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

1. 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

1. 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.

1. On 2 December 2015, Osborn JA granted each of the appellants leave to appeal against his sentence on the sole ground that the judge had incorrectly stated the statutory maximum penalty for intentionally causing injury.[3] 

   [3]Harrison sought leave to appeal on an additional ground that his total effective sentence and non-parole period were manifestly excessive.  However, Osborn JA refused leave to appeal in respect of that ground and Harrison did not elect to renew that ground.

Circumstances of the offending

1. The appellants each pleaded guilty to the offences charged on the basis that there was a joint criminal enterprise between them to commit each offence.

1. The victim of the offences was Adam James (‘AJ’).  AJ was the cousin of the appellants.  He was 30 years of age at the time of the offences.

1. On or about 19 September 2014, Ritchie attended the home of AJ and borrowed $200 from him.  Ritchie promised to pay AJ back the loan by 25 September 2014.  On 23 September 2014, Ritchie, in the presence of Harrison, again attended at AJ’s home and requested a further loan from AJ, which AJ refused to provide. Ritchie became aggressive and threatened AJ that he would come back to his house and kill him.

1. The following evening, at about 9.30pm, the appellants arrived at AJ’s home and woke him by making threats from outside the house.  AJ was scared and remained silent.  The appellants then broke AJ’s bedroom window with a bundi stick — an aboriginal hunting weapon.  Harrison climbed through the window first, carrying the stick, and proceeded to punch AJ to the head three or four times while he was in bed.  AJ rolled onto the floor.  Harrison then hit AJ to the back of his head with the stick.  At this stage, Ritchie was still outside the house and he called out to Harrison to let him in through the front door.  Harrison let him into the house.

1. The appellants dragged AJ from his bedroom to the lounge room of the house. They then embarked on a sustained beating of AJ with their fists and with the bundi stick.  Ritchie demanded to know where the keys to AJ’s car were in the event that AJ did not have anything else that could be taken.

1. Following the attack, the next thing AJ recalled was being seated on the front door step of his house with Ritchie.  Ritchie was hitting him on the back of the neck with something.  Ritchie threatened that he was going to come back with more boys and take AJ’s car.  Ritchie then hit AJ on the head and neck about 8 times.  While this was happening, Harrison was searching the house for valuables to take. Subsequently, Harrison came outside and said that there was nothing worth taking. Harrison then left through the front gate of the property.

1. Ritchie again threatened AJ that he better have the keys to the car when he returned, before striking AJ to the head again, causing AJ to lose consciousness. Ritchie then left the property.  Neighbours called the police.

1. AJ was flown to the Royal Melbourne Hospital and found to have suffered broken teeth, bruising and abrasions and a spinous process fracture to the lower cervical spine.

1. On 25 September 2014, the appellants were arrested.  A contested committal took place in April 2015.  The trial was fixed for hearing on 25 August 2015.  On that day (25 August), the matter resolved into a plea.

The sentencing reasons

1. The judge commenced his reasons for sentence by stating the maximum penalties for the offences to which the appellants had pleaded guilty.  As we have already said, the judge was led into error by the prosecutor when he stated that the maximum penalty for intentionally causing injury was 15 years’ imprisonment, when in fact it was 10 years’ imprisonment.

1. Next, the judge noted that at the time of the offending, Ritchie was 47 years old and Harrison was 41 years old.  The judge then set out in some detail the circumstances of the offending.[4]

   [4]DPP v Ritchie and Anor (Unreported, County Court of Victoria, Judge Stuart, 26 August 2015), (‘Reasons’) [2]–[14].

1. The judge then noted the injuries that had been inflicted on the victim.  These included fractures to the victim’s neck, a laceration to his liver, facial and dental injuries (two broken teeth) and bruising.[5]  The judge also noted that at the time of the offending, Ritchie was on bail for offences involving charges of threat to kill, armed robbery and intentionally causing injury.[6]

   [5]Ibid [15].

   [6]Ibid [16].

