of guilty of murder could be returned against him, the jury's verdict says otherwise.[2]

13 Prior to trial, Mr Selimovski pleaded guilty on a separate indictment to recklessly causing injury to Shane Grech, on the basis that he was complicit in the shot fired by Mr Gurkan.

14 On 13 May 2016, I heard a plea in mitigation. Shortly, I shall pass sentence on Mr Selimovski for his crimes.

15 Before doing so, I shall set out a more detailed summary of the evidence given at trial. Unless otherwise indicated, I am satisfied beyond reasonable doubt of both the foregoing and the following facts.

16 Adrian Grech lived at 35 Plowman Court in Epping, with his wife Belinda and three children. He is a mechanic by trade and had set up a workshop to do some mechanical work from home.

17 Mr Grech and Mr Selimovski had been friends for about two years prior to May 2014. In early 2013, Mr Selimovski left his Nissan Skyline car with Mr Grech for repairs. For that purpose, he also left a trailer containing various car parts. From early 2014, Mr Selimovski also had a boat stored at Mr Grech's house.

18 At some point, Belinda Grech, who was keen to have some concreting done at the rear of her home, asked her husband to stop doing work for others and to have removed from their premises the various cars and other bits and pieces belonging to his friends. Adrian Grech told Mr Selimovski his things had to be removed, which made him angry. First, the boat was taken away. Then, the Nissan, which was not drivable, was removed. Finally, the trailer containing car parts was collected.

19 Subsequently, Mr Selimovski told Mr Grech that some car parts were missing from the trailer. He became very angry and accused Mr Grech of stealing them. Thereafter, a series of increasingly heated exchanges were had between the two men.

20 On 17 May 2014, the day of the shooting, Mr Selimovski tried to ring Mr Grech several times but he declined to answer. At 3.32pm, Mr Selimovski texted him saying, "Mate, I need the [cylinder] head ASAP." He also said that he was coming to pick up his "bits" and that he (Mr Grech) was "not going to fuck me, I'll tell you that much". Mr Grech did not respond.

21 Shortly afterwards, at 3.55pm, Mr Selimovski arrived at Mr Grech's home in his silver Magna car. Also in the car was his six-year-old son. Mr Selimovski took two black metal poles from the boot of the car and strode up to the front door. Mr Grech and his neighbour Joel Graham, who were sitting on the front veranda, both fled. Mr Grech ran inside the house, locking the security door behind him; and Mr Graham bolted down the court. Mr Selimovski, who did not know Mr Graham, yelled to him, "You're dead, you fucking dog." He banged the poles on the security door and demanded his parts. Belinda Grech came to the door and told him to stop making a scene in front of his child, who was by now out of the car and standing in the driveway. Mr Selimovski, perhaps chastened by Mrs Grech, put his son back in the car and drove away. That said, as he drove past Mr Graham in the street, he repeated, "You're dead, you fucking dog." Most of this incident was captured by CCTV cameras at the property.

22 At 4.09pm, Mr Selimovski sent another text to Mr Grech stating, "You better have all my stuff by the time I get back."

23 Mr Grech then contacted his brother Shane and told him what had just occurred. Shane Grech became very upset and demanded Mr Selimovski's telephone number, which his brother gave him. He then rang Mr Selimovski and took him to task for his behaviour. After heated exchanges, Mr Selimovski accused Shane Grech of being involved in taking his cylinder head. Unwisely, and in an attempt to provoke him into a confrontation, Shane Grech told Mr Selimovski that he melted down the head to make fishing sinkers. They continued to exchange increasingly abusive and threatening text messages over the next hour or so. At 5.11pm, after Shane Grech texted "You don't even know who you're talking to ... I'll make sure you never forget, pal. See you some time during the week", Mr Selimovski responded with, "Nah, tonight" and "Fuck you." Then, at 5.21pm, Mr Selimovski texted, "It's obvious that you haven't done your homework on me that I've always been the same when I get fucked by dogs is when I change."

24 Soon afterwards, Mr Selimovski drove past Adrian Grech's house. This too was captured by the CCTV cameras. By this time, several cars were parked out the front. These were the cars of the birthday party guests. At 5.54pm, Mr Selimovski texted Adrian Grech saying, "What, you have five or six cars for one. A joke. I hope it's a late one. I'll be back." It is apparent that Mr Selimovski perceived the gathering of cars as a show of force related to the feud and that he did not know that the cars simply reflected a gathering of people for a child's birthday party.

25 In any event, acting on this misunderstanding, Mr Selimovski then set about enlisting the help of Mr Yusuf and Mr Gurkan.

26 First, he began calling and sending text messages to Mr Yusuf, whom he had known for about two years. He was, however, unable to reach him.

27 Then, between 6.00pm and 6.30pm, Mr Selimovski arrived unexpectedly at the home of Mr Gurkan, whom he had a met through Mr Yusuf a few times. (Mr Gurkan and Mr Yusuf had been friends since childhood.) Mr Selimovski was angry. He asked Mr Gurkan to contact Mr Yusuf, which he was able to do after a few attempts. Mr Yusuf said he would come over. They waited for him but he failed to arrive.

28 Mr Selimovski decided that they would drive to a hotel and poker machine venue, The Stables, that Mr Yusuf often visited. Mr Selimovski drove erratically, swerving in and out of traffic at high speed. Instead of driving straight to The Stables, however, he drove to his own house. He went to his garage and put things into the boot of the car. While Mr Gurkan could not see those things, later events suggest they included a .380 handgun, a shotgun, a petrol-filled fire extinguisher and two balaclavas. Mr Gurkan eventually received a text message from Mr Yusuf. It was then arranged that Mr Yusuf would meet them at The Stables.

