Gencev v The Queen
[2021] VSCA 188
•29 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0196
| PETER GENCEV | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, McLEISH and SIFRIS JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 March 2021 |
| DATE OF JUDGMENT: | 29 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 188 |
| JUDGMENT APPEALED FROM: | [2019] VSC 502 (Beale J) |
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CRIMINAL LAW – Appeal – Sentence – Intentionally causing serious injury in circumstances of gross violence – 13 years’ imprisonment, with 10 years non-parole – Whether assessment of offence seriousness erroneous – Parity – Lesser role in offending – Insufficient weight given to disadvantaged background – Profound childhood deprivation – Reduced moral culpability – Need for greater differential between co-offenders’ sentences – Leave granted – Appeal allowed – Applicant resentenced – Total effective sentence of 11 years’ imprisonment with non-parole of 7 years and 6 months – R v Kilic (2016) 259 CLR 256 considered – Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann [2021] VSCA 160 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Gibson | Victoria Legal Aid |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
SIFRIS JA:
Summary
The applicant, Peter Gencev (‘Gencev’), took part in a horrific attack on a sleeping man, in which his co-offender, Peter Newman (‘Newman’), poured petrol over the victim (‘M’)[1] and then set him alight. While this took place, the applicant guarded the door out of the room. His entire body on fire, M tried to escape but the offenders blocked his exit and struck him repeatedly with metal poles.
[1]The abbreviation is used for ease of reference not anonymity.
When M finally managed to break free, he was taken to hospital with burns to up to 50 per cent of his body and multiple lacerations. But for the prompt medical intervention, M would have died. His injuries will affect him physically and mentally for the rest of his life.
Each of the offenders pleaded guilty to one charge of intentionally causing serious injury in circumstances of gross violence, contrary to s 15A of the Crimes Act 1958. Newman was sentenced to 14 years’ imprisonment, with a non-parole period of 10 years. The applicant was sentenced to 13 years’ imprisonment with a non-parole period of 9 years.
The applicant now seeks leave to appeal against sentence on the following proposed grounds:
Ground 1:The learned sentencing judge erred in finding the case on a par with R v Kilic.
Ground 2:The learned sentencing judge erred in applying the parity principle by failing to give sufficient weight to:
(a) the applicant’s lesser role in the offending;
(b) the applicant’s lack of prior convictions for violent offences; and
(c) the applicant’s background of deprivation.
Ground 3:The learned sentencing judge erred in allowing R v Kilic to define rather than illustrate the range of sentences available.
For reasons which follow, we would uphold the parity ground but otherwise refuse leave to appeal. As has already been made clear, this was appalling offending. The judge rightly described it as ‘unbelievably cruel’. At the same time, there were key differences between the co-offenders which needed to be clearly reflected in the sentencing relativities between them.[2]
[2]Greenv The Queen (2011) 244 CLR 462; [2011] HCA 49.
First, the applicant had suffered what the judge described as ‘profound deprivation’ from birth. He was born addicted to heroin, his mother being a drug addict who was in and out of jail. His life up to the age of 15 was one of abandonment and chronic instability. Secondly, he played a lesser role in the offending than Newman who — the judge accepted — played the ‘lead role’. Both these matters bore directly on the applicant’s moral culpability.
The principle of equal justice requires that like cases be treated alike and that relevantly different cases be treated differently. In this case, in our view, a significantly greater differential than 12 months was required to reflect these relevant differences between the co-offenders. We would therefore resentence the applicant to 11 years’ imprisonment, with a non-parole period of 7 and a half years.
Circumstances of the offending[3]
[3]The circumstances of offending are taken from DPP v Gencev [2019] VSC 502 (‘Reasons’) and the Amended Summary of Prosecution Opening.
M was 28 at the time of the offending. The applicant was 34, and Newman was 33. The three men had been living together in an abandoned warehouse at Southbank. M had been living there for around six months, Newman for three months and the applicant for around one month. Other squatters also lived there.
In the lead up to the offending, the relationship between M and the other two men had become strained. Two of the other squatters at the premises had been stealing and using heroin, which led to M evicting them. The applicant and Newman would then let them back into the property, causing tension between them and M.
