Riley v The Queen [2015] VSCA 259

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.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

**1 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).

2 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]

3 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.**

**4 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 obtain property by deception[9] (charge 12); one charge of being armed with criminal intent[10] (charge 17); one charge of aggravated burglary[11] (charge 18); one charge of armed robbery[12] (charge 19); and one charge of false imprisonment[13] (charge 20). The appellant also pleaded guilty to two summary charges of discharging firearm in populous place[14] (summary charge 9) and loitering with intent[15] (summary charge 20).

5 The judge sentenced the appellant on 3 December 2014, to a total effective sentence of seven years' imprisonment, upon which she fixed a non-parole period of four years and eight months' imprisonment, according to the following table:**

Prohibited person in possession of firearm[16]

9 years' imprisonment with a non-parole period of 6 years

The sentence was ordered to be served concurrently with the 9 month sentence already being served by the appellant (imposed 1 December 2014). A forensic order sample order pursuant to s 464ZF of the Crimes Act 1958 was made by consent.

**6 It is necessary to say something of the essential facts.

7 The appellant's offending embraced five separate incidents. At the relevant times the appellant was either 23 or 24 years of age.

8 In her reasons for sentence, the judge gave an adequate description of the appellant's offending as follows:[17]**

In relation to the first incident, I was told that on Friday, 4 May 2012 at about 10 pm, you were a front seat passenger in a car being driven by another male. You attended a service station in Thomastown and, after purchasing some beanies, you drove to an area where a number of youths were gathered.

For no apparent reason, you pointed a loaded sawn-off shotgun out of a window of the car and fired a shot in the direction of the group of males, but above their heads. This gives rise to Charge 1 [prohibited person in possession of a firearm] on the indictment and summary Charge 20 (sic., charge 9) [discharge firearm in a populous place]. You are most fortunate that you are not charged with conduct endangering life in relation to this offending. However, I sentence you on the basis that you are to be dealt with for a summary offence in relation to discharging ... a weapon which you were prohibited from possessing.

You then got out of the car, holding the sawn-off shotgun, and approached the males. You hit one of the males, a Mr Kostovski, on the head with the butt of the shotgun. Mr Kostovski and the other five youths ran off. Mr Kostovski sustained a minor injury to his head. None of these victims were known to you. Your approach to the males with the weapon and assault of Mr Kostovski using the weapon in the presence of the other males, gives rise to Charges 2 to 7 on the indictment [common assault].

In respect of Incident 2, which gives rise to Charges 8 and 9 [burglary and theft], I was told that on 18 January 2014, you attended private residential premises in Burnside Heights. You broke into the residence by forcing open the rear laundry door using a metal bar or similar item.

You stole a Sony stereo, a car stereo and equipment, a Logitec PC stereo, a Hewlett Packard computer, a set of car lights, four mag wheels, a Honda cold air intake, a Samsung computer monitor, a television and a Hewlett Packard printer - the value of these goods was about $5,000.

Incident 3 gives rise to Charges 10, 11 and 12 [handling stolen goods, obtaining property by deception and attempting to obtain property by deception]. The basis for these charges is that on 2 February 2014, you used a credit card which had been stolen by unknown burglars eight days earlier, to purchase petrol and food from a convenience store in Thomastown, to the value of $78.44. This gives rise to Charge 11. Further, you used the stolen credit card to pay for a two-way security system to be fitted to a car, for $900. However, I understand that the item was not collected. This gives rise to Charge 12.

Subsequently, the owner of the credit card and other items which had been stolen from his property, identified property found at your residence which included his wallet, bag and credit card. These items which were found at your property give rise to Charge 10.

In relation to incident 4 which gives rise to Charges 13 and 14 [burglary and theft], I was told that on Monday, 10 February 2014, you and another male attempted to jemmy open a door at a residential property in Scotts Parade, Ivanhoe. You went to another window and removed the flyscreen, then attempted to jemmy open a sliding door with success. You then went to double glass doors and successfully entered the house by forcing the frame of the doors, which split the frame. You then climbed on a chair and ripped a security sensor from the wall, causing the alarm to be activated. You then effectively ransacked the property, stealing a number of items including jewellery and a locked filing cabinet. The value of items said to be stolen was about $13,000. ...

