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R v Chimirri

R v Chimirri

Case [2003] VSCA 45 16 April 2003

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 85 of 2003

THE QUEEN
	v.
TERRENCE CHIMIRRI

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JUDGES:	WINNEKE, P., PHILLIPS and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 April 2003
DATE OF JUDGMENT:	16 April 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 45

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Criminal law – Sentence - Kidnapping charge and bail therefor – Subsequent charge of attempted murder – Whether applicant’s time in custody doubly warranted – Sec.18 of Sentencing Act not applicable – Whether discretion in sentencing to be exercised in accordance with authorities of R. v. Renzella [1997] 2 V.R. 88 and R. v. Stares (2002) 4 V.R. 314.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.J. Ryan	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Balot Reilly

WINNEKE, P. (delivering the judgment of the Court):

This application comes before us in somewhat unusual circumstances. The applicant Chimirri was sentenced on 20 December 2001 on one count of kidnapping pursuant to s.63A of the Crimes Act, a crime which carries a maximum sentence of 25 years, and of which this particular crime was a serious example. The judge sentenced Chimirri to a period of four-and-a-half years and ordered that he serve a minimum period of two years. The applicant stood for sentence with two other offenders with whom he committed this crime in company, and the circumstances of it involved an assault upon a person with pistols, so that the person was subdued and bundled into a motor vehicle driven by another of the co-offenders and taken to a house with a view to holding him for ransom. Ultimately the ransom was paid and the victim was released.

The unusual circumstances in which this appeal arises are as follows. This offence occurred on 2 August 1999 and, on 3 August, Chimirri was arrested and placed in custody for the kidnapping. At that time he was on parole for an offence of manslaughter which had been committed in 1996 or thereabouts. Having been taken into custody for the kidnapping, he was bailed on 15 September 1999 and released into the community on that bail. On 24 May 2001 he was arrested again and taken back into custody on a charge of attempted murder. No application was made for revocation of his bail in respect of the kidnapping and he remained on bail for that crime. On 29 November 2001 he pleaded guilty to the kidnapping in the County Court, and on that day the bail on which he had previously been released for the kidnapping was revoked and he remained in custody then until 17 December 2001, when the plea was heard. It was on 20 December 2001 that the judge imposed the sentence for the kidnap to which we have previously referred. About a year later, the applicant was arraigned on the charge of attempted murder and was acquitted.

In the course of the plea hearing for the kidnap, the judge declared under s.18 of the Sentencing Act

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 Chimirri

Details

AGLC: R v Chimirri [2003] VSCA 45
Case: [2003] VSCA 45
Decision Date: 16 April 2003

CaseChat Overview and Summary

In the matter of R v Chimirri, the appellant, who had previously been charged with kidnapping and had been granted bail, was subsequently charged with attempted murder. The primary issue before the court was whether the time the appellant spent in custody for the kidnapping charge should be considered doubly warranted when he was sentenced for the attempted murder charge. The court had to determine whether section 18 of the Sentencing Act applied to this scenario and, if not, whether the discretion in sentencing should be exercised in line with the authorities set out in R v Renzella and R v Stares.

The court examined whether the appellant's time in custody for the kidnapping charge should be taken into account when sentencing him for the attempted murder charge. It found that section 18 of the Sentencing Act did not apply in this situation as it pertains to situations where an offender has been remanded in custody on one charge and subsequently charged with another offence. The court noted that the appellant was on bail when the subsequent charge was laid, thus the statutory provision did not apply. Consequently, the court needed to determine if the sentencing discretion should follow the principles established in R v Renzella and R v Stares.

The court held that the sentencing discretion should be exercised in accordance with the principles established in R v Renzella and R v Stares. These cases establish that when an offender has been in custody for one charge and is subsequently charged with another offence, the time spent in custody for the first charge should not be taken into account in the sentencing for the second charge. The court found that these authorities were applicable, and thus the appellant's time in custody for the kidnapping charge should not be doubly warranted in the sentencing for the attempted murder charge. The court exercised its discretion in accordance with these authorities, ensuring that the appellant's sentence for the attempted murder charge was not inflated by the time he had already spent in custody.

The final orders of the court were that the appellant's time in custody for the kidnapping charge would not be considered doubly warranted when sentencing him for the attempted murder charge. The court exercised its discretion in line with the principles established in R v Renzella and R v Stares, ensuring a fair and just outcome for the appellant.

Orders