During the evening of 29 June 2017, M was at the warehouse when the applicant and Newman returned. Newman told M that he had been to deliver drugs to M’s ex-girlfriend. M was angry at this. He picked up a metal bar and told the applicant and Newman to leave. He told the applicant to take off one of his shoes and then he threw the shoe into a pile of rubbish, before forcing him out. M also spoke to Newman, and noticed that he smelled strongly of bourbon. M told Newman to leave the warehouse, following him out with the metal bar.
M then went to his bedroom. He was angry and decided that he would evict all the squatters from the building. He walked around the warehouse telling the other occupants to leave without packing. Most of the squatters left the warehouse at this time. M then went to his bedroom and fell asleep.
At 5:30 am, Newman sent a text message to one of the remaining squatters (‘P’),[4] telling him to get the others out of the warehouse. P tried to rouse M, as he was concerned about M’s safety after Newman’s text message. He was unsuccessful. P then tried to fortify the warehouse, by cutting the power and reinforcing the doors, as he still could not wake M.
[4]The abbreviation is used for ease of reference not anonymity.
P then left the warehouse and went to a nearby café. The applicant and Newman were there, with some of the other squatters. They had breakfast together, and the applicant and Newman told P that they were going to return to the warehouse.
At around 11:55 am on 30 June 2017, the applicant, Newman and an unidentified third male returned to the warehouse. They forced open a window, and immediately went to M’s bedroom. M was still asleep, lying on his stomach.
Newman was holding a petrol container and opened the bedroom door. He walked up to M, stood over him and poured petrol on him. The applicant was standing in the doorway, blocking it. M woke up immediately as a result of the liquid being poured on him. He smelt fuel, and Newman then threw something at him in order to ignite the accelerant. M’s body was immediately lit with flame. Newman was leaning into the room and threw more petrol at the victim. The applicant and Newman then closed the sliding door to M’s room and walked away.
M managed to stand up and then force the door open. He was immediately confronted by the applicant and Newman. They were armed with metal poles. Both the applicant and Newman struck M with the poles to the head and legs. At this stage, M was still on fire. He tried to hug Newman, thinking that he would set him on fire too.
M slid down Newman’s arm, and was struck by the applicant. The pair continued to strike M with the metal poles while he was on the ground. M lay still, pretending to be dead, but the applicant and Newman continued to hit him. M then decided to try and escape, managing to get to his feet after being knocked down a number of times. The applicant struck M to the back of the head with a metal bar and tried to strike him again. M managed to open the side door and fled out on to the street.
At that point, the applicant and Newman fled. A tradesperson passing by saw M and provided assistance and called 000. Several witnesses in the buildings surrounding the Southbank address observed the applicant and Newman hiding on the roof of the warehouse. They were arrested at the scene.
M suffered burns to between 42 to 50 per cent of his body, mostly to the torso, upper and lower limbs. He also suffered burns to his airway; fluid in the lungs; collapsed lung tissue; chest infection; multiple scalp lacerations; bilateral scalp haematomas; laceration to his left leg; laceration to his right hand, including to the tendon; and a fractured left forearm.
The applicant and Newman were interviewed by police. Newman gave a ‘no comment’ interview. The applicant admitted to being inside the warehouse at the time of the offending but denied any involvement. He said that he had been asleep on the couch and had woken up to see M on fire.
Assessing offence seriousness: comparison with R v Kilic[5]
[5](2016) 259 CLR 256; [2016] HCA 48 (‘Kilic’).
The offence of intentionally causing serious injury in circumstances of gross violence (‘the gross violence offence’) was introduced in 2013. It carries the same maximum penalty as the offence of intentionally causing serious injury — 20 years’ imprisonment — but carries a mandatory minimum non-parole period of 4 years unless there is a ‘special reason’.[6] As this Court has commented previously, the gross violence offence must be viewed as being ‘extraordinarily serious’.[7]
[6]Sentencing Act 1991 s 10.
[7]DPP v Hudgson [2016] VSCA 254, [85] (Weinberg, Whelan and Priest JJA).
