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:
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.
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…
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- AGLC
- Pettiford v The Queen [2011] VSCA 96
- Case
- [2011] VSCA 96
- Decision Date
CaseChat Overview and Summary
The Court of Appeal found that the appellant's borderline intellectual functioning and other mental impairments did not establish a causal connection with his offending, following the principles in Romero v The Queen. Additionally, the court considered it not inappropriate to refer to the appellant's denial of the offending as a cause of the approximately 13-year delay between the offending and the imposition of sentence, in accordance with R v Nikodjevic. The court concluded that the sentences imposed were manifestly excessive, taking into account the appellant's youth at the time of the offending, the absence of subsequent offending during the lengthy period of delay, and the increased burden of imprisonment due to his low intelligence and other mental impairments. The guilty plea was also considered in the sentencing process.
The Court of Appeal allowed the appeal and re-sentenced the appellant, taking into account the aforementioned factors. The appellant's sentences were reconsidered to reflect a more appropriate punishment given the circumstances of the case. The court did not provide specific details regarding the new sentences but noted that they were adjusted to address the issues raised in the appeal.
Orders
Orders of the court
Appellant re-sentenced.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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