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[2019] VSC 502
General information, not legal advice.
Supreme Court of Victoria
2019-07-26
Beale J
Original judgment source is linked above.
CRIMINAL LAW - Sentence - Intentionally causing serious injury in circumstances of gross violence - D1 and D2 doused victim in petrol and set him on fire, striking him with metal bars when he tried to escape - Victim would have died but for medical intervention - D1 and D2 intended to cause really serious injury - Devastating injuries - Offending premeditated - Upper range example of offence - Plea of guilty - Remorse - D2 played active but lesser role than D1 - D2's childhood blighted by profound deprivation - Crimes Act 1958, s 15A - Bugmy v The Queen (2013) 249 CLR 571 - Nash v The Queen [2013] VSCA 172; (2013) 40 VR 134 - ;
1 Peter Gencev and Peter Newman, on 4 February 2019, you both pleaded guilty to one charge of intentionally causing serious injury to Joshua Riley in circumstances of gross violence.[1] The maximum penalty for that offence is 20 years' imprisonment.
2 Through your counsel, both of you accepted completely the prosecution summary of facts. It stated, relevantly:
Hey D don't go factory pls there was drama I'll see you soon with Peter.
Get nick [sic] and hope out of the factory pls and then leave also. Let me know when done.
Hey get hope and Jordy out of there and let me know as soon as done
'The fire was so intense, I thought I was going to burn to death. The end of my bed was on fire, the cupboard and the carpet was on fire in my room. If I didn't get out I would have passed out from all the fire and would have burnt to death. Everything in the room except for the metal shelf was liable to burn, there were 12 sprinklers in that small area and none of them went off. My room was made up of wooden shelves, a plastic computer and papers. My bed was all material.'
... I thought if I am going to burn, you can burn with me. I remember going to cling onto him, I just got beat down straight away.
Peter you're gunna kill me, I'm gunna die, stop!
3 I wish to highlight a number of points from that agreed summary of facts.[5]
4 Your offence was premeditated. Several hours beforehand, you warned off others, indicating you were going to harm Riley.
5 Your victim was vulnerable, both at the outset of the attack, when he was in bed asleep, and later when you were striking him with the metal bars, after he was set on fire. You continued striking him with metal bars, even when he went to the ground and played dead.
6 Regarding your intent, I infer from your actions - dousing Riley with petrol, setting Riley alight, dousing him with more petrol, closing the door of his room, remaining outside armed with metal bars, striking him repeatedly with those bars when he tried to escape - that the intent of both of you was to inflict really serious injuries.[6]
7 Regarding the consequences of your actions, the physical and psychological harm you inflicted was devastating, and is ongoing, as mentioned in Riley's victim impact statement, which I will come to in a moment. Riley suffered burns to over 40 per cent of his body. He would have died but for medical intervention.
8 Regarding your respective roles, you, Newman, played the lead role, both beforehand and during the offending. You were sending text messages, telling people to leave the squat, indicating you were going there to do Riley serious harm. You threw accelerant over Riley and set him alight. Then you threw more accelerant over him.
9 Gencev, whilst Newman may have played the lead role, you were anything but passive. You were an active participant, striking Riley repeatedly with a metal bar when he emerged, burning, from the hell-hole of his room. Consequently, the fact that you played a lesser role is of limited significance.
10 Finally, let me say something about the duration of your violence against Riley. Yours was a protracted, sustained attack. It could not have lasted a matter of seconds, as Riley opined at the committal hearing. Riley's sense of time was obviously impaired by his ordeal: one only needs to reflect on the various stages of the attack summarised above to appreciate that. I am not able to say with precision how long your attack lasted - from the moment you first doused Riley with petrol to Riley escaping - but calling it a "protracted, sustained attack" is certainly justified.
11 Turning to Riley's victim impact statement, he says "the physical and psychological effects of my injuries have me constantly tired and in pain, with erratic sleep patterns. This make me unable to work for regular periods and severely limits my choices for employment."
12 He says that he continues to experience pain and discomfort from his scars and skin grafts. His skin sweats inconsistently, and causes intense itching. Scratching the itching causes secondary cuts frequently. He expects to undergo further corrective surgery as part of his ongoing scar management.
13 He continues to have nightmares and flashbacks about his ordeal.
14 He says in his victim impact statement that the flashbacks "strike me at all times of the day and can be triggered by cues such as seeing a news report of injuries or a fire. They always impart me with feelings of great fear, and can upset me for hours afterwards."