The provisions identify a range of circumstances which can constitute ‘circumstances of gross violence’. In this case, three of the statutory alternatives were engaged, by reason that the offenders:
(a)‘planned in advance to engage in conduct and at the time of planning intended that conduct would cause a serious injury’;
(b)‘planned in advance to have with them and to use an offensive weapon and in fact use the offensive weapon to cause the serious injury;’ and
(c)continued to cause injury to M after he was incapacitated.
The prosecution submission on the plea was that:
overall the nature and objective gravity of this offending is at the highest end for this offence. It is a very serious example of a very serious offence.
The prosecutor relied on the following features as going to the seriousness of the offence:
·the injuries sustained by M were life-threatening and are ongoing;
·M was vulnerable, being unarmed and asleep at the time, and had no opportunity to defend himself;
·the two men used weapons, and acted together;
·the attack was pre-planned, with the petrol having been obtained in preparation for the attack and brought to the warehouse;
·the attack was protracted, with the initial dousing and ignition of the victim followed by repeated blows with the metal poles; and
·the attack continued despite M pleading with Newman to stop, saying that he was going to die.
Defence counsel on the plea conceded — as the judge noted in his reasons — that this was an ‘upper range’ example of the gross violence offence. Counsel also conceded that there had been pre-planning, that M was a vulnerable victim and that the offending had had a devastating effect on his life. He further accepted that the use of fire as a weapon was an aggravating feature.
Early in his plea submissions, defence counsel sought to compare the present offending with that dealt with by this Court, and subsequently by the High Court, in R v Kilic (‘Kilic’).[8] In that case, the 22-year-old offender had poured petrol over his domestic partner, who was pregnant with their child. He then held a lighter to her chest, igniting the petrol, causing her hair, face and clothing to be engulfed in flames. She sustained burns to 20 per cent of her body, which required complex surgery and skin grafting. It was accepted that she would remain scarred, possibly to large areas of her body, with protracted cosmetic and social implications. The pregnancy was terminated on account of the nature and seriousness of the injuries and the victim’s long-term prognosis.
[8](2016) 259 CLR 256; [2016] HCA 48.
The offender in Kilic pleaded guilty to one charge of intentionally causing serious injury and was sentenced to 14 years’ imprisonment for that offence. On appeal, this Court described the offending as ‘truly horrific’ and said that the ‘intentional setting on fire of any person with an ensuing and entirely predictable life-threatening burns to a large part of the body’ put the case within the ‘worst category of this offence’.[9] The Court concluded, however, that the sentence of 14 years for the offence of intentionally causing serious injury was outside the range reasonably open to the judge, and reduced it to 10 years and 6 months’ imprisonment.[10] On appeal by the Director of Public Prosecutions, the High Court held that this Court had erred in concluding that the sentence was manifestly excessive, and reinstated the sentence of 14 years’ imprisonment.[11]
[9]Kilic v The Queen [2015] VSCA 331, [31] (Redlich and Whelan JJA).
[10]Ibid [70].
[11](2016) 259 CLR 256; [2016] HCA 48.
On the plea, counsel for the present applicant submitted that this offence lacked some of the aggravating features of the offending in Kilic, where there was a background of family violence and the offending had resulted in the termination of a pregnancy. Accordingly, it was said, the present offence was ‘not quite at that level’. His Honour responded by pointing out that, unlike the present case, the offending in Kilic was spontaneous and unplanned. His Honour also noted — and defence counsel accepted — that the following statement by the High Court in Kilic was applicable to the present case:
[T]he physical and psychological pain and suffering inflicted on the victim in this case were immense and … the consequences will continue to attend her for the rest of her life.[12]
[12]Kilic (2016) 259 CLR 256, 272 [35]; [2016] HCA 48 (Bell, Gageler, Keane, Nettle and Gordon JJ).
For her part, the prosecutor accepted that the aggravating factor of domestic violence was absent from the present case. She submitted, however, that the important distinction between the two cases was that this offence was pre-planned to a much greater degree than Kilic. There were weapons used, and the assault continued whilst M was incapacitated. Again, whereas the offender in Kilic had provided some assistance to the victim, no assistance was given in the present case. On the contrary, she submitted, the offenders closed the door and then set upon M again with the poles when he came out of his room.