29 Upon arrival at the hotel, Mr Selimovski gave Mr Gurkan some cash and told him to go to a nearby supermarket and buy some kerosene, latex gloves and a tennis ball. Mr Gurkan did not feel as though he could question Mr Selimovski, so he complied. When he returned from the supermarket, Mr Gurkan put the requested items in the front of Mr Selimovski's car. By this time, Mr Yusuf also had arrived in his girlfriend's Peugeot car.

30 After spending some time in the hotel, all three men eventually met in Mr Selimovski's car in the carpark. Mr Selimovski began the meeting by demanding Mr Yusuf repay a debt of $1,800 he owed him. Mr Yusuf offered him $300 and said that was all he had at the moment. Mr Selimovski became even angrier and threatened to hurt Mr Yusuf. Mr Gurkan intervened and offered to help by paying a further $700 the next week.

31 Mr Selimovski then told Mr Yusuf and Mr Gurkan that he needed them to do him a favour. He said that he was owed money by someone else, who was not paying, and that he wanted to burn his car and teach him a lesson. Both Mr Gurkan and Mr Yusuf tried to talk Mr Selimovski out of this idea, but he just drove away from carpark with the two men still in his car.

32 After a short drive, Mr Selimovski parked the car in the area of Plenty Road in Epping, a short walk away from the home of Adrian Grech. He got out, went to the rear of the car and asked Mr Gurkan for the items he had bought earlier from the supermarket. Mr Selimovski took from the boot a balaclava, latex gloves and gardening gloves and put them on. He passed Mr Gurkan another balaclava and told him to put it on, as the house had cameras out the front. Since there was no balaclava for Mr Yusuf, Mr Selimovski told him just to pull the hood of his jacket over his head. He then took a fire extinguisher from the boot and passed it to Mr Yusuf. He said that it was filled with petrol and that he wanted Mr Yusuf to spray it at the car and Mr Gurkan to douse the tennis ball with kerosene, light it and throw it at the car to ignite it.

33 Mr Selimovski then took a shotgun from the boot and told Mr Gurkan also to put a couple of holes in the car to "teach him a lesson". Mr Gurkan told him that the shotgun was unnecessary and that he and Mr Yusuf would not come if he was going to bring the gun. Mr Selimovski said, "No one's turning back now, cunt," and pointed the shotgun at Mr Gurkan's feet. Since Mr Gurkan and Mr Yusuf were frightened of Mr Selimovski, they complied with his demands.

34 The three of them then set off through a grassy area and over a footbridge that led into Plowman Court. At the end of the court, Mr Selimovski stopped and pointed out the target house in the distance. He told Mr Yusuf that, when they got closer, he was to spray a four-wheel-drive with the fire extinguisher. At this point, Mr Selimovski also gave Mr Gurkan the shotgun. All three then headed off down the court.

35 When they arrived at the house, at Mr Selimovski's direction, Mr Yusuf began spraying the four-wheel-drive parked in the driveway. By this stage, by chance, Adrian Grech, Shane Grech and Joel Graham were out the front of the house. As the CCTV footage shows, Shane Grech was near his four-wheel-drive and Mr Graham was near his Holden utility. These were just two of the several cars parked out the front of the house. While it is not entirely clear, Wayne Grech and Mr Monteath must have been in the vicinity of the front door at the same time or very soon afterwards. Given where he was about to fall, Mr Monteath probably was still inside the front door and unseen by the assailants.

36 After Mr Yusuf had sprayed the four-wheel-drive for a couple of seconds, he stopped because he noticed people in the background behind the car. He then said to the other two, "There's people there. Let's go." Mr Gurkan said a similar thing.[3]

37 Mr Selimovski, however, did not stop. Instead, he drew a .380 handgun, which neither Mr Yusuf nor Mr Gurkan was aware of previously. At this point, Mr Selimovski was standing in the middle of the court behind Mr Yusuf. Mr Gurkan was to Mr Yusuf's left and closer to the left-hand side of the four-wheel-drive. Mr Selimovski pointed the handgun in the direction of the people and the house. He fired at least two shots, one of which struck Mr Monteath in the chest and killed him. It is not known where the other shot landed.

38 Mr Yusuf and Mr Gurkan told Mr Selimovski to stop, but he turned to Mr Gurkan and said, "Fire at the car, fire at the car."[4] Mr Gurkan fired the shotgun twice - once into the passenger-side door of the four-wheel-drive and once into its A-pillar. The second shot ricocheted and a pellet fragment glanced Shane Grech on the lower leg, causing him an injury.

39 The three assailants all then fled back the way they came. Adrian and Shane Grech gave chase up to the end of the court but then turned back. Mr Selimovski fired further shots down the court as he ran away.

40 Mr Yusuf, who is asthmatic and was having trouble breathing as they ran, stopped in a grassy area beyond the footbridge. Mr Gurkan came back to help him. Mr Yusuf told him to leave him as he refused to go with Mr Selimovski, who had arrived by this time. Mr Selimovski took the shotgun from Mr Gurkan and sought to reload it. He said, "They're coming" - meaning those from the house. Mr Gurkan then took the shotgun back, fearing Mr Selimovski might use it. He then took the fire extinguisher from Mr Yusuf, and the shotgun, the kerosene container and the balaclava, and hid them behind a tree. He placed the shotgun with its barrels pointing towards the ground and broke the breach to try to make it safe.

41 By this time, Mr Selimovski had already run ahead. Mr Gurkan did not know where they were. He left Mr Yusuf but eventually found Mr Selimovski hiding in his car. Mr Selimovski then drove them to a nearby address. The keys to the car Mr Yusuf had driven to The Stables were in Mr Selimovski's car. After spending some time at this address, Mr Selimovski told Mr Gurkan that another man would drive him back to The Stables so that he could collect Mr Yusuf's car from there, which he did.

