Rich v The Queen - [2012] VSCA 273

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0205

PIA RICH	Applicant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and HARPER JJA and WILLIAMS AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 November 2012
DATE OF JUDGMENT	13 November 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 273
JUDGMENT APPEALED FROM	DPP v Pia Rich (Unreported, County Court of Victoria, Judge Hogan, 3 August 2012)

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CRIMINAL LAW — Application for leave to appeal against sentence — Two charges of attempted armed robbery — Guilty plea — Sentence of two years and six months’ imprisonment with non-parole period of 10 months — Long history of mental illness and drug induced psychosis — Whether judge erred in refusing to defer sentence — Sentencing Act 1991 s 83A — Diagnosis of particular mental illness uncertain — Whether judge erred in refusing to adjourn matter to allow provision of further psychiatric report — Whether sentence manifestly excessive — Application refused — No point of principle.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D Grace QC	Peter Monagle Lawyers
For the Respondent	Mr T Gyorffy QC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:
HARPER JA:
WILLIAMS AJA:

The applicant, Pia Rich, seeks leave to appeal against a sentence of two years and six months’ imprisonment, with a non-parole period of 10 months, which was imposed on her by a County Court judge following her plea of guilty to two counts of attempted armed robbery. The maximum penalty for this offence is 20 years’ imprisonment.[1]
[1]The applicant was granted an extension of time in order to file the application.

Circumstances of the offending

The offending occurred on the morning of 7 November 2011. The applicant was then 23 years old.

At around 6.39 am, the applicant flagged down a taxi along Elizabeth Street in Melbourne. She sat in the rear passenger seat of the taxi and directed the driver to a location in South Melbourne. As the driver was telling her the amount of the fare, the applicant placed the hood of her jacket over her head, and held a knife (described by the victim as approximately 1 foot in length) to the driver’s right shoulder, saying ‘give me fucking whatever you have’. The driver said he had no money, and ran away from the vehicle (charge 1).

At around 6.54 am, the applicant flagged down a second taxi from South Melbourne. She sat in the rear passenger seat of the vehicle and directed the driver to Coventry Street. When they reached that destination, the applicant asked the driver to stop and moved directly behind his seat. She produced a knife (described by the victim as approximately 30 cm in length) and said ‘take out all of the money’. She then held the knife to the driver’s neck and said ‘give me your money’. The victim pushed the knife away, cutting the palm of his hand. He then got out of the vehicle and ran away (charge 2). He later drove himself…

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 Rich v The Queen

Details

AGLC: Rich v The Queen [2012] VSCA 273
Case: [2012] VSCA 273
Decision Date: 13 November 2012

CaseChat Overview and Summary

The case before the court was an application by the appellant, Rich, for leave to appeal against his sentence for two charges of attempted armed robbery. Rich had pleaded guilty to the charges and was sentenced to a term of two years and six months' imprisonment, with a non-parole period of 10 months. Rich sought leave to appeal on the basis that the sentencing judge had erred in not deferring sentence due to his long history of mental illness and drug-induced psychosis. He also argued that the judge should have adjourned the matter to allow for the provision of a further psychiatric report, as the diagnosis of his particular mental illness was uncertain.

The court considered whether the judge had erred in not deferring sentence or adjourning the matter. It examined the provisions of the Sentencing Act 1991 and whether the judge's decision to proceed with sentencing was justified under section 83A. The court noted that while Rich had a significant history of mental illness, the diagnosis of his particular mental illness at the time of sentencing was uncertain. It also considered whether the sentence was manifestly excessive.

The court found that there was no error in the judge's decision. It held that while Rich's mental health issues were relevant to sentencing, they did not warrant a deferral of sentence or an adjournment for a further psychiatric report. The court concluded that the sentence was not manifestly excessive and did not represent a point of principle that warranted leave to appeal. Consequently, the application for leave to appeal was refused.

Orders