In his reasons, the judge noted defence counsel’s concession that, as in Kilic, the pain and suffering inflicted on the victim was ‘immense’ and the consequences would continue for the rest of his life. His Honour went on:
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: [M] did not. Also, Kilic’s victim was pregnant and, because of her physical and mental injuries, she had an abortion.
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, [M] suffered burns to over
40 per cent of his body. Moreover, Kilic called triple zero almost immediately after setting his girlfriend on fire; you, by contrast, proceeded to beat [M] with poles as [he], still on fire, tried to escape. In my view, in terms of seriousness, I consider this case is on a par with Kilic.
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.[13]
[13]Reasons [83]–[85] (citations omitted) (emphasis added).
As noted earlier, two of the proposed grounds of appeal against sentence make specific reference to Kilic. Ground 1 contends that the judge erred in finding the case ‘on a par with’ Kilic. Ground 3 contends the judge erred ‘in allowing R v Kilic to define rather than illustrate the range of sentences available’.
The submission for the applicant accepts that his Honour was required, in accordance with Kilic, to consider where the present offence fell on the spectrum of seriousness for the offence.[14] As on the plea, however, counsel submitted that the present case could not have been viewed as being ‘on a par with’ Kilic given that there was no equivalent in the present case to the following features which aggravated the offence in Kilic:
·the victim was a pregnant woman in a relationship of trust with the offender, and the offending occurred in a context of domestic violence;
·although the injuries were to a smaller proportion of the victim’s body, they were in sensitive areas such as her face, breasts and hands, as well as multiple other body parts, involving significant long-term health consequences, reduced functionality of hands and limbs and protracted cosmetic and social implications; and
·as a result of the injuries and the long-term prognosis, the pregnancy was terminated at the victim’s request.
[14]Kilic (2016) 259 CLR 256, 266 [19]; [2016] HCA 48 (Bell, Gageler, Keane, Nettle and Gordon JJ).
It was also submitted that, whereas there was only one offender in Kilic, the applicant’s role in the present offence was secondary to that of Newman. Further, it was said, the sentencing reasons in Kilic did not suggest that the offender had ‘a background of deprivation comparable to that of the applicant’.[15]
[15]DPP v Kilic [2015] VCC 392, [13]–[17].
Ground 3 relies on the following statement by the High Court in R v Pham:
It is … settled that a ‘sentence itself gives rise to no binding precedent’. Where, however, decisions of other courts in sentencing appeals are referred to in the context of determining whether a given sentence is manifestly excessive or inadequate, it should now be accepted that intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as ‘yardsticks’ that may serve to illustrate (although not define) the possible range of sentences available. A court must have regard to such a decision in this way unless there is a compelling reason not to do so, which might include where the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the decision irrelevant, or where the court is persuaded that the outcome itself in the other court was manifestly excessive or inadequate.[16]
[16](2015) CLR 550, 560 [29]; [2015] HCA 39 (French CJ, Keane and Nettle JJ) (citations omitted) (emphasis added).
The submission in support of this ground is that the sentencing judge:
placed undue weight on Kilic to the point where it defined the sentence rather than illustrated the possible range, so that other sentencing factors such as the applicant’s lesser role and deprived background were given insufficient weight.
Although the ground was expressed as a ground of specific error, it can be seen that in substance the complaint is that inadequate weight was given to other sentencing considerations. As those considerations are separately addressed under ground 2, it is unnecessary to deal further with ground 3.
In our view, proposed ground 1 is not reasonably arguable. The judge correctly identified the similarities and differences between the present case and the offending in Kilic. His Honour noted the aggravating features of the Kilic offending which were not present here but, at the same time, identified a number of aggravating features of the present case which were absent in Kilic. As the respondent correctly submitted, taking account of the relevant similarities and differences between the two cases, it was well open to his Honour to conclude that the present case was ‘on a par with’ the offending in Kilic having regard to its objective seriousness.