42 Meanwhile, Mr Yusuf made his way to a shop, from where he rang a friend to collect him. He was taken back to Mr Gurkan's house, where he picked up his girlfriend's Peugeot.

43 I turn now to the police investigation and the forensic evidence.

44 Dr David Ranson, a pathologist, conducted an autopsy on Mr Monteath. He found that a bullet passed through the front of Mr Monteath's chest, which left an ovoid gunshot wound, damaged the aorta, pulmonary artery and lung, and lodged in a vertebra. In Dr Ranson's view, death would be expected to occur very quickly.

45 The bullet taken from Mr Monteath's body was examined by Leading Senior Constable Alan Pringle, a firearm and toolmaker examiner. He found the bullet to a .380 calibre. A total of five .380 calibre fired cartridge cases were found in Plowman Court. Two were found about nine metres from the end of Adrian Grech's side fence; and three were found about 16, 86 and 123 metres respectively away from the fence back up the court. Examination showed that all five shots were fired from the one .380 calibre semi-automatic handgun.

46 Soon after the shooting, police found the items Mr Gurkan had put behind the tree, as well as a gardening glove Mr Selimovski had dropped nearby. The .380 handgun has not been recovered.

47 DNA testing revealed material consistent with Mr Gurkan's DNA on the balaclava; both Mr Gurkan and Mr Selimovski's DNA on the shotgun; Mr Gurkan, Mr Yusuf and Mr Selimovski's DNA on the fire extinguisher; and Mr Gurkan's DNA on the kerosene container.

48 Mr Selimovski's fingerprint was also found on the fire extinguisher.

49 Gunshot residue was detected on the front passenger seat of Mr Selimovski's Magna; on the driver's seat and the handbrake of the Peugeot driven by Mr Yusuf; on the balaclava; and on the gardening glove.

50 Mr Selimovski was arrested on 21 May 2014 and was interviewed by police. He agreed there had been some animosity between himself and Shane and Adrian Grech leading up to 17 May 2014, but denied he had been involved in the shooting incident. Instead, he gave a false alibi. He was charged on that day and has remained in custody ever since.

51 Mr Gurkan and Mr Yusuf were arrested on 7 August 2014. Mr Gurkan gave a "no comment" interview, whereas Mr Yusuf gave police a false alibi. In September 2015, Mr Gurkan and Mr Yusuf made their statements to police implicating Mr Selimovski. As indicated earlier, they were sentenced by Macaulay J in December 2015.

52 I turn now to the key disputed sentencing facts.

53 On the plea, Mr Selimovski, through his counsel, challenged two of the more important facts alleged by the prosecution. I shall deal with each of these issues in turn.

54 The first matter concerns whether I should sentence on the basis that the murder was intentional or reckless.

55 Mr McWilliams, who appeared for the Director, submitted that I should be satisfied beyond reasonable doubt that Mr Selimovski intended to kill or cause really serious injury when he fired the fatal shot. Mr Desmond, who appeared for Mr Selimovski, submitted that I should not be so satisfied, but rather should act on one of the alternate heads of mens rea left to the jury - namely, recklessness as to causing really serious injury.

56 The jury were directed that, if they were satisfied beyond reasonable doubt that Mr Selimovski deliberately fired the fatal shot from the .380 handgun, then he could be guilty of murder if they were also satisfied beyond reasonable doubt that he fired the shot either with the intention of killing a person or causing him really serious injury or with recklessness as to killing a person or causing him really serious injury. Thus, the jury's verdict is consistent with any one of effectively four heads of mens rea.

57 I am not satisfied that Mr Selimovski intended to kill Mr Monteath or to cause him really serious injury, or that he had such an intention with respect to any person. While he deliberately discharged the handgun towards the house knowing that people were in the vicinity, having considered all of the evidence, I cannot exclude the reasonable possibility that he did not actually intend to shoot anyone. Instead, I am satisfied that he was reckless as to causing really serious injury - that is to say, he foresaw that, by firing the gun in that direction, it was probable that someone would be shot and caused really serious injury. To be sure, I am also satisfied that, while he fired in panic, he also did so with the intention of intimidating Adrian and Shane Grech. My reasons for those conclusions follow.

58 First, Mr Selimovski did not know Mr Monteath and bore him no malice. His anger, which was extreme, was directed at Adrian and Shane Grech. While he may have associated all of those outside the house as connected with the Grech brothers and their (perceived) show of force, I find myself unable to accept, on the criminal standard of proof, that that contention translates into an intention to kill or cause really serious injury.

59 Secondly, while Mr Gurkan and Mr Yusuf both had Mr Selimovski pointing the gun towards the people at the front of the house, I am not satisfied that he was knowingly pointing it directly at any particular person, and less still at Mr Monteath. It is not clear on the evidence whether Mr Monteath even could be seen by Mr Selimovski at the time the shots were fired. As I have said, given the evidence of where he fell when shot (i.e. inside the house), it is likely that he was inside the front door - and perhaps even out of sight - at the crucial time. Of course, it is possible that Mr Selimovski was aiming for one of the people outside the front of the house and simply missed him and struck Mr Monteath instead, which would be an instance of transferred malice, which possibility was left to the jury. But I am not satisfied to the requisite standard that that is what occurred.

