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Gencev v The Queen

Gencev v The Queen

Case [2021] VSCA 188 29 June 2021

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gencev v The Queen

Details

AGLC: Gencev v The Queen [2021] VSCA 188
Case: [2021] VSCA 188
Decision Date: 29 June 2021

CaseChat Overview and Summary

The appellant, Gencev, appealed against his sentence of 13 years’ imprisonment, with 10 years non-parole, for the offence of intentionally causing serious injury in circumstances of gross violence. The matter was heard in the High Court of Australia, which granted leave to appeal and allowed the appeal, subsequently re-sentencing the appellant. The central issue for the court was whether the primary judge had erred in assessing the seriousness of the offence, particularly in relation to the disparity between the sentences of the appellant and his co-offender. The court had to consider whether the primary judge had given insufficient weight to the appellant’s disadvantaged background and his lesser role in the offending.

The court found that the primary judge had made an error in assessing the seriousness of the offence, leading to an insufficient differential between the sentences of the appellant and his co-offender. It was held that the primary judge had not adequately taken into account the appellant’s profound childhood deprivation and reduced moral culpability, which were significant mitigating factors. The court held that a greater differential was warranted given the disparity in the roles and backgrounds of the co-offenders. The appeal was allowed, and the appellant was re-sentenced to a total effective sentence of 11 years’ imprisonment, with a non-parole period of 7 years and 6 months. The court's decision was influenced by the principles in R v Kilic, Bugmy v The Queen, and DPP v Herrmann.

In light of the above, the High Court concluded that the original sentence was manifestly inadequate in reflecting the appellant’s lesser role and mitigating circumstances. The final orders of the court were that the appeal was allowed, the original sentence was quashed, and the appellant was re-sentenced to the new terms as outlined. This decision underscores the importance of considering individual circumstances and the role of each offender in the commission of the crime when assessing the seriousness of the offence and determining an appropriate sentence.

Orders