Ground 2: parity
Proposed ground 2 contends that the judge erred in applying the parity principle by failing to give sufficient weight to the applicant’s ‘lesser role in the offending, lack of prior convictions for violent offences [and] background of deprivation’. The submission was that the sentencing differential of one year between the applicant and Newman did not reflect the marked differences between them. (It was accepted at the hearing that the lack of prior convictions for violence was not a point of distinction.)
As to role, it was submitted that Newman had played ‘the lead role’, having sent the text messages telling people to leave the warehouse and then having thrown the petrol over M and set him alight. The applicant, on the other hand, had ‘played no apparent role in initiating or planning the offending’. Although he was present in support of Newman when M was set alight, it was said, his ‘active role commenced only after Mr Newman had set fire to the victim and the two began assaulting the victim with iron poles’.
In relation to the respective roles the judge said:
Gencev, whilst Newman may have played the lead role, you were anything but passive. You were an active participant, striking [M] 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.[17]
[17]Reasons [9].
As the prosecution summary made clear, the applicant was involved in the attack on M from the outset. He stood at the doorway, preventing any escape, while Newman threw the petrol over M and ignited it. Further, the applicant assisted in closing the sliding door while M was burning and then, when he tried to escape, repeatedly beat him with a metal pole.
It seems clear, nevertheless, that Newman was the instigator and the prime mover. He had sent a series of text messages during the morning, warning other residents to leave the warehouse, or to stay away, and saying at one point that he was ‘going to break someone’s legs’. And, most significantly, it was Newman who brought the petrol container to M’s room, poured the petrol over him and set him alight.
The evil and cruel act of actually pouring petrol over someone, then setting them alight and then pouring more petrol over them is of a magnitude that is qualitatively different from standing by and blocking the exit. Although the applicant was not passive and played an active role and was complicit in the offending, it was a different and lesser role. It follows, in our view, that Newman’s ‘culpability and degree of responsibility’ for the offending were materially greater than the applicant’s.[18]
[18]Sentencing Act 1991 s 5(2)(d).
In our view, counsel for the applicant was correct to identify the difference in background as the most significant point of distinction between the two offenders. Whereas Newman had had a relatively stable upbringing, and a good work record in his 20s, the applicant’s background was one of extreme deprivation, as the judge described in his reasons:
Your personal history is one of profound deprivation, enlivening the sentencing principles discussed by the High Court of Australia in Bugmy v The Queen. The deprivation you experienced from birth explains to a large extent why you have a longstanding drug problem.
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.
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.’
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.
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’.
When you were 12, your mother died in a car accident.
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.
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.
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.’
After finishing school, you continued living with the Smiths, completed an apprenticeship in upholstery and worked in the Smith’s roofing business.
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.
Despite the Smiths’ 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.
Your counsel told me you were using ice heavily at the time of the current offence.[19]
At the conclusion of the sentencing reasons, his Honour said that the sentence he was about to impose on the applicant would be ‘lower because of the profound deprivation [he] suffered as a child and adolescent’.[20] As noted earlier, the applicant’s contention in this Court was that — if proper weight had been given to the effects of his childhood deprivation — there had to be a much greater differential than one year between his sentence and Newman’s.
[19]Reasons [50]–[62] (citations omitted).
[20]Ibid [90].
Consideration
As this Court noted recently in Director of Public Prosecutions v Herrmann (‘Herrmann’),[21] the High Court in Bugmy v The Queen (‘Bugmy’)[22] expressed in two different ways the potential relevance of childhood deprivation to the assessment of moral culpability. The first — more general — expression was as follows:
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[23]
[21][2021] VSCA 160.
[22](2013) 249 CLR 571; [2013] HCA 37.
[23]Herrmann [2021] VSCA 160, [36] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
The second — more specific — expression was in these terms:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[24]
[24]Ibid [37].
Importantly, the High Court also said:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.[25]
[25]Ibid [38].