60 Thirdly, there were at least two shots fired in the first volley of shots. Some witnesses spoke of more shots, perhaps as many as four or five, at that point. But there were only two cartridge cases found in the vicinity of where Mr Selimovski was standing when he must have fired the fatal shot. Only one related bullet is accounted for - which is that which was found in Mr Monteath's body. Other than the damage caused to the four-wheel-drive, the front window of the house and Shane Grech's leg, from what all at trial accepted was the two shotgun blasts fired by Mr Gurkan, there is no damage to the other cars, the other people, the house or anything else in what had to be the trajectory of any bullet from where Mr Selimovski was standing when, by the jury's verdict, he fired the two shots. Thus, I cannot exclude the reasonable possibility that he fired over the house or in some willy-nilly fashion. All of this adds to my conviction that he fired recklessly and without an intention to kill or cause really serious injury.

61 Fourthly, Mr Selimovski was quite a distance away from the people out the front of the house at the time he fired the first volley of shots; and even further away from the front of the house and Mr Monteath. No evidence was given as to precise measurements, but it appears to be in the order 15 to 20 metres (and perhaps more) between Mr Selimovski's position and the front door of the house, and perhaps ten to 15 metres between him and the people out the front of the house. It was also dark. Thus, the fact that the gun was not at the ready and then fired at close range but, rather, for reasons I shall explain shortly, was drawn spontaneously and in what appears to be a panic, and was fired at quite a distance, causes me to doubt intentional murder and plump for recklessness instead.

62 Fifthly, as to the question of a spontaneous firing of the gun, while the evidence of Mr Gurkan and Mr Yusuf gives the impression that there was time for deliberation between Mr Selimovski's being told of the presence of others and his firing of the first volley of shots, the CCTV footage suggests otherwise. The CCTV cameras recorded the actions of the three assailants and of Shane and Adrian Grech and Mr Graham when out the front of the house, albeit the images are of poor quality. When regard is had to that footage, even allowing for its limitations, Mr Yusuf's cessation of spraying, Mr Selimovski's being told of the presence of people, his firing of the handgun, his telling Mr Gurkan to fire the shotgun into the car and the firing of that shotgun, parts of which are not so clear in the images, all must have occurred within a very short space of time, if not almost contemporaneously. Again, this causes me to doubt an intention to kill or cause really serious injury.

63 Sixthly, neither Mr Gurkan nor Mr Yusuf was aware that Mr Monteath - or any person at all - had been shot, yet each of them was facing the same general direction as Mr Selimovski when the fatal shot must have been fired. Further, while they appeared to be keen to tell the jury about all sorts of incriminating things said and done by Mr Selimovski, neither gave any evidence of any admission by him of shooting anyone or of any awareness by him that he may have shot a person, despite the fact that both were in his presence after the shooting. Indeed, Mr Gurkan spent over an hour with him. Of course, Mr Selimovski's failure to make any such admission might be consistent with his being careful, but it is yet another factor that causes me to doubt an intention to kill or cause really serious injury.

64 Finally, while Mr Selimovski took two loaded guns to the house, which might be thought to be redolent of an intention to fire them and cause harm to a person or persons, I do not accept that that conclusion necessarily follows. It is plain that the shotgun was intended to be part of the plan to damage the car, and was directed by Mr Selimovski to be used for that purpose. The handgun, I accept, was concealed from his confederates and then used at the first sign of persons emerging from the house. But I doubt that it was brought along for the purpose of killing or seriously injuring anyone. Mr Selimovski's behaviour in the days, hours, minutes and seconds leading up to the shooting struck me as that of an extremely bad-tempered and angry man who was prepared to make all sorts of threats to get his own way and right perceived wrongs, but not as one who went there intending to use a gun to shoot anyone. Rather, carrying the handgun was just part of his show of force to those who would do him harm. That he did in fact use the handgun to shoot and kill Mr Monteath does not, for me at least, alter that conclusion. Rather, it simply reflects the panic under which he laboured when his plan went awry; yet, at the same time, it smacks of his preparedness to attempt to frighten Adrian Grech and his brother for doing him wrong.

65 I turn now to the second, and related, disputed sentencing fact.

66 Mr McWilliams submitted that the murder was not spontaneous but, rather, was planned. In this regard, he relied on, amongst other things, the planning involved in taking a loaded handgun, a loaded shotgun and disguises to the scene. He also pointed to the evidence of Mr Selimovski's animosity towards Adrian and Shane Grech.

67 While Mr Desmond accepted that there was planning involved in the attack upon the car, he submitted that I could not exclude the reasonable possibility that the killing was not planned but, rather, was the result of a spontaneous act.

68 For the reasons I have already given when dealing with intention and recklessness, I accept Mr Desmond's submission.

69 That said, lest there be any doubt about it, let me make my findings clear. I accept that, from the moment he sought to recruit Mr Yusuf and Mr Gurkan, Mr Selimovski planned to burn and shoot the car. I also accept that he planned to intimidate Adrian and Shane Grech with such behaviour. However, I do not accept that he had previously planned to fire a gun at any person. Rather, I am satisfied that he decided to resort to firing the gun towards people out the front of the house only when, in the course of the spraying of the car, it became apparent that there were people there. That was an act of both panic and intimidation, as well as an act implying sufficient indifference to the physical safety of others as to amount to the recklessness required for murder. That he continued with that intimidating behaviour by firing the handgun back down the court as he ran away is consistent with that analysis. The latter behaviour also does him no credit.

70 I turn now to the victim impact statements, which were made and read to the Court by Mr Monteath's mother Lynne Monteath and his aunt Jennifer Stenton.

71 Mrs Monteath describes how this senseless, cowardly and unnecessary act has impacted on her family and her husband. Her son was only 39 at the time of his death. He was separated from his de facto partner, with whom he had two sons - Zachary now aged three, and Joshua now aged five. The boys say prayers nightly and blow kisses to their father as they look for him in the brightest star. Recently, Joshua asked his grandmother when Jesus will come for him because he misses his dad and wants to be with him. Mr Monteath's two siblings Arna and Andrew and their partners and children are also devastated. Mrs Monteath says that her family has been given a life sentence.