15 Riley was 28 years of age at the time of the offence, a relatively young man who, assuming a normal life span, has a long struggle ahead of him.
17 The prosecution submitted, and your counsel rightly conceded, that your offence was an upper range example of the offence of causing serious injury in circumstances of gross violence.[9]
18 The timing of a plea of guilty is relevant to the extent of the discount to be given for pleading guilty.
20 It is necessary to give a brief chronology to assess these submissions.
21 The offence occurred on 30 June 2017. You were both arrested the same day. The charges laid against you by the police included the current offence.
22 A charge of attempted murder was added before the committal.
23 Prior to the contested committal hearing you both offered to plead guilty to intentionally causing serious injury simpliciter. That offer was rejected.
24 There was a two-day contested committal hearing, one day in February 2018 and a second day in April 2018, at the conclusion of which you pleaded not guilty. At your request, Riley was called and cross examined at the committal hearing.
25 At the post committal directions hearing on 30 April 2018, the trial was listed to commence on 4 February 2019.
26 Both of you were indicted on charges of attempted murder and intentionally causing serious injury in circumstances of gross violence.[12]
27 You, Newman, offered to plead guilty to the current offence on 24 December 2018 via an email. The prosecution accepted that offer on 22 January 2019.
28 You, Gencev, offered to plead guilty to the current offence on 22 January 2019 and that offer was accepted on 23 January 2019.[13]
29 As mentioned above, you both formally entered your plea of guilty on 4 February 2019.
30 Having regard to that chronology, I do not consider either of you entered your pleas of guilty at the first reasonable opportunity. In relation to both of you, I am content to adopt the view ultimately adopted by your counsel, Gencev, in oral submissions:
"it's not an early plea, but by the same token, it's not a late plea, effectively on the door of the trial".[14]
31 Both of your pleas will attract a significant discount for their utilitarian benefits and for the fact that, in my view, they reflect remorse.
32 Let me turn to your personal histories, beginning with you, Newman.
33 You are currently aged 35, your date of birth being 24 January 1984.
35 When you were approximately five, your parents returned with you to Poland and you grew up there and eventually became a qualified pastry chef.
36 Your two brothers, who are considerably younger than you, were born in Poland.
37 You report that your father was a violent disciplinarian towards you as you grew up. You have had little to do with him during your adult years.
38 Your parents separated when you were 20 and, in 2005, at the age of 21, you returned to Australia to live. Your mother and brothers also eventually came to Australia to live a year later.
39 You have a good relationship with them. Your mother and one of your brothers provided written character references for you. Your mother describes you as having been a positive role model for your younger brothers.
40 You have had two significant intimate relationships but you have never married and have no children.
41 During your twenties you had a good work record, working in the hospitality industry and in factories. You managed the well-known pizza restaurant Topolino's in St Kilda for a time, having begun work there as a dishwasher.
42 You were a recreational user of illicit drugs (including ecstasy and cocaine) during your twenties, but at about the age of 27 you were introduced to ice by co-workers at a factory and, as your dependency on that drug grew, your work habits and your personal relationships deteriorated. You eventually found yourself unemployed and homeless and, when you wore out your welcome "couch surfing" at the homes of friends and associates, you took to living in squats and continued using ice. In the lead up to the offence, your counsel told me that you were using ice on a daily basis and had been awake for several days immediately prior to the offence.
43 You told the psychologist Carla Lechner that Riley "was a violent and territorial man whom [you] wished to scare out of the property [you] were squatting in."[15] Your actions went way beyond scaring, and whether or not Riley was the kind of man you described him to be, it in no way justified or mitigates your brutal actions.
44 Since being remanded in custody, you have undertaken a number of work, study and self-improvement programs. You achieved a sufficient level of trust in custody to be made a cook in the Staff Bistro at Barwon Prison, a position you have held for some time. Your relatively recent application to become a Peer Listener - that is, a prisoner who serves as a role model and confidant to other prisoners - has been supported by staff at the prison who describe your behaviour towards staff and other prisoners as excellent.
45 You also provided me with the results of eight drug screens of random urine samples provided by you between 7 November 2017 and 14 November 2019. All were negative for illicit drugs.
47 Your criminal record commenced in May 2011, when you were 27. You received a one-month suspended gaol sentence for driving whilst suspended. In October 2014 that suspended sentence was activated and you were fined for fresh offences, including trafficking and possessing drugs, possessing a prohibited weapon without exemption, possessing cartridge ammunition, possession of housebreaking implements, dealing in suspected proceeds of crime and multiple driving offences. In December 2014, you were fined for possessing and using ecstasy.
