R v Gencev and Newman
[2019] VSC 502
•26 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0108
S CR 2016 0109
| THE QUEEN |
| v |
| PETER GENCEV |
| PETER NEWMAN |
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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 the warehouse.
14…. When they arrived, Newman told Riley that he had gone out to Broadmeadows to drop drugs off to Riley’s ex-girlfriend Brooke. Riley became angry at Newman. He had only recently broken up with Brooke …
15.Riley asked Gencev if he knew about this. Gencev said that he was aware, and that he and Newman were very close in comparison to the relationship they (Riley and Gencev) had. [Riley] then lost his temper. He picked up a metal bar and told Gencev and Newman to leave.
16.[Riley] told Gencev to take off one of his shoes, in order to embarrass him. After Gencev removed his shoe, [Riley] threw it into the rubbish pile in the warehouse in front him, before forcing him out. He left through the side entrance door.
17.After Gencev had left, [Riley] spoke to Newman about what he was doing seeing his ex-girlfriend Brooke. Newman began to speak and Riley observed that he was drunk. He had a very strong smell of Bourbon on his breath. Riley then told Newman to leave the warehouse. He followed Newman with the metal bar until he left via the side entrance door.
18.[Riley] went into his bedroom. He was angry and decided to evict all of the other squatters from the building. By this time, it was about 1am on 30 June 2017. He walked to the other side of the building and told four other squatters … to leave. He said to them “ … don’t pack, just get the fuck up and go.” He had an altercation with them and they then left the warehouse.
19.Gencev and Newman left. Christopher stayed at the warehouse.
20.Riley and Christopher spoke, and did some cleaning up in the building for a few hours. Christopher tried to persuade [Riley] to stay at a hotel that night as he had concerns for Riley’s safety due to what had occurred earlier.
21.[Riley] and Christopher then talked in Riley’s bedroom.
22.After a while, [Riley] lay down on his bed on his stomach. He then fell asleep …
23.[Riley’s] bedroom [was] a small room in the warehouse with a single bed. The entrance to the bedroom was via a very solid sliding door. It was an old archives vault door encased in metal.
24.At some point during the night, two of the squatters, “Bald Mick” and Hope, returned to the warehouse. They went to sleep in the adjoining warehouse at 54 Clarke Street.
25.At 5:31am, Newman sent a text message from his mobile telephone … to [Gencev’s partner] Didi stating:
Hey D don’t go factory pls there was drama I’ll see you soon with Peter.
26.At 5:33am, Christopher received a text message from Newman stating:
Get nick [sic] and hope out of the factory pls and then leave also. Let me know when done.
27.Christopher spent some time trying to wake Riley as he was concerned that [Riley’s] safety might be at risk due to the text message from Newman.
28.At 5:38am Newman sent a text message to a person listed in his mobile phone as “New Mick Bold” stating:
Hey get hope and Jordy out of there and let me know as soon as done
29.Christopher’s attempts at waking [Riley] up were unsuccessful, so he went into the other side of the factory and suggested to Hope and Mick that they meet for breakfast at Andrews’ Cafe. As a result, Hope and Mick left about ten minutes later. Christopher went back to [Riley’s] bedroom and made further attempts at waking him up but was unable to.
30.Fearing for [Riley’s] safety, Christopher tried to fortify the warehouse by cutting the power and reinforcing a number of doors to prevent persons from entering. He then went to the café.
31.At 9:21am, Newman sent a text message to a person listed in his mobile phone as “Trix” stating:
Going to break someone’s legs.
32.After leaving the warehouse, Christopher met with Hope and Mick at the café. Gencev and Newman were also at the café. Newman was driving [his] white Toyota Camry. The group had breakfast together. Gencev and Newman told him that they were going to go back to the warehouse and would be dropping Hope off along the way.
33.At about 11:55am, Gencev, Newman and a third unidentified male[2] returned to the warehouse …
[2]What this unidentified male did, or where he went, after arriving at the warehouse is unknown.
34.They forced open a window and used two orange coloured milk crates to gain entry. They immediately went to [Riley’s] bedroom where he was lying in bed on his stomach, asleep.
35.Newman was holding … a petrol container. He opened the bedroom door, walked up to [Riley], stood over him and poured accelerant on him whilst Gencev stood blocking the doorway. As a result of being doused in liquid, [Riley] immediately woke up. He thought he had wet himself and heard Gencev say:
Do you think that woke him up?
36.[Riley] immediately smelt fuel. The wet sensation was on the inside of his thighs and he realised that he had not wet himself. He rolled over and heard Newman say:
Who lives here now motherfucker?
37.Newman threw something at [Riley] in order to ignite the accelerant. [Riley’s] body was immediately engulfed in flames. [Riley] saw Newman leaning into the room with the top half of his body. Newman threw more accelerant at [Riley]. Gencev and Newman closed the sliding door and walked away.