In relation to incident 5, I was told that at about 11.00am on Tuesday, 11 February 2014, you attended at an address in Dawes Court, Mill Park. You rang the doorbell and a lone female occupant answered. You were riding a motorcycle that day.

Ms Petruccelli, the occupant, did not open the door. You said something to her but she could not understand you as you kept your helmet on. You pushed your face up to the glass surrounding the door, then tried the door handle and the garage door. You then rode off on your motorbike and Ms Petruccelli called police.

You then went to Corbin Place in Mill Park. You knocked on the door of a unit there and Ms Filippone opened the door. You asked if a Samantha lived there and Ms Filippone said she did not. You again asked if she lived there and Ms Filippone said that she did not. Ms Filippone's boyfriend called out from inside the unit. She said you should perhaps try next door.

You then rode your motorbike to another unit in the block and rang the front doorbell, speaking with Ms Incledon. Ms Incledon opened the front door but kept the security door closed and locked. You asked if Sam was there and she said that you had the wrong address. You then said that you were looking for an ice pipe and that people had told you to come to this address. You produced a small sandwich bag from your pocket which contained a clear crystal-like substance. You asked Ms Incledon if she wanted some ice and she said she did not. You told her to open the security door as you could not see her. You said that if she shut the wood door you would break in. You told her that you had been advised that this was a sex house and you asked for sex. Ms Incledon told you to leave. You asked to see what Ms Incledon looked like. She asked you to leave again and you said you would be back.

You then got on the motorbike and left. Ms Incledon also called the police.

Shortly after this incident, you rode to an address in Friendship Avenue, Mill Park. You stood at the secure front gates and rang the intercom. You stood on the footpath and produced a small firearm which you held onto. You then removed your motorbike helmet and had a conversation with a Ms Disbastiano. Ms Disbastiano observed you holding the weapon. You asked Ms Disbastiano if Bobby was home and she told you that no one by that name lived there. You told her that you were looking for Bobby and had come a long way to look for him. She again told you that there was no one by that name there. You then put your motorbike helmet on, placed the firearm down the side of your pants and rode off on your motorbike. You were captured on CCTV cameras 25 minutes later as you rode back past these premises. The incident involving Ms Disbastiano gives rise to Charges 16 and 17 [prohibited person in possession of a firearm and loitering with intent] on the indictment and the summary charge of loitering with intent to commit an indictable offence. I have factored in that there is a fairly significant degree of overlap between Charge 17 on the indictment and the summary charge.

Between 11.30am and 12.00pm, you again attended at an address in Friendship Avenue, Mill Park, parking your motorbike in the driveway of these premises. You knocked on the front door, which was answered by Ms Jeyakanthan. Ms Jeyakanthan was eight months pregnant and at home with her three year old daughter. She opened the door and you were standing at the door wearing your motorbike helmet. You said that you wanted to meet her husband, saying you had come from Sydney and would have to wait to meet him. You then walked into the premises and locked the door behind you. You then reached into your side and took out a gun and held the gun in your right hand, pointing it directly at Ms Jeyakanthan. You kept the gun close to your hip but still pointing at the victim. This gives rise to Charge 18 [aggravated burglary].

A weapon which was found at your residence subsequently was photographed by police and at the plea hearing you instructed that this was the weapon used. The gun was an imitation firearm but was realistic in appearance.

You took your helmet off then pushed the victim into the laundry by her shoulder. Although this was not a hard push, she said that she was very scared and so complied.

You then took a glass from the kitchen and drank some water, leaving the glass in the laundry and the tap running. You took the phone from the kitchen and you took the victim's mobile phone and placed these in your pocket. You then closed the laundry door, leaving the victim in there. Ms Jeyakanthan's daughter was in the bathroom and she could hear her calling for her.