48 Significantly there are no prior convictions for violence, although the possession of ammunition gives one pause, especially as that conviction was recorded at the same time as convictions for drug offences, including trafficking drugs.
49 Turning to your personal history, Mr Gencev, you are now 36 years of age, having been born on 10 June 1983.
50 Your personal history is one of profound deprivation, enlivening the sentencing principles discussed by the High Court of Australia in Bugmy v The Queen.[16] The deprivation you experienced from birth explains to a large extent why you have a longstanding drug problem.
51 Your mother was a drug addict and prostitute who was in and out of jail. Your father was an alcoholic who has had little contact with you.
52 You were born addicted to heroin and required treatment with the sedative phenobarbitone from the outset. You featured in an article in the Sun newspaper published on 22 June 1983: the article's headline read, sadly, "The baby born a junkie."
53 When you were three, the Sun ran another story on you and your mother. Your mother was a prisoner at Fairlea Women's Prison and wanted you placed with her. Your mother was only allowed to see you six times a year for two hours at a time.
54 On 25 September 1988, when you were five, and your mother was again undergoing sentence, the same kind of article was run by the Sun or the Age.
55 When you were 12, your mother died in a car accident.
56 You had multiple carers growing up. Placements with members of your extended family did not last. Intermittent contact with your father and other family members sometimes raised hopes that were then unrealised.
57 You went to numerous primary schools and secondary schools. Your final years at school were spent at CBC St Kilda. To your great credit, you completed Year 12 there.
58 In October 1999 when you were 16 you went to live with the family of Pam and Peter Smith in Richmond. You got to know the Smiths earlier that year when you did work experience at Mr Smith's roofing business. The Smiths had two boys of their own who, like their caring and generous parents, also welcomed you into their family. You settled in well at the Smiths, though illicit drug use was an ongoing concern. According to your counsel's written submissions, by the age of 17 or 18, you were a regular user of speed or ice. In the report of clinical psychologist Dr Marcus Squirrel dated 28 April 2014, which was prepared in respect of drug trafficking charges against you, Dr Squirrel stated that you had a "Stimulant Use Disorder - Amphetamine Type (Severe)", noting that "Mr Gencev reports an 11 year history of abusing methylamphetamine."
59 After finishing school, you continued living with the Smiths, completed an apprenticeship in upholstery and worked in the Smith's roofing business.
60 In your early twenties, there was considerable contact with your father's side of the family and you worked for a time in a half-brother's construction business. But there was a falling out, contact with that side of the family ceased and your drug use spiralled.
61 Despite the Smith's continued support of you, in around 2013 you stopped working, began moving in and out of hotels or living on the streets, and used ice heavily.
62 Your counsel told me you were using ice heavily at the time of the current offence.
63 Your criminal record commenced in 2002 when you were 19. You were fined for theft from a motor vehicle and other offences. In 2010, you received a suspended sentence for driving whilst suspended, then, in 2013, for trafficking and possessing drugs and dealing in suspected proceeds of crime, you were placed on a 12 month community corrections order ('CCO'). Another CCO was imposed in early 2014 for drug offences.
64 Eventually, you breached both CCOs. In July 2014, for trafficking methylamphetamine, you received a sentence of imprisonment of 15 months with a minimum term of nine months. Mrs Smith, who gave evidence at your plea hearing, told me that you went to live with them again when you were released on parole but once parole finished, you ceased living at their home and in the lead up to your current offence, they had little contact with you. In September 2014, a further five months imprisonment was imposed in respect of breaching the CCO imposed in 2013.
65 On a positive note, you do not have any prior convictions for offences involving violence.
66 Turning to your respective prospects of rehabilitation, a number of considerations persuade me, Mr Newman, that your prospects of rehabilitation are good even though Carla Lechner, after formal testing,[17] found you to be a moderate risk of reoffending. She noted that you displayed victim empathy and also considered you to be remorseful. Your plea is further evidence of remorse and the references of your mother and brother Pawel support a finding of remorse.
67 You have a limited criminal history with no priors for violent offending.
68 You had a good work history up until your descent into daily ice use.
69 You appear to have been a model prisoner since your remand.
70 As mentioned, you continue to have the support of both your mother and brother, both of whom provided written references. Your mother says you can live with her upon your release from custody.
