IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0220

Director of Public Prosecutions 	Crown	
		
v 		
		
Mikhael Myko	Accused	

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JUDGE:	Beale J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	29 June 2023	
DATE OF JUDGMENT:	29 June 2023	
CASE MAY BE CITED AS:	DPP v Myko	
MEDIUM NEUTRAL CITATION:	[2023] VSC 369	

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CRIMINAL LAW — Sentence following relatively early plea of guilty to one charge of causing serious injury recklessly — Serious injury caused by discharge of firearm — No prior convictions — No relevant subsequent convictions — Evidence of remorse — Good prospects of rehabilitation — Total effective sentence of 806 days’ imprisonment being time served on remand.

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Ms A Haban-Beer	Office of Public Prosecutions	
			
For the Accused	Dr M Gumbleton	Milides Lawyers	

HIS HONOUR:
1	Mikhael Myko, you pleaded guilty to one charge of causing serious injury recklessly, an offence which carries a maximum penalty of 15 years’ imprisonment.  
CIRCUMSTANCES OF OFFENCE
2	The circumstances of your offending were as follows.  On 1 March 2019, you attended the Melbourne Pavilion in Kensington.  A number of boxing matches were being staged at the venue that night.  You were seated at Table 28 along with a number of associates including Abdullah El Nasher and Osamma Allouche who had arrived earlier.  You, El Nasher and Allouche were all armed with loaded handguns.  
3	I do not need to determine when or how you came to be armed with a loaded gun.  You told the forensic psychologist who assessed you that your brother Matthew brought the gun to the venue and that you took it from him at the venue.  I do not place any weight on self‑serving hearsay statements made to your legal team or your forensic psychologist.  
4	During the evening, there was verbal conflict between the people on your table and the people on nearby Table 64 who included Benjamin Togiai, Omar Bchinnati and Joseph Abouchaya.  Abouchaya was also armed with a handgun.  The people on Table 64 were eventually asked to leave the venue by security.  They gathered on the footpath outside the main entrance to the Pavilion.  Your group moved outside around the same time although you and one of El Nasher’s brothers, Ali, went back inside the venue to find the two women who had come to the venue with your group.  Around 10:00pm, whilst you were making your way to the exit with Ali and the two women, El Nasher fired five shots at people on the footpath, striking Togiai fatally in the chest and Bchinnati in the upper left thigh.  Allouche also fired a shot as El Nasher retreated but did not hit anybody.  Many of the patrons who were out on the footpath retreated inside the venue, including Abouchaya who had his handgun drawn as he entered the foyer.  You fired four shots at him, two of which struck him, one in the abdomen and one in the right leg.  You and Ali then went over to Abouchaya as he lay on the foyer floor.  Ali stomped on him and punched him.  You struck him with your handgun to the back of his head.  As well as gunshot wounds, Abouchaya suffered facial injuries but I note that these are not relied upon by the prosecution for the charge to which you have pleaded guilty.  
5	You fled interstate with El Nasher and were arrested in NSW on 8 March 2019.  In a record of interview conducted on 9 March 2019 you admitted to being at the boxing event but denied seeing or being involved in any incident.  You claimed you got very drunk at the event and couldn’t remember who you had been with at the event.  
6	I note that El Nasher is awaiting sentence after a trial, having been convicted of murdering Mr Togiai and intentionally causing serious injury to Mr Bchinnati.  At that same trial, Allouche, whom the prosecution alleged was criminally involved in El Nasher’s offending, was acquitted of all charges.  
Victim Impact
7	Abouchaya was conveyed to Royal Melbourne Hospital with life threatening injuries on the night of the shooting.  The single gunshot wound to his abdomen caused significant damage to his bowel and colon.  He underwent emergency surgeries.  He spent six days in the ICU.  He was discharged from hospital on 28 March 2019.
8	On 13 January 2020, Abouchaya made a police statement stating he had no memory of the events in question.  
9	There is no victim impact statement.  
PROCEDURAL HISTORY
10	You were arrested on 8 March 2019 and charged with attempted murder et al on 11 March 2019.  
11	In October 2020 and February 2021, a contested committal was conducted but was not completed.  
12	On 15 July 2021, you offered to plead guilty to the current charge but on the basis that you fired after Abouchaya pointed his gun at you.  That offer was rejected on 28 July 2021.  
13	In August 2021, your contested committal hearing was completed.
14	On 19 August 2021, you were committed to stand trial and granted bail to live with your parents and siblings.  Your bail conditions included daily reporting and a curfew between 7:00am and 7:00pm, unless in the company of a parent.  I note that some 3 months of the time you spent in custody before being granted bail was for a subsequent conviction.  
15	On 24 November 2022, the prosecution offered to accept a plea to the current charge on the following terms (underlining added): 