In answer to questions from the Court, counsel for the present applicant made clear that he did not rely on the specific approach described in Bugmy. This was not said to be a case where childhood exposure to extreme violence could ‘explain the offender’s recourse to violence when frustrated’. Rather, the submission was that, in the more general sense described by the High Court, the applicant should be viewed as less morally culpable for this offending than a person ‘whose formative years have not been marred in that way’.
Counsel drew attention to particular statements in reports provided on the plea. A Juvenile Justice report of November 2000, when the applicant was 17, described his long history of moving from placement to placement and from school to school, following his initial removal into the care of Protective Services at the age of three months as the result of ‘identified protection needs’. This ‘significant degree of mobility [precluded] establishment of stability and continuity in his education’.
The report concluded with this assessment:
Peter has encountered a traumatic and tragic series of events throughout his childhood and early adolescence which have had a significant impact on his adolescent development. It is the writer’s belief that although clearly warranted, the extensive involvement of protective services, incorporating a multiplicity of care arrangements, has unfortunately added to the absence of stability and creation of sustained positive and interpersonal relationships. Prior to his community placement Peter appears to have been lonely and somewhat aimless in addition to being confronted with ongoing changes in terms of staffing within the residential unit and coping with disappointment when a ‘promise’ for long-term placement with a residential care did not eventuate.
Instability, experiences of rejection, anxiety, confusion, loss/grief, and continued changes and protection needs feature throughout Peter’s childhood and adolescence, such primarily being the result of external factors rather than originating from Peter’s actions or behaviour.
A 2014 report from the applicant’s treating clinical psychologist described him as having presented
with a long history of depression and generalised anxiety. He has also struggled with low self-esteem and feelings of abandonment and this has negatively affected his capacity to form lasting intimate relationships.
And further:
His reckless behaviour and drug use appears to have worsened in recent years after he experienced rejection and job loss from family members on his father’s side. He reports that over the last 11 years drugs have given him some degree of emotional relief from distressing childhood memories, feelings of abandonment and never feeling good enough as a person.
As the judge noted, the applicant was fortunate to have the stability of a supportive foster family from the age of 16 and, in that setting, managed to finish Year 12. But, as defence counsel submitted on the plea, the damage had been done much earlier, given the simply appalling circumstances of the applicant’s birth and early years. He was, as counsel submitted in this Court, ‘a damaged person’, whose deep-seated distress could be seen to be explanatory of his drug use and of the chaotic life he was leading at the time of this offending.[26]
[26]Ibid [75].
That context sheds relevant light on the applicant’s decision-making on this occasion, as explained by the Court in Herrmann:
It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender’s formative years. As the present case graphically illustrates, childhood trauma can permanently damage — and seriously distort — a person’s view of the world around them and their understanding of social norms. Thus, in Freeburn v The Queen [No 2], it was accepted that the offender’s ‘background, of deprivation and abuse, played a material role in shaping his responses, and thus in his offending’. In Snow, the Court drew attention to ‘the impact on the decision-making of individuals of growing up, and living, in circumstances of prolonged and widespread social disadvantage’.[27]
[27]Ibid [46] (citations omitted).
In our view, the applicant’s parity complaint should be upheld. For the reasons we have given, the severe deprivation he experienced up to the age of 15 was relevant to an evaluation of his moral culpability, which could not be equated with that of a person who committed the same offence but had had the advantage of
a stable and loving home environment during his formative years.[28]
[28]DPP v Drake [2019] VSCA 293, [32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).
No such considerations applied to the sentencing of Newman. Further, as already pointed out, Newman’s lead role in the offending meant that there was a material difference between the two as to ‘culpability and degree of responsibility’.
With great respect to the sentencing judge, we do not consider that a difference of only one year between the applicant and Newman sufficiently reflected the stark difference in their personal circumstances or what his Honour accepted was the difference in their roles. A significantly greater sentencing differential was required.
For these reasons, we would grant leave to appeal, allow the appeal and resentence the applicant to 11 years’ imprisonment, with a non-parole period of 7 and a half years.
McLEISH JA:
I have had the benefit of reading in draft the reasons for judgment of Maxwell P and Sifris JA. I agree, for the reasons given by them, that leave to appeal in respect of proposed grounds 1 and 3 should be refused. I also gratefully adopt their enunciation of the legal principles applicable to proposed ground 2 (the parity ground). However, I have the misfortune to disagree as to the application of those principles to the facts of this case.
