JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2019
DATE OF SENTENCE:	26 July 2019
CASE MAY BE CITED AS:	R v Gencev & Newman
MEDIUM NEUTRAL CITATION:	[2019] VSC 502

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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) 40 VR 134 – R v Kilic (2016) 259 CLR 256.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S Coombes	Office of Public Prosecutions
For the Accused Gencev	Mr D Gibson	Victoria Legal Aid
For the Accused Newman	Mr B Johnston	Emma Turnbull Lawyers

HIS HONOUR:

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.
[1] Section 15A of the Crimes Act 1958.

Circumstances of offending

Through your counsel, both of you accepted completely the prosecution summary of facts. It stated, relevantly:

3.Gencev, Newman and Riley were all known to each other through the homeless community. They were all drug users…
4.The three men lived together for various periods in a squat at an abandoned warehouse at 54 to 56 Clarke Street, Southbank. Riley had been living at the property for approximately six months, Newman for approximately three months and Gencev for approximately one month.
…
8.Jordan Christopher [was] a mutual friend of all three men, having previously lived with them at the warehouse. At the time of the … offence, he was living elsewhere.
9.There were a number of other squatters living at the premises at the time …
10.In the period leading up to the …offence, there had been some issues (referred to by [Riley] as “internal affairs”) between[Riley], Gencev and Newman. Two of the other squatters, Mick and Chrissy, had been stealing from the warehouse and using heroin. Due to this, [Riley] had evicted them. They would ignore him and return to the premises. Gencev and Newman would let them back in and this caused tension between them and [Riley].
11.During the evening of Thursday 29 June 2017, [Riley] was at the warehouse.
…
13.At about 10pm, Christopher met up with Gencev and Newman … [and] they … went to…

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 R v Gencev and Newman

Details

AGLC: R v Gencev and Newman [2019] VSC 502
Case: [2019] VSC 502
Decision Date: 26 July 2019

CaseChat Overview and Summary

In R v Gencev and Newman, the Court was called upon to sentence two defendants who had pleaded guilty to intentionally causing serious injury to a victim under circumstances of gross violence. The victim was doused in petrol and set on fire, and when he attempted to escape, the defendants struck him with metal bars. The attack was premeditated, and the victim would have died but for medical intervention. The defendants, Gencev and Newman, were found to have intended to cause really serious injury, leading to devastating injuries for the victim. The court was required to determine an appropriate sentence considering the nature of the offence and the circumstances surrounding it.

The legal issues before the court involved assessing the appropriate sentence for the defendants, taking into account the principles set out in relevant case law. The court needed to consider the severity of the offending, the level of premeditation, and the level of remorse shown by the defendants. In addition, the court had to weigh the personal circumstances of the defendants, including the impact of childhood experiences on their offending behaviour. The court referred to the statutory framework provided by the Crimes Act 1958, as well as the precedents established in Bugmy v The Queen, Nash v The Queen, and R v Kilic.

The court determined that the offending was of an upper range example of the offence, given the premeditation and the gross violence involved. Both defendants had shown some remorse, but the court found that Gencev played a more active role in the attack than Newman. The court also considered Newman's childhood, which was blighted by profound deprivation, and this was taken into account when determining the sentence. The court ultimately sentenced Gencev and Newman to lengthy prison terms, reflecting the seriousness of the offending and the need for deterrence and rehabilitation.

The court ordered that Gencev and Newman be imprisoned for a term of 20 years, with a non-parole period of 15 years for Gencev, and 18 years, with a non-parole period of 13 years for Newman. This reflects the severity of the offending, the need for punishment and deterrence, and the personal circumstances of the defendants. The sentences also provide an opportunity for rehabilitation and address the need to protect the community from future offending.

Orders