Riley v The Queen - [2015] VSCA 259

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0002

SHANNON RILEY	Appellant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 September 2015
DATE OF JUDGMENT:	21 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 259
JUDGMENT APPEALED FROM:	DPP v Riley (Unreported, County Court of Victoria, Judge Cannon, 3 December 2014)

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CRIMINAL LAW – Application for leave to appeal out of time – Conviction – Appellant pleaded guilty to a charge of being a prohibited person in possession of firearm – Appellant in possession of an imitation firearm – Appropriate charge that of being a prohibited person in possession of an imitation firearm – Section 5AB(2) of the Control of Weapons Act 1990 and section 5(1) of the Firearms Act 1996 – Whether Court has power to substitute a conviction under s 277(1)(c) of the Criminal Procedure Act 2009 – No power to substitute – Application for leave to appeal granted – Appeal allowed – Re-trial ordered on one charge.

CRIMINAL LAW – Appeal – Sentence – Appellant convicted of violence, firearms and dishonesty offences – Offending covered five separate incidents – Imprisonment for 7 years with 4 year and 8 month non-parole period – Whether sentence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms N D Kaddeche	Pica Lawyers
For the Crown	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

PRIEST JA
KAYE JA:

Introduction

Pursuant to leave granted by Priest JA on 12 March 2015, the appellant has appealed against sentences imposed upon him in the County Court on 3 December 2014, claiming that the sentences are manifestly excessive. Further, in circumstances that we will later describe, he has also sought leave to appeal against conviction with respect to charge 16 on the indictment (a charge of being a prohibited person in possession of a firearm).

For the reasons that follow, we would grant leave to appeal against the conviction on charge 16, allow the appeal and order that the appellant be retried on a charge of being a prohibited person in possession of an imitation firearm.[1]
[1]Control of Weapons Act 1990, s 5AB(2).

Save for the resentencing made necessary by the quashing of the conviction on charge 16, we would in all other respects dismiss the appeal against sentence and confirm the sentences and orders of the County Court.

The sentences

On 25 November 2014 the appellant pleaded guilty in the County Court at Melbourne to an indictment containing one charge of possession of an unregistered firearm whilst prohibited[2] (charge 1) and one charge of being a prohibited person in possession of a firearm[3] (charge 16); six charges of common assault[4] (charges 2 to 7); two charges of burglary[5] (charges 8 and 13); two charges of theft[6] (charges 9 and 14); two charges of handling stolen goods[7] (charges 10 and 15); one charge of obtaining property by deception[8] (charge 11); one charge of attempting to…

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 Riley v The Queen

Details

AGLC: Riley v The Queen [2015] VSCA 259
Case: [2015] VSCA 259
Decision Date: 21 September 2015

CaseChat Overview and Summary

Riley, an appellant, brought an application for leave to appeal out of time against his conviction and sentence. He was found guilty of being a prohibited person in possession of a firearm, despite the fact that he was in possession of an imitation firearm. The court had to determine whether it had the power to substitute the conviction under s 277(1)(c) of the Criminal Procedure Act 2009. The court found that it did not have the power to substitute the conviction. Therefore, the application for leave to appeal was granted, and the appeal was allowed on one charge, ordering a re-trial.

The appellant argued that the sentence of imprisonment for 7 years, with a non-parole period of 4 years and 8 months, was manifestly excessive. The court considered the appellant's offending, which covered five separate incidents, including violence, firearms, and dishonesty offences. The court found that the sentence was not manifestly excessive and dismissed the appeal. The reasoning was based on the totality of the offending and the need for general deterrence and denunciation.

Orders