38.[Riley] managed to stand up and went to open the sliding door. As he tried to open the door there was a spongy resistance…[Riley later] observed that:
‘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.’
39.[Riley’s] entire body was on fire. He was in fear for his life and filled with adrenalin. 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 [Riley] with full force using the poles to his head and legs. He was still on fire.
40.[Riley] thought that he was going to die. He tried to hug Newman. He [later] stated that:
… 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.
41.[Riley] 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!
42.[Riley] directed his plea to Newman as he had more of a bond with him. Newman did not reply. Gencev and Newman continued to hit [Riley] with the metal bars.
43.Unable to stop both [offenders] from hitting him, [Riley] 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. He leant down and moved the wood. Whilst he did that, Gencev struck him to the back of the head with the metal bar. [Riley] 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.
44.[Riley] opened the door and fled out onto the street. He looked over his shoulder and saw Gencev and Newman running back inside the building to the archway that leads to the other half of the building. Gencev picked up his metal bar before he ran.[3]
[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.
45.At about 12:10pm, a tradesman who [was] driving his car nearby, Micah Pleasance, saw [Riley] walking west in the middle of Hancock Street. He was bleeding profusely and his skin was hanging off his body, his clothing burnt and ripped. Pleasance stopped and assisted [Riley]. Staff members at the Budget Car Rentals nearby saw what was happening and called 000. Pleasance also called 000.
…
47.Police, ambulance and fire services attended the scene.
48.Firefighters extinguished the fire in [Riley’s] bedroom and small fires that had occurred outside the room. The bedroom had been extensively damaged.
…
51.Gencev and Newman were located on the roof and taken down by firefighters. They were then arrested by police.
…
55.[Riley] was taken to The Alfred Hospital in a critical condition. He was found to have suffered the following injuries:
•burns to 42 to 50% of his body, predominantly to the torso, upper and lower limbs;[4]
[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.
•burns to his airway;
•fluid collection and accumulation in the space between the two membranes covering the lungs;
•lung tissue collapse;
•chest infection;
•multiple scalp lacerations;
•bilateral scalp haematomas;
•a laceration to his left leg;
•a laceration to his right hand with extensor tendon laceration; and
•a fracture to his left forearm.
56.[Riley] underwent surgery to repair his injuries. He underwent five separate surgeries to repair the burns using wound cleaning (debridement) and split skin grafts.
…
58.[Riley] was discharged from hospital on the 8th of August 2017 and had to wear pressure garments on his burns and take medication for the pain to his body.
59.Dr Jason Schreiber, Forensic Clinician at the Victorian Institute of Forensic Medicine, expressed the following opinion in relation to [Riley’s] injuries:
• There is evidence of thermal injury and blunt trauma to the head, torso and limbs, that is, a combination of injuries with accumulative effect.
…
• Injuries involving areas over 40% total body surface are likely to be fatal without hospital treatment.
• Airways were compromised by burn injuries resulting in breathing problems, that is, a body function essential to life.
…
• Bone fracture to the hand, that is, a body part essential for work and social life occurred, that is, substantial injury. Similarly, it is not possible to quantify the amount of force required to produce these injuries.
• In an otherwise healthy person of this age, substantial impact by fire and moderate to severe blunt force would be required to produce these injuries.
• The entity [sic] of injuries was severe.
• There is no doubt that without treatments in hospital the subject would be dead.
• He will have scars in future.
• Deterioration of his mental health state is likely due to the injuries.
• He will have low quality of life due to the injuries.
…
80.After his arrest at the scene, Newman was taken by police to The Alfred Hospital to receive treatment … Upon examination he was found to have burns to his right hand, wrist and finger web. He also had a burn to his right ankle.
81.Newman was later taken to Melbourne West Police Station, where he essentially gave a no comment interview.
82.Gencev was taken to Melbourne West Police Station where he was interviewed. When interviewed, he admitted to being inside the warehouse at the time of the … offence. He denied involvement and stated that was he asleep on the couch and woke up to observe that the victim was on fire.
83.Gencev and Newman were charged and remanded in custody.
I wish to highlight a number of points from that agreed summary of facts.[5]
[5]In Nash v The Queen (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);
·how vulnerable the victim was;
·whether a weapon was used;
·how long the attack on the victim lasted; and
·whether the offender acted alone or in company.
Your offence was premeditated. Several hours beforehand, you warned off others, indicating you were going to harm Riley.
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.
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]
[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.
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.
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.
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.
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.
Victim impact
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.”
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.
He continues to have nightmares and flashbacks about his ordeal.
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.”
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.
Objective seriousness of offending
In R v Kilic,[7] the High Court said a sentencer is “bound” to consider where an offence falls on the spectrum of seriousness for that offence.[8]
[7](2016) 259 CLR 256.