As counsel for the applicant submitted, the parity ground depended on two sentencing considerations, namely the applicant’s role in the offending and his background of deprivation. It is convenient to consider each in turn.
The sentencing judge stated that, while Newman played ‘the lead role’ in the
offending, the applicant was ‘anything but passive’ and that this meant that the fact that he played a lesser role was ‘of limited significance’.[29]
[29]R v Gencev [2019] VCC 502, [9] (‘Sentencing Remarks’).
In my opinion, that conclusion was correct. It is true that Newman was the party with the personal dispute with the victim (‘M’), and that Newman sent various text messages before the offending, warning others to vacate the premises. Newman also carried the petrol container, threw the fuel over M and set it alight. However, the applicant accompanied Newman in these latter actions and took active steps to try to ensure that they had the maximum physical impact on M. The following extracts from the prosecution summary of opening, which the parties accepted for the purpose of the plea hearing, reveals the two offenders acting very much with a common purpose throughout:
At around 11.55am, Gencev, Newman and a third unidentified male returned to the warehouse. [What this unidentified male did, or where he went, after arriving at the warehouse is unknown.]
They forced open a window and [gained] entry. They immediately went to [M’s] bedroom where he was lying in bed on his stomach, asleep.
Newman was holding … a petrol container. He opened the bedroom door, walked up to [M], stood over him and poured accelerant on him whilst Gencev stood blocking the doorway. As a result of being doused in liquid, [M] immediately woke up. He … heard Gencev say ‘Do you think that woke him up?’
…
Newman threw something at [M] in order to ignite the accelerant. [M’s] body was immediately engulfed in flames. … Newman threw more accelerant at [M]. Gencev and Newman closed the sliding door and walked away.
…
[M’s] entire body was on fire. He … managed to force the door open, at which point he was immediately confronted by Gencev and Newman, who were both armed with metal poles. Both [offenders] struck [M] with full force using the poles to his head and legs. He was still on fire.
[M] thought he was going to die. He tried to hug Newman. …
[M] slid down Newman’s arm and was hit on his other side by Gencev. He was still on fire and tried to defend himself. Gencev and Newman continued to hit him. He fell to the ground onto his back He said to Newman ‘Peter you’re gunna kill me, I’m gunna die, stop!’
[M] directed his plea to Newman as he had more of a bond with him. Newman did not reply. Gencev and Newman continued to hit [M] with the metal bars.
Unable to stop both [offenders] from hitting him, [M] decided to lay still and pretend he was dead. This did not stop either [offender] and they continued to hit him. He then decided to try and escape. He got to his feet and was knocked down a few times. He managed to get to his feet again and went to the side entrance door. He leant down to move a plank of wood which was in place to stop the door opening. … Whilst he did that, Gencev struck him to the back of the head with the metal bar. [M] used the wood to try and hit Gencev however he missed and hit the wall. Gencev tried to hit him again but missed and hit the brick wall causing him to drop the bar.
[M] opened the door and fled out onto the street. …[30]
[30]Ibid [2].
In my opinion, these events show the applicant to have been an enthusiastic participant in the actions of Newman from beginning to end. The applicant accompanied Newman throughout the offending and was fully complicit in his actions. The two men went to the factory together and acted as a team. The applicant may not have instigated the attack, nor did he personally douse M in accelerant and set it alight. However, he went to M’s room with Newman holding the petrol container, blocked the doorway while Newman doused M with accelerant, showed his endorsement of that conduct by joking about it, and then stood by while Newman set the accelerant alight. The applicant then tried to prevent M’s escape from the burning room, and repeatedly inflicted gross violence upon the burning man when he tried to save himself from his assailants. M did not escape until the applicant dropped his metal bar.
In these circumstances, I agree with the sentencing judge that the fact that Newman had a ‘lead role’ in the offending is of limited significance.
