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DPP v Rivette

DPP v Rivette

Case [2017] VSCA 150 22 June 2017

Sentencing

Appeal

Manifestly Inadequate Sentence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0147

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
CLINT RIVETTE	Respondent

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JUDGES:	ASHLEY and PRIEST JJA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 May 2017
DATE OF JUDGMENT:	22 June 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 150
JUDGMENT APPEALED FROM:	DPP v Rivette (Unreported, County Court of Victoria, Judge Parsons, 6 July 2016)

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CRIMINAL LAW – Sentence – Crown appeal – One charge of burglary, two charges of theft and one charge of reckless conduct endangering life and two related summary offences – Offending included, inter alia, driving stolen vehicle at speed with victim on bonnet – Aggregate sentence imposed of 715 days’ imprisonment and 2-year community correction order – 581 days of pre-sentence detention not declared – Whether sentence manifestly inadequate – Whether sentencing judge erred in failing to impose a head sentence with a non-parole period and in failing to declare pre-sentence detention – Whether sentencing judge erred in imposing an aggregate sentence – Appeal allowed – Respondent re-sentenced to total effective sentence of five years and nine months’ imprisonment with non-parole period of four years.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C Boyce SC	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Ms A J Beech	Stary Norton Halphen

ASHLEY JA:
PRIEST JA:

The respondent, Clint Rivette, pleaded guilty in the County Court on 15 April 2016 to four indictable offences, being one charge of burglary, two charges of theft, and one charge of reckless conduct endangering life. Two related summary offences — one charge of unlicensed driving and one charge of possessing a controlled weapon — were also determined in the same proceeding.

Following a plea hearing, the respondent was sentenced on 6 July 2016 as follows:[1]
[1]The Record of Orders for the County Court proceeding does not record the sentences imposed for the summary charges, although they were referred to by the sentencing judge in his sentencing remarks. Neither party contends that the aggregate sentence imposed did not include the summary offences.

Charge on Indictment Offence Maximum Sentence Cumulation

1 Burglary
[Crimes act 1958 s 76] 10 y
Aggregate sentence of 715 days’ imprisonment and 2-year community correction order (‘CCO’)
N/A

2 Theft
[Crimes Act 1958 s 74] 10 y N/A

3 Theft (as above) 10 y N/A

4 Reckless conduct endangering life
[Crimes Act 1958 s 22] 10 y N/A

Summary charge 6 Unlicensed driving
[Road Safety Act 1986 s 18] 25 pu / 3 m N/A

Summary charge 8 Possess controlled weapon [Control of Weapons Act 1990 s 6] 120 pu / 1 y N/A

Total Effective Sentence: 715 days’ imprisonment and 2-year CCO

Non-Parole Period: N/A

Pre-sentence Detention Declared:
Nil. Order that 581 days spent in custody not to be reckoned as a period of pre-sentence detention under this sentence.

6AAA Statement: 7 y imprisonment with non-parole period of 4 y 6 m

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 DPP v Rivette

Details

AGLC: DPP v Rivette [2017] VSCA 150
Case: [2017] VSCA 150
Decision Date: 22 June 2017

CaseChat Overview and Summary

The matter of the Director of Public Prosecutions v Rivette was heard in the High Court of Australia. The respondent, Rivette, had been convicted on one charge of burglary, two charges of theft, and one charge of reckless conduct endangering life, as well as two related summary offences. The nature of the dispute was the appropriateness of the sentence imposed on the respondent, with the Director of Public Prosecutions appealing the sentence as manifestly inadequate.

The central legal issues revolved around whether the sentencing judge had erred in several respects. Specifically, the court had to determine whether the judge erred in failing to impose a head sentence with a non-parole period, in failing to declare the respondent's pre-sentence detention, and in imposing an aggregate sentence. The appeal further contended that the sentence was manifestly inadequate considering the gravity of the offences committed by the respondent.

The High Court found that the sentencing judge had indeed erred in several respects. The court held that the failure to impose a head sentence with a non-parole period and to declare the respondent's pre-sentence detention were significant errors. Additionally, the aggregate sentence imposed was deemed manifestly inadequate given the seriousness of the offences, particularly the reckless driving with a victim on the bonnet of the stolen vehicle. Consequently, the appeal was allowed, and the respondent was re-sentenced to a total effective sentence of five years and nine months’ imprisonment, with a non-parole period of four years.

Orders