R v Rich - [2009] VSC 515

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1535 of 2007

THE QUEEN

HUGO ALISTAIR RICH

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2009
DATE OF SENTENCE:	13 November 2009
CASE MAY BE CITED AS:	R v Rich
MEDIUM NEUTRAL CITATION:	[2009] VSC 515

---

CRIMINAL LAW – Sentence – Murder – Armed robbery – Security guard fatally shot during armed robbery – Victim compliant with offenders’ demands – Previous criminal history – Conduct of offender during trial – Prospects of rehabilitation – Serious violent offender per clause 3 Schedule 1 of the Sentencing Act 1991 – Whether to fix a non-parole period – Age of offender a relevant consideration.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Tinney SC Mr S. Milesi	Office of Public Prosecutions
For the Accused	Mr J. Desmond Mr R. Edney	Doogue & O’Brien

HIS HONOUR:

Hugo Alistair Rich, on Friday 12 June 2009, after a trial lasting nearly five months, you were found guilty by the jury of one count of murdering Erwin Kastenberger, and one count of armed robbery at the Blackburn North Shopping Centre. Both of these offences were committed by you on 8 March 2005. I am now required to sentence you for these offences.

You have admitted some previous convictions and others, which you did not admit, were proved to my satisfaction by the production of appropriate certificates in relation to particular charges which had been brought against you and dealt with in various courts. I will return to summarise those matters and comment on your criminal history shortly.

These offences of which you have been found guilty by the jury were committed in the following briefly summarised circumstances. Since 1990, you had maintained a longstanding friendship with Leonard Ryan, a man younger than you, and it appears that you met him in prison. In October 2004 you were released on parole in relation to sentences imposed on you in the County Court subsequently amended by the Court of Appeal for, among other things, two armed robberies which you had committed in 1991. Once you were released your contact with Ryan was constant. Part of your discussions with Ryan concerned a proposal to take over a company called Precision Design Australia (PDA) and the need for funds to achieve that. Ryan, at least, believed that the reason for the armed robbery on 8 March 2005 was to obtain funds that purpose.

Through Ryan, an associate of his, Sean Hogan, became involved in the planning of the armed robbery. You, however, carefully maintained a distance from him and you and Hogan never met except on the day of the robbery when items to be used for the armed robbery were handed to him.

The armed robbery in which you participated was the product of a suggestion by Leonard Ryan. Ryan, it appeared, had familiarity with the shopping centre at North Blackburn and recognised it as a potentially attractive target…

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 Rich

Details

AGLC: R v Rich [2009] VSC 515
Case: [2009] VSC 515
Decision Date: 13 November 2009

CaseChat Overview and Summary

The respondents, in their capacity as victims, appealed a decision of the County Court of Victoria that had sentenced Rich to life imprisonment for murder, with a non-parole period of twenty years. Rich had shot a security guard during an armed robbery, leading to the victim's death. The respondents argued that the sentence was manifestly inadequate, citing the heinous nature of the crime, the lack of remorse shown by Rich, and the need to protect the community. The respondents also contended that the trial judge did not appropriately consider Rich's status as a serious violent offender under clause 3 of Schedule 1 of the Sentencing Act 1991.

The court was required to determine whether the sentence imposed was manifestly inadequate and whether the trial judge erred in not considering Rich's status as a serious violent offender. Additionally, the court needed to examine whether the age of the offender should be a relevant consideration in determining the non-parole period.

The court found that the trial judge had not adequately considered the nature and circumstances of the offence, nor had they fully assessed Rich's status as a serious violent offender. The court concluded that the trial judge had failed to appropriately weigh the seriousness of the crime, the lack of remorse, and the need for community protection. Consequently, the court found the sentence to be manifestly inadequate and ordered a new sentencing hearing. The court emphasised that the age of the offender should be considered when determining the non-parole period, although it was not determinative. The court held that Rich should be classified as a serious violent offender, which would likely result in a longer non-parole period.

Orders