After about two minutes, you opened the laundry door and asked 'Where's the cash?' The victim replied that her husband handled the cash. You said 'Don't lie'. She describes you as talking in a demanding way but not shouting. The victim came out of the laundry and got her daughter. You emptied the contents of the victim's handbag which was on the kitchen table. The bag contained Australian dollars and foreign currency and also contained a Medicare card and Commonwealth Bank debit card. You placed all of these items in a shopping bag. You then went into a bedroom and went through bags in this room. Some of these contained imitation necklaces and earrings. You placed these items in the same bag. In the master bedroom, you were pulling things from the shelves and took assorted jewellery. The complainant had followed you into the master bedroom and was crying. You said, 'Don't cry, if you cry I'll shoot you.' Your conduct in stealing the various possessions just referred to in circumstances where you had a weapon with you, constitute Charge 19 [armed robbery].

You then picked up a child's dress and wiped down everything you had touched. You took the victim's mobile phone and house phone from your pocket and wiped these down also. You then took the front door keys for the premises. You left the premises, riding off on your motorbike. The value of the property stolen was about $8,500. You discarded the child's dress in a nearby street.

Your conduct from the time that you entered the premises and locked the door to the time you left constitutes Charge 20 [false imprisonment].

In sentencing you in respect of this incident, I have factored in that you embarked on a course of conduct commencing with the aggravated burglary, which then continues on giving rise to Charges 19 and 20.

Police attended an address which was well known to the police and observed your motorbike parked behind a back shed. It had no rear number plate and identifying numbers had been ground off. Your motor bike helmet was found on the back step and various items connected with you were found within the premises. At this stage, you had fled the premises.

It was subsequently ascertained that the motorcycle you were using had been stolen, giving rise to Charge 15 [handling stolen goods].

You were arrested on 13 February 2014 and a search warrant was executed at your home. The small black and silver imitation pistol to which I previously referred was found there, which is part of the evidence which gives rise to Charge 16 [prohibited person in possession of a firearm]. Other items of stolen property which were detailed in the Summary of Prosecution Opening were also found.

You were interviewed by police on 13 February 2014 but made 'no comment' answers in relation to allegations put.

**9 As the judge's summary of the offending makes clear, there was no dispute between the parties that the weapon that the appellant used to terrorise Ms Jeyakanthan was an imitation firearm. Plainly, it did not fit the definition of firearm for the purposes of the Firearms Act 1996.[18] Notwithstanding that this was so, however, the appellant pleaded guilty to being a prohibited person in possession of a firearm under s 5(1) of the Act.

10 Upon the hearing in this Court, the appellant was given leave to file a notice of appeal against conviction out of time limited to the conviction on charge 16. The notice contains a single ground of appeal:**

The conviction on charge 16 should be set aside because upon the admitted facts, the offence charged could not be constituted.

11 Despite the appellant's plea of guilty, there is no doubt that the Court may entertain an appeal against his conviction if, on the admitted facts, the appellant

could not have been found guilty of the offence charged.[19]

12 The respondent agreed with the appellant's contention that, on the admitted facts, he could not properly be convicted under s 5(1) of the Firearms Act. Indeed, there is no dispute that the weapon used by the appellant was an imitation firearm within the meaning of the Control of Weapons Act 1990.[20] Thus the conviction under s 5(1) of the Firearms Act 1996 cannot be permitted to stand. Counsel for the respondent submitted, however, that the Court has power to - and should - substitute a conviction under s 5AB(2) of the Control of Weapons Act 1990, which provides:

Offence to possess, use or carry an imitation firearm

...

(2) A prohibited person must not possess, use or carry an imitation firearm.

**13 Before proceeding further, we note that it is not disputed that the appellant relevantly was a prohibited person.[21] Furthermore, the maximum penalty under both s 5(1) of the Firearms Act 1996 and s 5AB(2) of the Control of Weapons Act 1990 is the same.[22]

14 Counsel for the appellant submitted that the Court has no power to substitute a conviction for being a prohibited person in possession of an imitation firearm. She argued that s 277(1)(c) of the Criminal Procedure Act 2009 ('CPA') - which is relied upon by the respondent - does not permit that course.