72 Ms Stenton says that her nephew was a loving, happy and gentle person whose smile lit up the world. She is heartbroken at his death, and has lost her positive outlook on life. Her only solace is in helping her sister Lynne and her husband Michael as they look after Mr Monteath's children.

73 The victim impact statements are powerful and extremely moving documents. I have taken their contents into account in sentencing on the charge of murder.

74 I turn now to the nature and gravity of, and Mr Selimovski's culpability and degree of responsibility for, each offence.

75 Murder is the most serious offence in the criminal calendar. In this State, murder is (mostly) a common law offence[5] the maximum penalty for which is set by statute at imprisonment for life.[6] In so far as labels matter, for reasons that follow, I regard Mr Selimovski's offence as falling towards the upper end of the middle range of seriousness of murder.

76 First, as I have indicated, I am not satisfied that Mr Selimovski intended to kill Mr Monteath or to cause him really serious injury. Instead, I am satisfied that he was reckless as to causing really serious injury. Nor am I satisfied that the killing was planned. The sentence I am about to impose would have been substantially longer had I found that this was a planned intentional killing. All else being equal, an unplanned reckless murder is not as serious as a planned intentional murder. That is not to say that unplanned reckless murders cannot be as serious as, or even more serious than, planned intentional murders. Clearly they can be. But, while a spontaneous decision to take a risk of a probability that a person will be really seriously injured is a grave thing to do, a considered decision to take another's life in otherwise similar circumstances involves the gravest of actions.

77 Secondly, however, as Mr McWilliams submitted, there are several other factors suggesting a greater level of seriousness. They include the following:

a) First, there was a substantial degree of planning involved in recruiting two other men, in arming the group with two loaded weapons, in parking the getaway car some distance from the house and in sneaking up on the house disguised and in the dead of night.

b) Secondly, the offence was committed in a particularly dangerous fashion, with a firearm, in a public street at night, near other people and homes, and as part of an attempt to intimidate rivals. The risk that others also might have been harmed or killed was high, particularly given that at least five shots were fired by Mr Selimovski and that there were several people out the front of the house.

c) Thirdly, the offence was committed as part of group behaviour with two other men, one of whom was armed with a loaded shotgun provided by Mr Selimovski.

d) Fourthly, while Mr Selimovski panicked when he was alerted to the presence of people outside the house, he ignored Mr Yusuf and Mr Gurkan's pleas to desist and retreat and instead drew his handgun and fired it. That was reckless behaviour of a high order.

e) Finally, as I have already indicated, Mr Monteath was an innocent victim, one with no connection whatsoever with Mr Selimovski's mindless dispute with Adrian and Shane Grech.

78 Thirdly, as in all cases of murder, the devastation goes beyond the tragic loss of a life and has a wider and devastating impact on the deceased person's family and friends. It is just awful that Mr Monteath's two young children are left without their father.

79 It is for these reasons that I regard this as serious example of murder, and in particular as falling towards the upper end of the middle range of seriousness. Mr Selimovski is at the apex of those responsible for Mr Monteath's death. The offence is not mitigated by remorse for his direct involvement in the killing, as Mr Selimovski denied shooting Mr Monteath and possessing any form of mens rea required for murder, although he does feel sorry for Mr Monteath and his family, which is a matter to which I shall return.

80 Recklessly causing injury is usually one of the less serious offences against the person. It carries a maximum penalty of five years' imprisonment.[7]

81 This, however, was a serious example of the offence. While there is no evidence as to the gravity of the injury suffered by Shane Grech and no victim impact statement from him, the gravity of the injury suffered is only one measure of the seriousness of an offence. For reasons similar to those I have just given in respect of murder but necessarily adapted to this different offence, I regard Mr Selimovski's offence as falling towards the upper end of the middle range of seriousness of recklessly causing injury. He directed Mr Gurkan to fire the shotgun at the car in very dangerous circumstances. Mr Grech could easily have been seriously injured or killed, as others might have been too. Further, it was in fact premeditated that the car be shot. In addition, that stupid plan was persisted with despite his knowledge of the presence of persons in the vicinity and despite being implored by his co-offenders to leave.

82 Balanced against the seriousness of the offending are the mitigating factors on which Mr Selimovski is entitled to rely.

83 Before turning to those factors, I shall set out a summary of Mr Selimovski's personal circumstances.

84 Mr Selimovski was born in Macedonia on 10 June 1965. He therefore turns 51 today.

85 He came to Australia with his family at the age of five. His parents are still alive and attended the trial.

86 His secondary schooling was completed at the end of Year 9 at Collingwood Secondary College.

87 At the age of 31, Mr Selimovski married his partner Nesine. They have five children aged 18, 17, 12, eight and six. Since his remand, Mr Selimovski and his wife have separated.

88 After leaving school, Mr Selimovski had various jobs, ranging from working in a shoe factory, to welding, to being a storeman, to running a massage parlour. His main work has been in the transport industry as a truck driver. For several years, he employed two drivers to drive the two trucks he owned.

89 In 2009, however, Mr Selimovski and his family were in the process of moving to Kinglake when misfortune struck. At that time, his trucks (which were valued at $85,000 each but were uninsured) and most of his personal belongings were destroyed in the bushfires that devastated that community. He was left in financial disarray, became very sad and depressed, and turned to using methylamphetamines (or ice). He has not worked since.

90 The first factor in mitigation is that Mr Selimovski has only a comparatively modest criminal history.

91 In 1993, he was convicted of burglary and theft and placed on a community based order. In 1994, he was convicted and fined for possessing amphetamine. In 1995, he was convicted and fined for resisting police. In 2000, he was convicted and placed on a suspended sentence for aiding and abetting trafficking in amphetamine. (Also, he has been convicted and fined or given suspended sentences for driving offences in 1997, 2007, 2009 and 2012.)