1. In the course of sentencing, the judge noted the appellants’ significant criminal histories.  Ritchie had approximately 99 prior convictions from 14 appearances.  As the judge noted, Ritchie had been sentenced to imprisonment on no less than eight occasions, and had been charged and dealt with in relation to some eight offences involving violence to others.[7]

   [7]Ibid [31]–[34].

1. With respect to Harrison’s criminal history, the judge noted that he had prior convictions for some 50 offences from 13 court appearances, and that he also had prior convictions involving violence to others.[8]

   [8]Ibid [44]–[48].

1. Finally, the judge said:

General deterrence, deterring others from engaging in this type of outrageous conduct is the principal sentencing factor in this case.  It must be made plain that anybody who engages in the conduct such as this will, in similar circumstances, expect to go to gaol. 

Just punishment is also a matter I must take into account in sentencing both of you and denunciation of this outrageous behaviour.  People are entitled to shut the front door of their home, to have the peace and tranquillity and safety of their home being assured.  It is basic to a civilised society that that should be so.

Specific deterrence, that is deterring both of you also is important in this case as revealed not only by the persistent nature of your behaviour in attacking Mr James during this night but also by your prior criminal histories.  Thus the sentence that I must impose must also bring home to you that you must be deterred from further offending. 

I have carefully considered whether the same sentence ought be imposed on the both of you or a disparate or different sentence.  I have decided that in all the circumstances it is necessary for me to impose a somewhat heavier sentence on you, Mr Ritchie, than you, Mr Harrison.  This comes about because you were on bail in relation to offences of similar gravity at the time you committed these offences.  It was you who had the grievance.  It was you who instigated this matter.  Whilst your prior convictions are, in broad, the same as Mr Harrison's, they are matters in combination which I consider warrant a heavier sentence being imposed upon you.[9]

[9]Ibid [54]–[57].

Analysis

1. In the present case, the judge was led into error by counsel who appeared before him on the plea.  In delivering ex tempore reasons, the judge, in conformity with what he had been told by counsel, incorrectly stated that the maximum penalty for intentionally causing injury was 15 years, when in fact it was only 10 years.  However, not every mistake as to maximum penalty vitiates the sentencing discretion.  The relevant principles were summarised by Callaway JA in R v Beary[10] as follows:

I would summarise what I have said as follows.  First, the law is settled in this State that not every mistake as to the maximum penalty vitiates the sentencing discretion.  It depends on the circumstances.  Secondly, the only possible justification for that view

, in the face of s.5(2)(a) of the Sentencing Act, is that, in Mason, J’s words, a factor may be so insignificant in a particular case that the failure to take it into account could not have materially affected the decision.  Thirdly, consonantly with our emphasis on instinctive synthesis, before we hold that such a mistake does not reopen the discretion we have to be satisfied that it could not have materially affected the sentence.  Of course, even where the discretion is reopened, the Court may be of opinion that no different sentence should be passed.[11]

[10](2004) 11 VR 151 (‘Beary’).

[11]Beary (2004) 11 VR 151, 159 [21] (citation omitted). See further, Scott v The Queen [2010] VSCA 320, [10].

1. There is no complaint in this appeal concerning the sentences imposed upon the appellants for the charge of aggravated burglary.  Having regard to the objective seriousness of their offending and their bad prior criminal histories, the sentences imposed for aggravated burglary were entirely appropriate.[12]  There are two issues on this appeal:  first, whether it can be said that the judge’s error as to the maximum sentence could not have materially affected the sentences he imposed;  and secondly, whether any different sentence should now be passed.

   [12]Cf Hogarth v The Queen (2012) 37 VR 658.

1. The sentences imposed for intentionally causing injury in the circumstances of this case were moderate.  The orders for cumulation were similarly moderate.  In our view, there is real substance in the proposition that the error as to maximum penalty could not have materially affected either of these sentences imposed by the judge.  But if there be any doubt about that issue, then we would conclude that, having regard to the maximum sentences for the offences (25 years’ imprisonment for aggravated burglary and 10 years’ imprisonment for intentionally causing injury) and the objective seriousness of the appellants’ offending, and taking account of all of their respective backgrounds and circumstances, no different sentence should now be passed in respect of either of the appellants.

Conclusion

1. Each appeal is dismissed.

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