[8]Ibid at [19].
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]
[9]Transcript of proceedings, The Queen v Peter Gencev & Peter Newman, S CR 2018 0108; S CR 2018 0109, 22 May 2019), 48.
Timing of pleas of guilty
The timing of a plea of guilty is relevant to the extent of the discount to be given for pleading guilty.
Your counsel, Newman, submitted that your plea of guilty was entered at the first reasonable opportunity.[10] Your counsel, Gencev, did not go so far but contended in written submission that yours was an early plea.[11]
[10]Ibid, 61.
[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.
It is necessary to give a brief chronology to assess these submissions.
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.
A charge of attempted murder was added before the committal.
Prior to the contested committal hearing you both offered to plead guilty to intentionally causing serious injury simpliciter. That offer was rejected.
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.
At the post committal directions hearing on 30 April 2018, the trial was listed to commence on 4 February 2019.
Both of you were indicted on charges of attempted murder and intentionally causing serious injury in circumstances of gross violence.[12]
[12]Indictment No C1711134.
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.
You, Gencev, offered to plead guilty to the current offence on 22 January 2019 and that offer was accepted on 23 January 2019.[13]
[13]Transcript of proceedings, The Queen v Peter Gencev & Peter Newman, S CR 2018 0108; S CR 2018 0109, 22 May 2019), 15.
As mentioned above, you both formally entered your plea of guilty on 4 February 2019.
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]
[14]Ibid, 46.
Both of your pleas will attract a significant discount for their utilitarian benefits and for the fact that, in my view, they reflect remorse.
Circumstances of offenders
Newman
Let me turn to your personal histories, beginning with you, Newman.
You are currently aged 35, your date of birth being 24 January 1984.
You were born in Australia to Polish parents.
When you were approximately five, your parents returned with you to Poland and you grew up there and eventually became a qualified pastry chef.
Your two brothers, who are considerably younger than you, were born in Poland.
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.
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.
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.
You have had two significant intimate relationships but you have never married and have no children.
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.
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.
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.
[15]Report of Clinical Psychologist Carla Lechner dated 15 April 2019.
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.
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.
Antecedents
You have a limited criminal history.
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.
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.
Gencev
Turning to your personal history, Mr Gencev, you are now 36 years of age, having been born on 10 June 1983.
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.
[16](2013) 249 CLR 571.
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 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.
Your counsel told me you were using ice heavily at the time of the current offence.
Antecedents
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.
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.
On a positive note, you do not have any prior convictions for offences involving violence.
Prospects of rehabilitation
Newman
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.
[17]Using the Third Edition of the Historical Clinical Risk Assessment Tool.
You have a limited criminal history with no priors for violent offending.
You had a good work history up until your descent into daily ice use.
You appear to have been a model prisoner since your remand.
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.
Carla Lechner’s report does not suggest that you suffer from a mental illness or a personality disorder which might impede your rehabilitation.
Gencev
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.”
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.
Comparable cases
I am obliged to have regard to current sentencing practices in working out an appropriate sentence for each of you.
Your counsel, Newman, relied on what he said were six comparable cases,[18] some of which were cases where the offender set the victim on fire.[19] All involved the offence of intentionally causing serious injury, save for R v Islam.[20]
[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.
Head sentences in those cases ranged from 8 to 14 years and non-parole periods ranged from 6 to 11 years.
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.
[21] R v Ravenhorst [2015] VSC 308 and DPP v Hudgson [2016] VSCA 25.
I have also had regard to the Table of Cases attached to Nash v The Queen, the summaries of numerous sentencing cases for intentionally causing serious injury on the website of the Judicial College of Victoria[22] and sentencing statistics compiled by the Sentencing Advisory Council.[23]
[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:
The case of Kilic featured in discussion at your plea hearing.
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.
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]
[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.
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.”
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.
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.
[25]Having done so, he didn’t speak to the operator but threw the phone to another person nearby.
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]
[26]R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [31] and [35].
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.
Purposes of sentencing
The offending by both of you was unbelievably cruel and the consequences immense for Riley.
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.
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.
The sentence I pass on you Gencev will be lower because of the profound deprivation you suffered as a child and adolescent.
Sentence
Mr Newman, please stand.
I sentence you to 14 years’ imprisonment
I set a non-parole period of 10 years.
But for your plea of guilty I would have sentenced you to 16 years with a minimum term of 12 years.
I declare you have served 636 days of your sentence by way of pre-sentence detention, not including today.
Mr Gencev, please stand.
I sentence you to 13 years’ imprisonment.
I set a non-parole period of 9 years.
But for your plea of guilty I would have sentenced you to 15 years with a non-parole period of 11 years.
I declare you have served 725 days of your sentence by way of pre-sentence detention, not including today.
Ancillary orders
By consent, I make the Disposal Order sought.
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)
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