92 Mr Selimovski's only conviction for an offence of violence, albeit not actual violence, was sustained in May 2009 in rather unusual circumstances. He pleaded guilty in the County Court to recklessly setting a trap to cause serious injury. In 2006, police attended his home at the request of his wife, as she was concerned he was dead. Once they determined he was alive and well, police noticed bare wires running between brackets on the roof guttering of the house. The wires were plugged into a power point, albeit it was switched off at the time. If switched on, the wires, if touched, could cause an electric shock and perhaps serious injury. The judge accepted that Mr Selimovski had the wires in place to protect his family at night or when he was away, and that he and his wife had a well-founded fear that persons had been on their roof following his acquittal of a stabbing charge. Only two months before sentence, he had lost his assets in the Kinglake bushfires. The judge imposed a suspended sentence of imprisonment.

93 Thus, while he is no stranger to the criminal law, I accept that there is nothing in Mr Selimovski's criminal history suggesting he has any disposition to violence generally or that he is likely to repeat the behaviour of the type he engaged in on 17 May 2014.

Background to and mental condition at time of offending

94 The second factor in mitigation concerns Mr Selimovski's mental condition at the time of the offending and the background to that offending.

95 Mr Desmond explained that, given Mr Selimovski's loss of property in the 2009 bushfires, he was particularly sensitive to anyone wrongly taking from him the little he had left, which, it is plain, he perceived Adrian and Shane Grech had done. He further submitted that I should be satisfied, on the balance of probabilities, that, at the time of the offending, Mr Selimovski was also suffering from mixed anxiety and depressive mood disorder; that the disorder made some contribution to his offending by reducing his ability to tolerate the stress and frustration precipitated by his perception that he had been wronged, and to reason and make sound judgments; and that this in turn reduced his moral culpability and the weight to be accorded to principles of general and specific deterrence.

96 In support of those submissions, Mr Desmond tendered in evidence a report (of 8 May 2016) by psychologist Ian Mackinnon, a report (of 1 March 2012) by psychiatrist Dr Channarayapatna Prasanna and a letter (of 6 March 2014) from general practitioner Dr Vivian Ouraha to a mental health clinic. He also called Mr Mackinnon to give viva voce evidence.

97 Mr McWilliams submitted that the evidence was not sufficient to conclude that Mr Selimovski was suffering from any symptoms of the disorder at the time of the offending, or, if he was, to what extent those symptoms operated on him at that time.

98 I am satisfied that Mr Selimovski was extremely angry because of his belief that he had been wronged by Adrian and Shane Grech. Having considered the evidence of Mr Mackinnon and the related documents, I am also satisfied that, at the time of and in the lead-up to the offending, Mr Selimovski was suffering from mixed anxiety and depressive mood disorder and that the disorder made a contribution to his offending by reducing his ability to tolerate the stress and frustration caused by this perception that he had been wronged, and to reason and make sound judgments.

99 That said, while I consider that his moral culpability is reduced in consequence, it is reduced only by a very modest degree. While his tolerance and his ability to reason and make sound judgments were blunted by the effects of his affliction, he had not lost all ability to reason. He was told repeatedly by Mr Gurkan and Mr Yusuf to desist before becoming aware of the people outside the house, and therefore had plenty of time and independent advice to cause him to reconsider his idiotic plan.

100 For the same reasons, the importance of general and specific deterrence are likewise reduced only by a very modest degree.

101 The third matter in mitigation is that Mr Selimovski pleaded guilty to the charge of recklessly causing injury. I accept that that plea also evidences a measure of remorse for that offence.

102 As I indicated earlier, I do not consider Mr Selimovski is remorseful for the murder, particularly given his plea of not guilty on the bases that he was not the one who fired the handgun and did not have the mens rea required for that offence. Given the remarks he made to Mr Mackinnon,[8] however, I do accept that he does feel sorry for Mr Monteath and his family, which is at least a decent human reaction. I also accept that, in so far as he was prepared to plead guilty to manslaughter prior to trial, he was prepared to accept responsibility for involvement in causing Mr Monteath's death.

103 The fourth matter in mitigation is that I am satisfied that Mr Selimovski has reasonable prospects of rehabilitation - not good or excellent, but at least reasonable.

104 There are essentially four reasons for that conclusion. First, as I have said, Mr Selimovski has only a limited criminal history and does not appear to be violent by nature.

105 Secondly, while he has not worked since he lost his livelihood in the 2009 bushfires, I accept that Mr Selimovski has shown that he can work hard, hold down a job and provide for his family. I am also prepared to accept he can do so again in the future. That said, the length of the total effective sentence and non-parole period I must impose will mean that he will be of retirement age by the time he becomes eligible for release.

106 Thirdly, Mr Selimovski's plea of guilty and remorse in respect of the lesser offence, and his sympathy for Mr Monteath and his family, suggest he is capable of rehabilitation.

107 Fourthly, the foregoing factors persuade me that, despite the gravity of the principal crime of which he has been found guilty, it is unlikely that Mr Selimovski will offend in a violent manner in the future.

108 The final matter in mitigation concerns Mr Selimovski's age and how that is likely to impact on the hardship of his sentence.

109 As I have said, Mr Selimovski turns 51 today. His parents are old and some of his children are quite young. It is unlikely that his parents will be alive by the time he is eligible for parole, a matter which he ruminated about with Mr Mackinnon.[9] Equally, he will miss the formative years of his three younger children's lives. Further, as I indicated earlier, it is likely that he will be of retirement age by the time he becomes eligible for release. Thus, a substantial proportion of the rest of his life will be served in prison, and he will miss very significant aspects of the lives of his loved ones.

