Pettiford v The Queen

[2011] VSCA 96

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 634 of 2009

SHAUN MATTHEW PETTIFORD

v

THE QUEEN

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JUDGES	NEAVE, MANDIE and TATE JJA
WHERE HELD	Melbourne
DATE OF HEARING	7 March 2011
DATE OF JUDGMENT	11 April 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 96
JUDGMENT APPEALED FROM	R v Pettiford (Unreported, County Court of Victoria, Judge Hampel, 12 May 2009)

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CRIMINAL LAW – Sentence – Appellant pleaded guilty to three counts of sexual penetration of a child under 10 and a count of indecent act with a child under 16 – Borderline intellect and other mental impairments – Failure to establish causal connection with offending – Romero v The Queen [2011] VSCA 45, applied – Appellant’s youth at time of offending – Not inappropriate to refer to denial of offending as a cause of approximate 13 year delay between offending and imposition of sentence – R v Nikodjevic [2004] VSCA 222, applied – Sentences manifestly excessive – Youth at time of offending – Absence of subsequent offending during lengthy period of delay bore favourably on prospects of rehabilitation – Increased burden of imprisonment because of low intelligence and other mental impairments – Guilty plea – Appeal allowed – Appellant re-sentenced.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Vivien Mavropoulos & Associates
For the Crown	Mr S M Cooper	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

1. The appellant, Shaun Matthew Pettiford, pleaded guilty to three counts of sexual penetration of a child under 16 and one count of indecent act with a child under 16.  After hearing a plea in mitigation of sentence, the learned sentencing judge sentenced him as follows:

Count	Offence	Maximum	Sentence	Cumulation
1	Sexual penetration of a child under 10[1]	20 years’ imprisonment[2]	4 years’ imprisonment	Base sentence
2	Sexual penetration of a child under 10[3]	20 years’ imprisonment	2 and a half years’ imprisonment	1 year
3	Sexual penetration of a child under 10[4]	20 years’ imprisonment	18 months’ imprisonment
4	Indecent act with a child under 16[5]	10 years’ imprisonment	2 years’ imprisonment	1 year

[1]Contrary to Crimes Act 1958, s 45(1).

[2]This was the maximum when the offences were committed. It was increased to 25 years’ imprisonment by the Sentencing and Other Acts (Amendment) Act 1997, s 60, sch 1.

[3]Contrary to Crimes Act 1958, s 45(1).

[4]Contrary to Crimes Act 1958, s 45(1).

[5]Contrary to Crimes Act 1958, s 47(1).

This amounted to a total effective sentence of 6 years’ imprisonment.  The judge directed that the appellant serve a period of 3 years before being eligible for parole.

1. On 5 March 2010, leave was granted to the appellant to appeal against sentence, on the basis that it was ‘reasonably arguable that her Honour did not take sufficient account of the fact that by reason of the applicant’s low intellect and psychiatric condition, gaol would be more burdensome to him than to a person not suffering from those problems’.  Although…