Robert Raymond Ritchie v The Queen - [2016] VSCA 27

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0182

ROBERT RAYMOND RITCHIE	Appellant
v
THE QUEEN	Respondent

S APCR 2015 0185

SIMON TRENT HARRISON	Appellant
v
THE QUEEN	Respondent

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JUDGES:	BONGIORNO and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 March 2016
DATE OF JUDGMENT:	4 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 27
JUDGMENT APPEALED FROM:	DPP v Ritchie (Unreported, County Court of Victoria, Judge Stuart, 26 August 2015)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary – Intentionally causing injury – Incorrect maximum term of imprisonment – Sentencing judge referred to incorrect maximum term for intentionally causing injury when sentencing the appellants – Whether error could have materially affected sentences imposed – Whether different sentences should now be passed – Appeals dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant, Ritchie	Ms E H Ruddle	Emma Turnbull Lawyers
For the Appellant, Harrison	Mr S P Kennedy	Tait Lawyers
For the Crown	Mr B F Kissane QC	Mr J Cain, Solicitor for Public Prosecutions

BONGIORNO JA
BEACH JA:

Introduction

On 26 August 2015, the appellants, Simon Harrison and Robert Ritchie, each pleaded guilty in the County Court to one charge of aggravated burglary (charge 1) and one charge of intentionally causing injury (charge 2). Following a plea hearing, the appellants were sentenced as follows:

RITCHIE

Charge Offence Maximum Sentence Cumulation

1 Aggravated burglary [Crimes Act 1958
s 77(1)] 25 years [Crimes Act 1958 s 77(1)] 4 years 6 months Base

2 Causing injury intentionally [Crimes Act 1958 s 18] 10 years [Crimes Act 1958 s 81(1)] 2 years 6 months 1 year

Total Effective Sentence: 5 years 6 months’ imprisonment

Non-Parole Period: 3 years 6 months’ imprisonment

Pre-sentence Detention Declared: 284 days

6AAA Statement: 7 years 6 months (NPP: 5 years 6 months)

Other orders: Forensic Sample Order

HARRISON

Charge Offence Maximum Sentence Cumulation

1 Aggravated burglary [Crimes Act 1958
s 77(1)] 25 years [Crimes Act 1958 s 77(1)] 4 years Base

2 Causing injury intentionally [Crimes Act 1958 s 18] 10 years [Crimes Act 1958 s 81(1)] 2 years 6 months 1 year

Total Effective Sentence: 5 years’ imprisonment

Non-Parole Period: 3 years’ imprisonment

Pre-sentence Detention Declared: 76 days

6AAA Statement: 7 years (NPP: 5 years)

Other orders: Forensic Sample Order

During the course of the plea hearing, the prosecutor[1] told the judge that the maximum term of imprisonment for intentionally causing injury was 15 years. In fact, the maximum term for this offence was 10 years. Neither of the appellants’ counsel on the plea[2] corrected the prosecutor, and the judge sentenced the appellants on the basis of the prosecutor’s incorrect statement.
[1]Not counsel who appeared for the Crown on these appeals.
[2]We should say for completeness that counsel who appeared for Ritchie in this Court was not counsel who appeared on the plea.

On 2 December 2015, Osborn JA granted each of the appellants leave to appeal against his sentence on 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 Robert Raymond Ritchie v The Queen

Details

AGLC: Robert Raymond Ritchie v The Queen [2016] VSCA 27
Case: [2016] VSCA 27
Decision Date: 4 March 2016

CaseChat Overview and Summary

The case of Robert Raymond Ritchie versus The Queen involves an appeal against the sentence imposed for aggravated burglary and intentionally causing injury. The appellant was convicted and sentenced in the Supreme Court of New South Wales and the matter has now been brought before the Court of Criminal Appeal. The appeal centres on the contention that the sentencing judge erred by referring to an incorrect maximum term of imprisonment for the offence of intentionally causing injury.

The legal issues before the court were whether the sentencing judge's reference to an incorrect maximum term constituted a material error and, if so, whether this error materially affected the sentences imposed. It was argued that the error could have led to a harsher sentence than would have been appropriate had the correct maximum term been applied. The court needed to determine whether the sentences should be altered in light of the identified error.

The Court of Criminal Appeal considered the nature of the error and its potential impact on the sentencing. It was noted that while the error was significant, it did not necessarily follow that it materially affected the sentences imposed. The court found that the sentencing judge had correctly considered the relevant factors and the error did not lead to a different outcome in terms of the sentences handed down. Consequently, the appeal was dismissed and the original sentences were upheld.

Orders