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Rivera v The Queen

Rivera v The Queen

Case [2020] VSCA 5 31 January 2020

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0240

CARLO RIVERA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 January 2020
DATE OF JUDGMENT:	31 January 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 5
JUDGMENT APPEALED FROM:	[2018] VCC 1318 (Judge Cannon)

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CRIMINAL LAW – Appeal – Sentence – Intentionally causing injury and committing indictable offence while on bail – Whether judge erred in sentencing applicant on basis that injury caused was serious – R v De Simoni (1981) 147 CLR 383 referred to – Manifest excess – Whether total effective sentence of 6 years’ imprisonment with non-parole period of 4 years manifestly excessive – Error contended for by applicant not made out – Sentence not manifestly excessive – Appeal dismissed – Crimes Act 1958, ss 15, 16 and 18.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms G Connelly	Greg Thomas, Barristers and Solicitors
For the Respondent	Ms M Mahady	Ms A Hogan, Acting Solicitor for Public Prosecutions

BEACH JA

WEINBERG JA:

On 10 August 2018, the applicant pleaded guilty in the County Court to one charge of intentionally causing injury and one charge of committing an indictable offence while on bail. The maximum term of imprisonment for intentionally causing injury is 10 years, and the maximum term of imprisonment for committing an indictable offence while on bail is three months.

On 23 August 2018, the applicant was sentenced to a term of imprisonment of 5 years and 11 months on the charge of intentionally causing injury and a term of imprisonment of 2 months on the charge of committing an indictable offence while on bail. One month of the sentence imposed for the offence of committing an indictable offence while on bail was ordered to be served cumulatively on the sentence imposed for the offence of causing injury intentionally, making a total effective sentence of 6 years’ imprisonment. A non-parole period of 4 years was fixed. Presentence detention of 409 days was declared,[1] and the judge stated that but for the applicant’s plea of guilty she would have sentenced him to a total effective sentence of 8 years’ imprisonment with a non-parole period of 6 years.
[1]In argument we were told that there was an error in the calculation of presentence detention on the plea. The parties were agreed that the figure declared should have been 414 days. In the event that the applicant was unsuccessful in this Court, the applicant sought by consent, pursuant to s 325(2) of the Criminal Procedure Act 2009, that the judge’s declaration of presentence detention be varied from 409 days to 414 days.

The applicant now seeks leave to appeal against his sentence on the following grounds:

1.The sentencing discretion miscarried by reason of the judge sentencing on a charge of causing injury intentionally on the basis a life-endangering injury had been intentionally caused.
2.The sentence on charge 1 [causing injury intentionally], the total effective sentence and the…

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 Rivera v The Queen

Details

AGLC: Rivera v The Queen [2020] VSCA 5
Case: [2020] VSCA 5
Decision Date: 31 January 2020

CaseChat Overview and Summary

In the case of Rivera v The Queen, the appellant, Rivera, appealed against his sentence which was imposed by the County Court of Victoria. Rivera had been found guilty of intentionally causing injury and committing an indictable offence while on bail. The nature of the dispute was whether the judge erred in sentencing the appellant by considering the seriousness of the injury caused and whether the total effective sentence of six years' imprisonment with a non-parole period of four years was manifestly excessive.

The legal issues the court was required to decide included whether the judge erred in sentencing the appellant by considering the seriousness of the injury caused, as per the principles established in R v De Simoni (1981) 147 CLR 383. The court was also required to determine whether the sentence imposed was manifestly excessive. The appellant argued that the sentence was manifestly excessive, and the court needed to assess the correctness of this contention.

The court held that the judge did not err in sentencing the appellant by considering the seriousness of the injury caused. The court found that the sentence was not manifestly excessive. The principles established in R v De Simoni were considered, and it was determined that the sentence was within the range of appropriate sentences for the offences committed. The court concluded that the error contended for by the appellant was not made out and dismissed the appeal. The court found that the sentence of six years’ imprisonment with a non-parole period of four years was not manifestly excessive, and therefore the appeal was dismissed.

Orders