Rivero v The King - [2025] VSCA 144

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2025 0083

CHARLES GARY SCHWENK RIVERO	Appellant
v
THE KING	Respondent

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JUDGES:	NIALL CJ and KIDD JA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2025
DATE OF JUDGMENT:	20 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 144
JUDGMENT APPEALED FROM:	[2025] VCC 145 (Judge Moglia)

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CRIMINAL LAW – Appeal – Sentence – Import commercial quantity of border controlled drug – Post-sentence diagnosis of terminal cancer – Short life expectancy – Fresh evidence – Mercy – Leave to appeal granted – Appeal allowed – Non-parole period of 396 days fixed.

Ale v The King [2025] VSCA 92; R v Nguyen [2006] VSCA 184; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; R v Shrestha (1991) 173 CLR 48, considered.

Price (a pseudonym) v The Queen [2018] VSCA 54; Cavanagh v the Queen [2016] VSCA 305; Ridge v The Queen [2013] VSCA 203; Cardona v the Queen [2011] VSCA 58, followed.

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Counsel
Applicant:		Mr LDJ Cameron
Respondent:		Mr S Ginsbourgh
Solicitors
Applicant:	Abbey Johnson, Stary Norton Halphen
Respondent:	Sarah Gleisner, Commonwealth Office of Public Prosecutions

NIALL CJ
KIDD JA:

On 20 February 2025, the appellant pleaded guilty to one charge of importing a commercial quantity of a border controlled substance, namely cocaine, contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth). A plea hearing ensued on that day before his Honour Judge Moglia.
Later that day, his Honour sentenced the appellant as follows:

Charge	Offence	Max Penalty	Sentence	Commencement/ Cumulation
1	Import commercial quantity of border controlled drug (cocaine)[1]	Life imprisonment or 7,500 penalty units, or both	6 years 6 months’	Commences 20 February 2025
Total Effective Sentence (Cth): Non-Parole Period:		6 years 6 months’ imprisonment 3 years 7 months
Pre-sentence Detention Declared:		276 days
Section 6AAA Statement:		Total Effective Sentence 8 years 6 months’ Non-Parole Period 5 years 6 months
Other Relevant Orders: Nil.

[1]Contrary to s 307.1(1) of the Criminal Code Act 1995 (Cth).

The appellant sought leave to appeal on a single proposed ground, expressed as follows:
By reason of fresh evidence of the applicant’s diagnosis of terminal cancer, the sentence imposed on the applicant should be set aside and a different sentence imposed, to avoid a miscarriage of justice.
The listing for the hearing of this matter was expedited and heard on 20 June 2025. At the conclusion of oral argument the Court ordered that:
(a)Leave to appeal should be granted.
(b)The appeal is allowed.
(c)The sentence of imprisonment imposed upon the appellant in the County Court on 20 February 2025 is set aside and in its place, the appellant is resentenced to 6 years and 6 months’ imprisonment. A non-parole period of 13 months is fixed.
(d)It is declared that the period of 396 days, not including today, be reckoned as already having been served under this sentence.
We indicated that we would publish our reasons shortly. These are our reasons.

Circumstances of…

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 Rivero v The King

Details

AGLC: Rivero v The King [2025] VSCA 144
Case: [2025] VSCA 144
Decision Date: 20 June 2025

CaseChat Overview and Summary

The appellant in this case, identified as Rivero, is appealing against his sentence for importing a commercial quantity of a border controlled drug. The case was heard in the Supreme Court of Victoria. The crux of the dispute centres on the severity of the sentence imposed on Rivero, particularly in light of the subsequent diagnosis of terminal cancer, which significantly reduced his life expectancy. Rivero argues that the sentence was excessively harsh given his dire health prognosis and requests a reduction in the non-parole period.

The legal issues before the court were whether the original sentence was appropriate in light of the appellant's post-sentence health diagnosis and whether there was sufficient justification to reduce the non-parole period. The court had to consider the principles of mercy and proportionality in sentencing, as well as the relevance of fresh evidence in modifying a sentence. The appellant's counsel cited precedent cases such as Ale v The King and R v Nguyen, arguing for a more lenient sentence considering the appellant's health condition. The Crown, on the other hand, maintained that the original sentence was appropriate and should not be altered.

The court, after thorough deliberation, accepted that the appellant's health condition constituted exceptional circumstances warranting a review of the sentence. The court emphasised the importance of mercy in sentencing and acknowledged that the appellant's short life expectancy was a significant factor. The court also considered the gravity of the offence and the need to maintain public confidence in the criminal justice system. Ultimately, the court allowed the appeal and fixed a new non-parole period of 396 days, reflecting a balance between the appellant's health condition and the seriousness of the offence.

Orders