110 While these factors cannot compel an inappropriately low sentence, they can and in this case should have a moderating effect on the sentence to be imposed.

111 I turn now to the purposes of sentencing. Section 5(1) of the Sentencing Act 1991 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.

112 In my view, general deterrence,[10] just punishment and denunciation are very important considerations in the present case. People should understand that behaviour of the type engaged in by Mr Selimovski is denounced by this Court and will result in punishment that reflects that a life has been lost as a result of reckless behaviour committed in senseless circumstances and that the lives of Mr Monteath's loved ones have been marred forever.

113 While specific deterrence[11] must be given weight as well, I have given it less weight than otherwise on account of Mr Selimovski's limited prior convictions, his age and his reasonable prospects of rehabilitation, and the related conclusion that I think it unlikely he will offend in a violent manner in the future. Further, the sentence to be imposed as a result of the weight given to general deterrence, just punishment and denunciation will have the effect of deterring Mr Selimovski from further offending in any event.

114 Given those same factors, there is a lesser need than otherwise to give weight to protection of the community as an additional and separate sentencing purpose. Again, the community will be protected by the sentence produced as a result of the weight to be given to other sentencing purposes.

115 Rehabilitation remains an important sentencing purpose in this case. In my view, given the reality that Mr Selimovski must be released eventually and given that he does have reasonable prospects of rehabilitation, protection of the community will be better served by the fixing of a sentence that maximizes his chances of rehabilitation both in custody and upon his eventual release.

116 In so far as I can determine them, I have had regard to current sentencing practices for murder and recklessly causing injury.

117 Sentencing statistics show that, for the period from 2009-10 to 2013-14, the average non-life sentence for murder ranged from about 18-and-a-half years' imprisonment in 2009-10 to about 22 years' imprisonment in 2013-14; the median sentence was 20 years' imprisonment, as was the mode; and the median non-parole period was 16 years, as was the mode.[12]

118 Sentencing statistics also show that, for the period from 2008-09 to 2012-13, of the 23 per cent of cases in which immediate gaol terms were imposed in the County Court and the Supreme Court for recklessly causing injury, the average ranged from ten months' imprisonment in 2008-09 to 14 months' imprisonment in 2012-13.[13]

119 Of course, these statistics are of limited utility, mostly because they do not distinguish cases according to their most important sentencing considerations - such as the seriousness of the offence, whether there were significant aggravating or mitigating factors, whether there was a plea of guilty or not guilty, whether or not there were significant prior convictions, and so on. Nevertheless, they do give some guidance.

120 Sometimes, case comparisons can be a useful tool in gauging current sentencing practices. However, counsel were unable to direct me to any cases similar to the present case. My own researches also have failed to produce any meaningful comparators.

121 Thus, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentences for Mr Selimovski's offences, with no particular guidance from case comparisons.

122 That said, in sentencing, it is almost always difficult usefully to compare other cases in any event. No two cases are ever truly alike. And, in any event, sentences are not precedents to be distinguished or applied.

123 Section 5(3) of the Sentencing Act 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 common law principle of parsimony. I have applied that principle and this provision when fixing sentence.

124 I have also had regard to the sentences imposed by Macaulay J on Mr Yusuf and Mr Gurkan.[14]

125 To be sure, there are limits to any such comparison, not least because the co-accused were both convicted of manslaughter following pleas of guilty and after providing statements to police and promising further assistance to the authorities, whereas Mr Selimovski was convicted of murder following a trial, without providing or promising any such assistance. On the other hand, all three accused pleaded guilty to recklessly causing injury.

126 On 23 December 2015, Macaulay J sentenced Mr Yusuf to five-and-a-half years' imprisonment on manslaughter; to 18 months' imprisonment on recklessly causing injury, with six months' cumulation; and thereby to a total effective sentence of six years' imprisonment, in respect of which he fixed a non-parole period of four-and-a-half years. His Honour declared, pursuant to s 6AAA of the Sentencing Act, that, had Mr Yusuf not pleaded guilty, he would have imposed a total effective sentence of ten-and-a-half years' imprisonment with a non-parole period of eight years.[15]

127 The same day, Macaulay J sentenced Mr Gurkan to six years' imprisonment on manslaughter; to 18 months' imprisonment on recklessly causing injury, with six months' cumulation; and thereby to a total effective sentence of six-and-a-half years' imprisonment, in respect of which he fixed a non-parole period of five years. His Honour declared, pursuant to s 6AAA, that, had Mr Gurkan not pleaded guilty, he would have imposed a total effective sentence of 12 years' imprisonment with a non-parole period of nine years.[16]

128 As I have said, Mr Yusuf and Mr Gurkan each had provided significant assistance to the authorities. It is plain from Macaulay J's reasons for sentence that, in combination with their remorse and pleas of guilty, Mr Yusuf and Mr Gurkan's cooperation with the authorities resulted in a significant discount from the sentences they otherwise would have received had they not given that cooperation.[17]

129 It is also reasonable to infer that his Honour's declarations under s 6AAA reflect the total effective sentences and non-parole periods that would have been imposed not only absent the pleas of guilty but also absent that cooperation, both past and promised.

130 What cannot be determined from the s 6AAA declarations, however, is the individual sentences that would have been imposed absent those factors. Nevertheless, given the substantial differences (in both absolute and percentage terms) between the actual total effective sentences and non-parole periods imposed and those stated in the s 6AAA declarations, and given the importance of pleas of guilty, remorse and assistance to the authorities as factors in mitigation, it is reasonable to assume that the sentence on each offence of recklessly causing injury would have been a good deal longer than the 18 months' imprisonment his Honour imposed. The amount of cumulation of those sentences might also have been greater.