71 Carla Lechner's report does not suggest that you suffer from a mental illness or a personality disorder which might impede your rehabilitation.
72 As regards your prospects of rehabilitation, Gencev, I am guarded though not without hope. You have a long history of using methylamphetamine, no doubt stemming in large part from your traumatic childhood and early adolescence. Your counsel stated realistically in his written submission that your "prospects of rehabilitation are contingent upon [your] capacity to abstain from drugs."
73 Mrs Smith testified at your plea hearing that they will support you with work and accommodation when you are eventually released from prison, which is another reason not to lose hope.
74 I am obliged to have regard to current sentencing practices in working out an appropriate sentence for each of you.
76 Head sentences in those cases ranged from 8 to 14 years and non-parole periods ranged from 6 to 11 years.
77 Your counsel, Gencev, also relied on two additional cases,[21] neither of which involved the victim being set on fire. Head sentences of 5 years' imprisonment and minimum terms of 3 years to 3 years and 3 months were imposed.
79 The case of Kilic featured in discussion at your plea hearing.
80 In Kilic, the offender, who pleaded guilty to intentionally causing serious injury, poured petrol over his partner, whom he knew to be pregnant with his child, and, a short time later, set her alight. She suffered burns to about 20 per cent of her body.
81 In Kilic, the High Court confirmed the sentence imposed by the trial judge, namely, 14 years' imprisonment with a non-parole period of 11 years.[24]
82 Your counsel both agreed that the High Court's summation of the injuries suffered by Mr Kilic's victim was equally applicable in this case. The High Court said at [35]:
"the physical and psychological pain and suffering inflicted on the victim in this case were immense and, according to the evidence on the plea, the consequences will continue to attend her for the rest of her life."
83 As one would expect, there are some significant dissimilarities between the facts of Kilic and the facts of this case_. Kilic_ was a case of domestic violence: this case is not. Kilic's victim suffered burns to her face: Riley did not. Also, Kilic's victim was pregnant and, because of her physical and mental injuries, she had an abortion.
84 On the other hand, in Kilic there was little premeditation and planning and the offence was not committed in company. Whereas Kilic's victim's burns covered about 20 per cent of her body, Riley suffered burns to over 40 per cent of his body. Moreover, Kilic called triple zero almost immediately after setting his girlfriend on fire;[25] you, by contrast, proceeded to beat Riley with poles as Riley, still on fire, tried to escape. In my view, in terms of seriousness, I consider this case is on a par with Kilic.
85 The High Court in Kilic said this about upper range examples of intentionally causing serious injury:
" ...an offence of intentionally causing serious injury which is towards the upper end of the range of seriousness is liable to attract a sentence upwards of 15 years' imprisonment."[26]
86 The cases upon which your counsel relied as comparable cases all predated this pronouncement by the High Court, save for R v Islam and R v Lindsay. It is difficult to reconcile the sentences passed in some of those cases, and other cases that I have considered, with the sentencing guidance provided by the High Court in Kilic regarding upper range examples of the offence of intentionally causing serious injury.
87 The offending by both of you was unbelievably cruel and the consequences immense for Riley.
88 Denunciation, just punishment and deterrence, both general and specific, must all be given due weight in the sentences I pass on you. Despite my finding that you, Newman, have good prospects of rehabilitation, specific deterrence is still relevant in sentencing you because of the finding by psychologist Carla Lechner that you are a moderate risk of violent reoffending.
89 There will be a lengthy gap between the head sentence and the non-parole period to try and promote your rehabilitation, a sentencing purpose which is as much in the community's interest as yours.
90 The sentence I pass on you Gencev will be lower because of the profound deprivation you suffered as a child and adolescent.
94 But for your plea of guilty I would have sentenced you to 16 years with a minimum term of 12 years.
95 I declare you have served 636 days of your sentence by way of pre-sentence detention, not including today.
99 But for your plea of guilty I would have sentenced you to 15 years with a non-parole period of 11 years.
100 I declare you have served 725 days of your sentence by way of pre-sentence detention, not including today.
[1] Section 15A of the Crimes Act 1958.
[2] What this unidentified male did, or where he went, after arriving at the warehouse is unknown.
[3] Charge 1 - Intentionally causing serious injury in circumstances of gross violence is the conduct referred to in paragraphs 33 to 44 of the Summary of Prosecution Opening.