a)	Abouchaya was in possession of a firearm;
b)	Abouchaya’s associates Togiai and Bchinnati had just been shot on the street/footpath out the front, causing some panic;
c)	Abouchaya entered the foyer with a firearm in his hands, held in a downward position; and
d)	Although not clear from the CCTV, having regard to Abouchaya’s position on CCTV upon entering, the firearm would have still been in the possession of Abouchaya upon his entry to the foyer.  
16	On 27 April 2023, you agreed to plead guilty to the current charge on those terms.  
17	On 1 May 2023, you were arraigned before me and pleaded guilty.  
18	The prosecution submits that in all the circumstances your plea of guilty was at a relatively early stage and evidences remorse.  I accept that submission.  
CIRCUMSTANCES OF OFFENDER 
19	Turning to your personal history and circumstances, you were born in a Turkish refugee camp on 23 September 1993, making you 25 at the time of your offence and 29 now.  Your parents had fled from Iraq to Turkey, your father having been a soldier in the Iraqi army.  You are the eldest of four children, one of whom is deceased.  Your brother Matthew died on 7 August 2019 in a motor vehicle accident whilst you were on remand for this charge and, regrettably, you were not permitted to attend his funeral.  
20	Your family emigrated to Australia after your first birthday.  Your siblings were all born here.  When you were still of primary school age, your family moved to the US for 10 years but returned to Australia when you were 15 or 16.  You attended Broadmeadows State School, completing Year 11 but not Year 12.  
21	Your relationship with your parents whilst growing up was conflictual.  You told the psychologist Luke Armstrong, who provided a report on you, that both parents subjected you to excessive corporal punishment.  
22	Since leaving school you have had various jobs including car cleaner, car detailer,  driver, warehouse man and labourer.  
23	In your early 20s, you began experimenting with drugs, including cocaine.  You became involved with the El Nasher family, meeting Ali El Nasher at a club.  You worked in the El Nasher panel shop for a time.  There was conflict between the El Nashers and another group, which I’m told led to the violence at the boxing event.  
Character References
24	Since being released on bail, you have lived with your parents and sisters.  
25	I have received character references from your parents, younger sister, an aunt, an uncle and a friend.  It seems you have turned your life around, leading a healthier lifestyle, steering clear of drugs and negative peer groups, building a better relationship with your parents and working in the family trucking business.  I place particular weight on what your parents say about the progress you have made since being released on bail.  All the character referees speak of your remorse over your offending.  
Psychological Report
26	I was provided with a psychological report about you by Luke Armstrong.  
27	The main point I take from Mr Armstrong’s report about you is that you do not have any mental illness that may hamper your continued rehabilitation.  
28	He says you may benefit from drug counselling to maintain a healthy lifestyle.  You may wish to take up that suggestion.  I am not going to impose it on you.  
SUMMARY OF MITIGATING CIRCUMSTANCES
29	The mitigating circumstances which I will take into account in sentencing you may be summarised as follows.  
•	First, you pleaded guilty.  Your offer to plead guilty was made at a relatively early stage in proceedings.  A plea of guilty in a time of pandemic has extra utility because of case backlogs.  
•	Second, based on your plea and your character references, I find you are remorseful.
•	Third, you have no prior convictions.  There are minor subsequent convictions but they are irrelevant.  
•	Fourth, your presentence detention (806 days) occurred during pandemic restrictions which made prison life considerably harsher.  That harshness included being refused permission to attend your younger brother’s funeral.
•	Fifth, you have been on onerous bail conditions for a long time (677 days).  
•	Sixth, for a lengthy period, you had the charge of attempted murder hanging over your head.
•	Seventh, you were a relatively young man at the time of the offence in 2019.  
•	Eighth, based on lack of priors and your progress since being released on bail, you have good prospects of rehabilitation 
SENTENCE 
30	The prosecution said this in their written plea submissions: 
Notwithstanding the seriousness of the offending … the Prosecution concedes that a straight sentence comprising of time served in presentence detention would be within range.
31	I agree.  In my view, consolidating your rehabilitation is as much in the community’s interests as it is in yours.  Disrupting that rehabilitation by sending you back to jail would be counter productive.  
32	Accordingly, the sentence I impose on you is a sentence of 806 days’ imprisonment.
33	I declare that you have served 806 days by way of presentence detention, meaning you have already served your sentence 
34	But for your plea of guilty I would have imposed a sentence of 4 years’ imprisonment with a minimum term of 2 years and 6 months’ imprisonment.  
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