15 Although the issue is not free from difficulty, in our opinion it is not open to this Court to substitute a verdict in the manner suggested by the respondent.

16 Section 274 of the CPA provides that a person 'convicted[23] of an offence ... may appeal to the Court of Appeal against the conviction on any ground' if leave to appeal is given. By s 276, the Court must allow the appeal if the appellant satisfies the Court that (a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or that (b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or if (c) for any other reason there has been a substantial miscarriage of justice. Hence, the first limb of s 276 is concerned with unreasonable or unsupportable jury verdicts; the second limb with errors or irregularities in the trial; and the third limb is a 'catchall'.

17 Importantly, the powers of the Court when allowing an appeal against conviction are circumscribed by s 277 of the CPA, which relevantly provides:**

277 Orders etc. on successful appeal

(1) If the Court of Appeal allows an appeal under section 274, it must set aside the conviction of the offence (offence A) and must -

(a) order a new trial of offence A; or

(b) enter a judgment of acquittal of offence A; or

(c) if -

(i) the appellant could have been found guilty of some other offence (offence B) instead of offence A; and

(ii) the court is satisfied that the jury must have been satisfied of facts that prove the appellant was guilty of offence B -

enter a judgment of conviction of offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or

(d) if the appellant could have been found guilty of some other offence (offence B) instead of offence A and the court is not satisfied as required by paragraph (c)(ii), order a new trial for offence B; ...

**18 If an appeal against conviction is allowed, by virtue of s 277(1) the Court must set aside the conviction. Subsections (1)(a) and (b) then permit the Court to order a new trial or enter a judgment of acquittal. Substitution of a verdict for an alternative offence is permitted by sub-s (c), however, only if the appellant could have been found guilty of an alternative offence, and the court is satisfied that the jury (as opposed to a jury) must have been satisfied of facts that prove that the appellant was guilty of an alternative offence.

19 As inconvenient as the consequences of our interpretation may be, in our opinion the reference to 'the jury', and the necessity for 'the jury' to have been 'satisfied of facts that prove the appellant was guilty' of an alternative offence, make plain that the power to substitute an alternative verdict under s 277(1)(c) only arises following a verdict by a jury, and does not apply to the unusual situation that obtains in this case. The subsection simply does not permit the Court to substitute a verdict for another offence where an appeal against conviction is allowed under s 274 following a plea of guilty.[24]

20 Had the legislature foreseen the apparent hiatus that we have identified, we have no doubt that the gap would have been eliminated. But the words of sub-s (1)(c) are clear and unambiguous, and we cannot attach to them a meaning that they will not reasonably bear.[25] In our view, we have no power in the circumstances of this case to substitute a verdict.

21 Counsel for the respondent submitted that, should we conclude that substitution of a verdict was not possible, then we should order a new trial of the appellant on a charge of being a prohibited person in possession of an imitation firearm under s 5AB(2) of the Control of Weapons Act 1990. That is the course we propose to adopt. The possession of the firearm - whether imitation or not - was a serious offence warranting significant punishment. In our view, the appellant should not be permitted to escape the consequences of his conduct, particularly in circumstances where the present dilemma might not have occurred if greater attention had been paid to the factual underpinnings of charge 16. Of course, it will be a matter for the Director whether any new trial takes place.**

**22 In our view, the circumstances of the first incident were very serious. The appellant pointed a sawn-off shotgun toward a group of males that he did not know, and fired a shot (albeit over their heads). He then struck one of the males on the head with the butt of the shotgun. Thus, charges 2 to 7 represent bad examples of common assault.

23 Moreover, the conduct giving rise to the aggravated burglary, armed robbery and false imprisonment (charges 18, 19 and 20), part of the 'fifth incident', was extremely grave. It was an appalling episode of offending, which merited a substantial term of imprisonment. The appellant's behaviour was horrifying. A private home was invaded, and the female occupant - who was eight months' pregnant and who had the care of a small child - was subjected to a terrifying ordeal at the point of a gun. She was not to know that the firearm was an imitation, and she must have been very frightened for her welfare and that of her children (born and unborn). A deal of valuable property was taken by force. In our view, the use of the imitation pistol puts the aggravated burglary at the serious end of the spectrum.