131 Now, while I am not to sentence by reference to what I assume might have been the sentences on the co-accused on the charge of recklessly causing injury, or the level of cumulation of those sentences, absent the key mitigating factor which applied to the co-accused but which does not apply to Mr Selimovski (namely, assistance to the authorities), I am of the view that some regard must be had to the sentences and directions for cumulation actually imposed on the co-accused for those offences to ensure that the sentence and the direction for cumulation, if any, that I impose are not such as to deny Mr Selimovski equal justice.

132 The same considerations apply, perhaps with less force given the differences in the nature of the offences, when having regard to the sentences imposed on the co-accused for manslaughter and fixing the sentence on Mr Selimovski for murder.

133 As will be seen shortly, I have determined that Mr Selimovski should be sentenced to two years and three months' imprisonment for recklessly causing injury. I have also determined that the same level of cumulation as directed by Macaulay J - i.e. six months - should be directed in Mr Selimovski's case. In my view, six months of cumulation caters for the additional criminality in directing Mr Gurkan to fire the shotgun and the fact that a second victim was harmed but also balances the requirements of totality, particularly in circumstances where the vastly greater criminality is present in Mr Selimovski's offence of murder, and the fact that both offences occurred as part of the one episode of offending, perhaps only seconds apart if not contemporaneously.

134 Before passing sentence, I shall deal with an ancillary order. At the plea hearing, Mr McWilliams filed an application, pursuant to ss 77 and 78 of the Confiscation Act 1997, for a disposal order in respect of several items seized that were used in or in connection with the offences of which Mr Selimovski was convicted. The application was not opposed by Mr Desmond. Accordingly, I make the order sought.

136 Balancing all considerations, I sentence Jumer Selimovski as follows:

a) for the murder of Benjamin Monteath, Mr Selimovski is convicted and sentenced to 22 years' imprisonment;

b) for recklessly causing injury to Shane Anthony Grech, Mr Selimovski is convicted and sentenced to two years and three months' imprisonment;

c) six months of the sentence on the offence of recklessly causing injury is to be served cumulatively upon the sentence for murder, which makes a total effective sentence of 22-and-a-half years' imprisonment; and

d) in respect of that total effective sentence, a non-parole period of 17 years is fixed.

137 I declare that, including today, 752 days of pre-sentence detention are to be reckoned as already served under the sentence.

138 Pursuant to s 6AAA of the Sentencing Act, I declare that, but for Mr Selimovski's plea of guilty to the charge of recklessly causing injury, I would have imposed a sentence of three years' imprisonment for that offence.

[1] See DPP v Yusuf & Gurkan [2015] VSC 763 (Macaulay J).

[2] There was evidence from Joel Graham, Shane Grech and Wayne Grech to the effect that, or consistent with the view that, the man with the fire extinguisher fired a handgun. It was accepted by the parties at trial that the man with the fire extinguisher was Mr Yusuf. It was also accepted that Mr Gurkan did not fire the handgun, that there was only one handgun and that therefore only Mr Selimovski or Mr Yusuf could have fired the fatal shot. One possible explanation for the jury's verdict is that they considered that the evidence of those witnesses on this point was unreliable and mistaken, perhaps because, in the heat of the moment, while it appeared to them that the person holding the fire extinguisher held and fired a handgun, the CCTV footage might be thought to be inconsistent with that view and instead consistent with the view that the person standing behind him and to his right shoulder (namely, the person the parties agreed was Mr Selimovski) that fired the handgun. This view, of course, would be consistent with the essential aspects of the accounts of Mr Yusuf and Mr Gurkan.

[3] In evidence-in-chief, Mr Gurkan said that he saw people outside the house, and told Mr Selimovski of this fact and that they should turn back, before Mr Yusuf started spraying the car (see, e.g., T 248-249). However, I preferred Mr Yusuf's account in evidence-in-chief on this issue (see, e.g., T 385-386), which is reflected in the summary I have just given. I consider that version to be more consistent with the CCTV and, in any event, I am satisfied of it beyond reasonable doubt.

[4] In evidence-in-chief, Mr Gurkan said that Mr Selimovski said, "Fuckin' fire, cunt, fire" (T 250), whereas Mr Yusuf's evidence was that he said, "Fire at the car, fire at the car" (T 386). Again, I preferred Mr Yusuf's evidence on this particular issue and am satisfied of it beyond reasonable doubt.

[5] The exception is that what was once the felony-murder rule is now put on a statutory footing - see s 3A of the Crimes Act 1958 - which was inapplicable in this case.

[6] See s 3 of the Crimes Act 1958.

[7] See s 18 of the Crimes Act 1958.

[8] See Mr Mackinnon's report of 8 May 2016 (Exhibit 1) at p 5.

[9] See Mr Mackinnon's report of 8 May 2016 (Exhibit 1) at p 3.

[10] I have already indicated that the need for general and specific deterrence is moderated to a very modest degree on account of the affliction under which Mr Selimovski laboured at the time of the offending.

[11] See the remarks in the previous footnote.

[12] Sentencing Advisory Council, Sentencing Snapshot (No 171) - Murder, May 2015, pp 2-4.

[13] Sentencing Advisory Council, Sentencing Snapshot (No 159) - Causing injury recklessly, June 2014, pp 2-5.

[14] See DPP v Yusuf & Gurkan [2015] VSC 763 (Macaulay J).

[15] See DPP v Yusuf & Gurkan [2015] VSC 763 (Macaulay J) at [73].

[16] See DPP v Yusuf & Gurkan [2015] VSC 763 (Macaulay J) at [74].

[17] See DPP v Yusuf & Gurkan [2015] VSC 763 (Macaulay J) at, e.g., [25]-[39].