R v Liszczak and Phillips - [2017] VSC 103

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2016 0080, S CR 2016 0081, S CR 2016 0204,
S CR 2016 0205, S CR 2016 0206 & S CR 2016 0207

Between:

THE QUEEN
and
SAM LISZCZAK & RODNEY PHILLIPS	Accused

---

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2017
DATE OF SENTENCE:	14 March 2017
CASE MAY BE CITED AS:	R v Liszczak & Phillips
MEDIUM NEUTRAL CITATION:	[2017] VSC 103	First revision (16 March 2017): paras [14], [79], [95], [150] & [166]

---

CRIMINAL LAW – Sentence – Two co-accused charged with same offences – Attempted arson (two charges) by throwing Molotov cocktails at separate premises – Theft of motor car – Prohibited person possess firearm – Criminal damage by shooting fence – Recklessly causing injury by shooting police officer in head – Reckless conduct endangering another police officer by same shot – Arson of stolen motor car – Accused threw Molotov cocktails at two premises mistakenly believing homes belonged to others – Two days later, accused returned to first of target addresses in stolen car and fired gun twice at fence – As accused moved to second target address, police detected, pursued and cornered them – As they fled, accused fired gun at police car at close range, causing pellets to strike driver to head and to endanger passenger – Several pellets remain lodged under policeman’s skin – Accused dumped and burnt stolen car – Unknown which of accused fired gun or drove car – Joint criminal enterprise – Accused just released from long prison sentences – Extensive criminal histories – Pleas of guilty – Relative youth – Only guarded prospects of rehabilitation – Risk of institutionalization – Importance of general deterrence, specific deterrence, denunciation, just punishment, protection of community and rehabilitation – Absent pleas of guilty and other mitigating factors, offences involving shooting at police would attract maximum penalties – Sentenced as serious arson offenders on some counts – Parity – Totality – On one accused, total effective sentence of eight years’ imprisonment with non-parole period of six years and two months – But for pleas of guilty and other mitigating factors, total effective sentence of ten years’ imprisonment with non-parole period of eight years and two months – On other accused, total effective sentence of seven years and ten months’ imprisonment with non-parole period of six years – But for pleas of guilty, total effective sentence of nine years and ten months’ imprisonment with non-parole period of eight years – Sentencing Act 1991 (Vic), ss 5, 6AAA, 6A-6F & 18.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Rose QC with Mr N. Hutton	John Cain, Solicitor for Public Prosecutions
For Ms Liszczak	Mr D. Hallowes QC with Ms K. McKay	Vale Criminal Law
For Mr Phillips	Mr S. Bayles	Pica Criminal Lawyers

HIS HONOUR:

Overview

Within days of being released from long stints in prison, Sam Liszczak and Rodney Phillips set upon a…

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.

Keep reading for free

Create a free CaseChat account to read R v Liszczak and Phillips and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSC 103
Decision Date: 14 March 2017

CaseChat Overview and Summary

The case of R v Liszczak and Phillips involved two co-accused facing multiple charges including attempted arson, theft of a motor vehicle, firearm possession by a prohibited person, and various counts of reckless endangerment and causing injury. The accused, Liszczak and Phillips, threw Molotov cocktails at two separate premises, mistakenly believing they were targeting the homes of others. Subsequently, they stole a car, shot at a fence, and fired at police officers, causing injury to one officer and endangering another. The court was tasked with sentencing these individuals who had recently been released from lengthy prison sentences, extensive criminal histories, and who had pleaded guilty to the charges.

The court had to determine appropriate sentences that balanced the need for general and specific deterrence, denunciation, just punishment, protection of the community, and the prospects of rehabilitation. Given the severity of the crimes, particularly the shooting at police, the court considered that without the mitigating factors such as the pleas of guilty and the youth of the offenders, the maximum penalties would have applied. The court also had to consider the principle of parity in sentencing, ensuring that both co-accused received sentences reflective of their respective roles and contributions to the crimes. In the end, the court imposed an effective sentence of eight years with a non-parole period of six years and two months on one accused, and seven years and ten months with a non-parole period of six years on the other.

The reasoning of the court was grounded in the mitigating factors such as the pleas of guilty and the relatively young age of the offenders, which presented some prospects for rehabilitation. However, these were weighed against the high risk of institutionalisation and the severe nature of the crimes committed. The court also emphasised the importance of ensuring that the sentences were sufficiently severe to serve as a deterrent, both generally and specifically to the offenders, while also providing protection to the community. The court's final orders reflected these considerations, resulting in the sentences detailed above, which the court deemed appropriate given the totality of the circumstances.

Orders