24 We did not take there to be any complaint with the individual sentences imposed for the charges flowing from the second, third or fourth incidents. Those sentences are, in our opinion, unremarkable.

25 So far as the matters urged on us by the appellant's counsel, it is apparent that the judge accepted various matters in mitigation that were put to her on the plea, including the appellant's early guilty pleas (and limited remorse); his deprived upbringing and intellectual capacity; his relatively young age; and the fact that he would be placed into custody for the first time. Perhaps a little generously, her Honour found that the appellant's drug abuse neither aggravated nor mitigated the offending. Unsurprisingly, however, the judge concluded that the appellant's prospects of rehabilitation were 'guarded'.

26 As we have endeavoured to convey, we regard much of the appellant's conduct - in particular, the conduct foundational of charges 18, 19 and 20 - as outrageous. It could not sensibly be argued that anything other than a substantial sentence of imprisonment was appropriate.

27 The appellant is aged 26 years, having been born on 21 March 1989. He has an unenviable record of prior offending. Without descending to detail, he has a significant number of prior findings of guilt for making a threat to kill, unlawful assault, recklessly causing injury, criminal damage and a variety of dishonesty offences (although, it must be said, he has not previously been sentenced to imprisonment).

28 To say that a sentence is manifestly excessive is to express a conclusion. It is a conclusion which frequently does not admit of much amplification; and it is a conclusion that does not depend upon the attribution of identified specific error in the judge's reasoning. Excess is, or is not, plainly apparent.[26]

29 Having heard full argument, notwithstanding the appellant's relative youth, pleas of guilty, deprived background and intellectual deficits, we are of the view that the sentence imposed is far from being manifestly excessive. Indeed, it is well within the permissible range.

30 The appeal against sentence must be dismissed.**

**31 As we have said, the conviction and sentence on charge 16 must be set aside. We would order a new trial on a charge of being a prohibited person in possession of an imitation firearm.

32 The appeal against sentence will be dismissed. Save as aforesaid, we will confirm the sentences of imprisonment imposed on all charges on the indictment and the summary charges, together with all orders for cumulation and ancillary orders. The quashing of the conviction and sentence on charge 16 will result in the total effective sentence being reduced by two months, to six years and 10 months' imprisonment. Despite the slight reduction in the total effective sentence, we would not disturb the non-parole period of four years and eight months' imprisonment. As we have said, we regard the sentences that were imposed as within range.

[1] Control of Weapons Act 1990, s 5AB(2).

[2] Firearms Act 1996, s 5(1A). The maximum sentence is 15 years' imprisonment.

[3] Firearms Act 1996, s 5(1). The maximum sentence is 10 years' imprisonment.

[4] Common law. The maximum sentence is 5 years' imprisonment: Crimes Act 1958, s 320.

[5] Crimes Act 1958, s 76(1). The maximum sentence is 10 years' imprisonment.

[6] Crimes Act 1958, s 74. The maximum sentence is 10 years' imprisonment.

[7] Crimes Act 1958, s 88. The maximum sentence is 15 years' imprisonment.

[8] Crimes Act 1958, s 81(1). The maximum sentence is 10 years' imprisonment.

[9] Crimes Act 1958, s 321M. The maximum sentence is 5 years' imprisonment.

[10] Crimes Act 1958, s 31B. The maximum sentence is 5 years' imprisonment.

[11] Crimes Act 1958, s 77(1). The maximum sentence is 25 years' imprisonment.

[12] Crimes Act 1958, s 75A. The maximum sentence is 25 years' imprisonment.

[13] Common law. The maximum sentence is 10 years' imprisonment: Crimes Act 1958, s 320.

[14] Firearms Act 1996, s 131(1). The maximum sentence is 12 months' imprisonment.

[15] Summary Offences Act 1966, s 49B. The maximum sentence is 2 years' imprisonment.