The second sentencing consideration upon which the parity argument depended was the deprived background suffered by the applicant. The sentencing judge correctly identified this as the main point of difference between the two offenders, as Maxwell P and Sifris JA have described.
It is well established that a history of childhood deprivation, involving drug or alcohol abuse and violence, may be relevant to assessing an offender’s moral culpability in two ways.[31] In a general sense, a person’s moral culpability may be reduced as a result of such an upbringing, compared to that of a person who grew up in less unfortunate circumstances. More particularly, the experience of such an upbringing may explain an offender’s inability to control his or her impulses to violent behaviour in the face of frustration or provocation. The latter aspect involves the identification of a ‘nexus’ or ‘realistic connection’ between the offending and the relevant background circumstances.[32]
[31]Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann [2021] VSCA 160 (‘Herrmann’).
[32]Herrmann [2021] VSCA 160, [44]–[45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
Counsel for the applicant made it clear that this case involves only the former, more general effect. That concession was properly made, in circumstances where it could not be said that the violence perpetrated by the applicant was in any way impulsive. As counsel for the respondent submitted, this offending was planned and purposeful. No nexus or realistic connection between the offending and the applicant’s background was identified.
Turning to the more general effect of deprivation in the present case, in my view it is important to bear in mind that, despite the appalling start to life suffered by the applicant, he made good progress in turning his life around once he went to live with the Smith family in 1999 when aged about 16. This led him to successfully complete year 12 and then to work for some years in the family business, as well as completing an apprenticeship in another field. Sadly, the applicant stopped working in about 2013 and around that time became a heavy drug user. It was not until then that he started to accumulate a criminal record going beyond driving-related offences. The sentencing judge accepted that the applicant’s drug use stemmed in large part from his traumatic childhood and early adolescence.[33] In that context, it may be noted that the applicant’s childhood was marked by an environment of endemic drug use but less so by violence, and he had no prior convictions for violence.
[33]Sentencing Remarks [50], [72].
It is true, as emphasised by the High Court in Bugmy v The Queen[34] and by this Court in Marrah v The Queen,[35] that the effects of profound childhood deprivation do not diminish with the passage of time. As such, a person with a background of that kind will be less morally culpable for criminal conduct than a person who did not have such a background.
[34](2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[35][2014] VSCA 119, [16] (Redlich and Tate JJA); see also Herrmann [2021] VSCA 160, [39] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
However, while profound childhood deprivation must be given ‘full weight’ in sentencing, that does not mean that it must be given the same weight in every case.[36] Where (as here) an offender has, despite a profoundly deprived childhood, enjoyed a period of stability in adolescence, successfully finished secondary school and obtained sustained employment, that person may be more morally culpable for their actions than a person with a similarly deprived childhood who has never at all had the advantages of a stable home environment and steady employment.
[36]See McGuiness v The Queen [2021] NSWCCA 80, [61] (Wright J, Hoeben CJ at CL agreeing at [1], Bellew J agreeing at [2]); Dungay v The Queen [2020] NSWCCA 209, [139], [153] (N Adams J, Bell P agreeing at [1], Davies J agreeing at [2]).
I accept, as the joint judgment puts it, that the severe deprivation the applicant experienced in his childhood meant that his moral culpability could not be equated with that of a person who committed the same offence but had the advantage of a stable and loving home environment during his formative years. Since Newman had a stable home environment (despite his father having been a violent disciplinarian), this consideration demanded that the applicant receive a lesser sentence than Newman (other considerations, apart from the issue of ‘role’, being more or less equal).
However, there remains a question of degree as to how far an offender’s deprived background serves to diminish his or her moral culpability. Because the applicant’s upbringing did not explain his resort to violence in this case, and because the applicant had for some years lived in circumstances that enabled him to lead a law-abiding life despite his earlier deprivation, in my view it was reasonably open to the sentencing judge to settle upon a moderate, rather than significant, degree of mitigation on account of his deprived childhood.
It would have been open to the judge to provide for a greater differential between the sentences. However, in my opinion it has not been shown that the differential of one year, or the sentence imposed on the applicant, was not reasonably open.
I would grant leave to appeal on proposed ground 2, but would dismiss the appeal.
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