[4] In the statement of Dr Harley Myers, a plastic surgery registrar at the Alfred Hospital, it was noted that the burns were of "mixed depth" and were secondary to "accelerant flame". See Depositions, Director of Public Prosecutions v Peter Gencev and Peter Newman (S CR 2018 0108 and S CR 2018 0109), 549-550.
[5] In Nash v The Queen [2013] VSCA 172; (2013) 40 VR 134 at [10], Maxwell P said that the following matters were relevant to an assessment of where an offence falls on the spectrum of seriousness for the offence of intentionally causing serious injury:
• the offender's proven intent: was it to cause serious injury, or really serious injury, or the maximum possible injury?;
• the seriousness of the injury actually caused (both the immediate and the long-term consequences for the victim);
[6] A fair minded reader may wonder why I have stopped short of inferring that you intended to kill Riley. You are not to be sentenced for attempted murder, an offence which involves an intention to kill. The prosecution withdrew the charge of attempted murder.
[9] Transcript of proceedings, The Queen v Peter Gencev & Peter Newman, S CR 2018 0108; S CR 2018 0109, 22 May 2019), 48.
[11] Peter Gencev, 'Sentencing Submissions on behalf of Peter Gencev', Submission in The Queen v Peter Gencev, S CR 2018 0108, 15 May 2019, 61.
[13] Transcript of proceedings, The Queen v Peter Gencev & Peter Newman, S CR 2018 0108; S CR 2018 0109, 22 May 2019), 15.
[15] Report of Clinical Psychologist Carla Lechner dated 15 April 2019.
[17] Using the Third Edition of the Historical Clinical Risk Assessment Tool.
[18] Transcript of proceedings, The Queen v Peter Gencev & Peter Newman, S CR 2018 0108; S CR 2018 0109, 22 May 2019), p64.
[19] R v Catania [2006] VSC 189 (D convicted after trial - victim set on fire, suffering burns to 60 per cent of his body - HS 9 y, NPP 6 ); Ferrer v The Queen [2016] VSCA 295 (Multiple blows to victim's head with a hammer - HS 8 y, NPP 6 y) R v Islam [2019] VCC 217 (Arson - causing serious injury recklessly (4 counts) - causing injury recklessly (11 counts) - TES 11 y, NPP 7y); Jafari v The Queen [2015] VSCA 295 (main victim stabbed repeatedly in her own home by her estranged husband - TES 13 y, HS 10, NPP 9); R v Kilic (2016) 259 CLR 256; [2016] HCA 48 (victim, who was pregnant to the offender, set on fire, suffering burns to 20 per cent of her body - HS 14 y, NPP 11 y) R v Lindsay [2017] VCC 516 (multiple blows to head - TES 9 y 6m HS 8 y NPP 7 y). I note that where I have referred to the TES and the HS for a particular case , HS refers to the sentence passed for the offence intentionally causing serious injury.
[20] R v Islam [2019] VCC 217 was an arson case involving multiple counts of recklessly causing serious injury or injury.
[21] R v Ravenhorst [2015] VSC 308 and DPP v Hudgson [2016] VSCA 25.
[22] Judicial College of Victoria, 'Victorian Sentencing Manual', Intentionally causing serious injury case collection (last update 16 July 2019), see 29.7.1.3 and 29.7.1.5.
[23] There is no statistical "snapshot" for the charged offence but there is for the offence of intentionally causing serious injury simpliciter: see "Sentencing Trends for Causing Serious Injury Intentionally in the Higher Courts of Victoria 2012-13 to 2016-17 (Sentencing Snapshot 213; Date of Publication: 28 June 2018). Sentencing Snapshot 213 states:
Imprisonment terms ranged from 2 months and 24 days to 12 years, while the median length of imprisonment was 5 years (meaning that half of the imprisonment terms were shorter than 5 years and half were longer).
Non-parole periods ranged from 7 months to 11 years and 6 months, while the median length of the non-parole period was 3 years, 3 months and 15 days (meaning that half of the non-parole periods were below 3 years, 3 months and 15 days and half were above). (see page 5)
[24] I do not overlook the fact in Kilic that he was also sentenced for two summary offences and there was some cumulation making a total effective sentence of 15 years. The sentences for the summary offences no doubt increased the non-parole period.
[25] Having done so, he didn't speak to the operator but threw the phone to another person nearby.
[26] R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [31] and [35].
The Queen
Gencev & Newman [2019] VSC 502
(2013) 249 CLR 571
(2013) 40 VR 134
(2016) 259 CLR 256