R v Riem - [2007] VSCA 283

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 417 of 2006

THE QUEEN
	v
CHANNA RIEM

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JUDGES:	CHERNOV, VINCENT and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2007
DATE OF JUDGMENT:	29 November 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 283	First revision – 6 December 2007

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Criminal law – Sentencing – Recklessly causing serious injury – Armed robbery – Being a prohibited person in possession of an unregistered firearm – Second presentment containing counts of armed robbery, attempted armed robbery and being a prohibited person in possession of an unregistered firearm – Manifest excess – Relevant prior convictions – Totality – Appellant subject to parole order at time of sentencing – Subsequent cancellation of parole order – Fresh evidence – R v Piacentino and Ahmad (2007) 15 VR 501 – Appeal allowed – Appellant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D A Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Mr D A Dann	Balmer & Associates

CHERNOV JA:

I ask Vincent JA to deliver the first judgment.

VINCENT JA:

The appellant pleaded guilty (on presentment No C0604296) in the County Court at Melbourne, on 4 December 2006, to one count of recklessly causing serious injury, one count of armed robbery and one count of being a prohibited person in possession of an unregistered firearm. These offences were committed on 11 December 2005.

He also pleaded guilty (on a separate presentment no T03040878) to one count of armed robbery, one count of attempted armed robbery and one count of being a prohibited person in possession of an unregistered firearm.

He admitted 27 prior convictions arising from eight court appearances before the Children's and Magistrates' Courts between 30 July 1997 and 17 January 2005. In addition to offences relating to the possession and use of drugs, there were, in his criminal history, three convictions for the possession of a regulated weapon, three for assault, one for affray, one of burglary, three of theft, and notably for present purposes, a conviction for armed robbery.

After hearing a plea in mitigation of penalty, the sentencing judge, on 5 December 2006, made the following orders:

On Presentment C0604976 –

On count 1 - 18 months’ imprisonment

On count 2 - 4 years’ imprisonment

On count 3 - 9 months’ imprisonment

Her Honour directed that six months of the sentence on count 1 be served cumulatively upon that imposed on count 2. This order created a total effective sentence on this presentment of four years and six months’ imprisonment.

On Presentment T03040828 –

On count 1 - 3 years and 6 months’ imprisonment

On count 2 - 3 years’ imprisonment

On count 3 - 9 months’ imprisonment

Her Honour directed that six months of the sentence on count 2 be served cumulatively upon that imposed on count 1 making a total effective sentence on this presentment of four years.

Her Honour then ordered that two years of the effective sentence imposed on presentment no…

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 Riem

Details

AGLC: R v Riem [2007] VSCA 283
Case: [2007] VSCA 283
Decision Date: 29 November 2007

CaseChat Overview and Summary

In the matter of R v Riem, the appellant was convicted on two counts of armed robbery, one count of attempted armed robbery, and one count of being a prohibited person in possession of an unregistered firearm. The court was tasked with determining an appropriate sentence for these serious offences, which had been committed in a manner that demonstrated a significant degree of recklessness, resulting in serious injury to one of the victims. The sentencing was complicated by the presence of relevant prior convictions and the appellant’s status under a parole order at the time of sentencing, which was subsequently cancelled.

The primary legal issues before the court involved assessing whether the sentence imposed was manifestly excessive, taking into account the totality of the circumstances, and whether fresh evidence regarding the appellant’s parole status could be considered. The court had to balance the gravity of the offences with the principles of proportionality and deterrence, while also considering the appellant's criminal history and the impact of the parole order on his circumstances at the time of sentencing. The court referenced the decision in R v Piacentino and Ahmad, which established the criteria for determining manifest excess in sentencing.

The court concluded that the initial sentence was indeed manifestly excessive given the totality of the circumstances, including the appellant's parole status at the time of sentencing. The court allowed the appeal and re-sentenced the appellant, taking into account the fresh evidence and the principles set out in the cited authority. The re-sentencing aimed to reflect a just and proportionate punishment for the offences committed, while also considering the appellant’s personal circumstances and the need for an appropriate deterrent effect.

Orders