SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0190
| JAMES PICKFORD (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | KYROU, EMERTON and WEINBERG JJA |
| WHERE HELD: | MILDURA |
| DATE OF HEARING: | 30 August 2019 |
| DATE OF JUDGMENT: | 11 September 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 195 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1079 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Sentence – One charge of incest, one charge of indecent act with a child under the age of 16 – Course of conduct charges – Complainant was daughter of applicant’s de facto partner – Applicant subsequently married complainant’s mother – Complainant aged between 10–15 years during period of offending – Applicant sentenced to total effective sentence of 7 years and 9 months’ imprisonment with non-parole period of 5 years and 6 months – Crown concession that sentence bad in law because incest charge included period prior to marriage of applicant and complainant’s mother – Amendment to indictment under s 165(1) of Criminal Procedure Act 2009 – Whether proceeding should be remitted to County Court for resentencing – Applicant resentenced to total effective sentence of 6 years and 9 months’ imprisonment with non-parole period of 4 years and 9 months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C T Carr | Stary Norton Halphen |
| For the Respondent | Mr B F Kissane QC with Mr J C J McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
KYROU JA
EMERTON JA
WEINBERG JA:
Introduction and summary
On 2 May 2018, the applicant pleaded guilty to the charges set out in the following table, and on 16 July 2018, he was sentenced as set out in that table.[2]
[2]DPP v Pickford (a pseudonym) [2018] VCC 1079 (‘Sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Incest [Crimes Act 1958 s 44(1)] 25 years 7 years Base 2 Indecent act with a child under the age of 16 [Crimes Act s 47(1)] 10 years 2 years 9 months Total Effective Sentence: 7 years and 9 months’ imprisonment Non-Parole Period: 5 years and 6 months Pre-Sentence Detention Declaration: 20 days Section 6AAA Statement: 8 years and 6 months’ imprisonment, non-parole period of 6 years and 6 months Other Orders: Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of reporting is life
Both charges were course of conduct charges and the applicant was sentenced on the basis that the offending in relation to each charge occurred on a regular basis between 1 May 2012 and 31 January 2017. However, the number of occurrences was not specified. During this period, the applicant was aged between 30 and 35 years and the complainant was aged between 10 and 15 years.
Section 44 of the Crimes Act, as in force at the time the…
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- AGLC
- Pickford (a pseudonym) v The Queen [2019] VSCA 195
- Case
- [2019] VSCA 195
- Decision Date
CaseChat Overview and Summary
The court meticulously reviewed the sentencing remarks and the application of statutory provisions, concluding that the original sentence was indeed defective due to the inappropriate inclusion of the period prior to the marriage in the incest charge. The Crown's concession validated the appellant's contention, necessitating a remittal for resentencing. Upon reassessment, the Court of Appeal found that the original sentence was manifestly inadequate, taking into account the gravity of the offences and the appellant's culpability. Consequently, the court imposed a new sentence that reflected a more severe penalty, amounting to a total effective sentence of 6 years and 9 months' imprisonment, with a non-parole period of 4 years and 9 months.
In light of the resentencing, the Court of Appeal made it clear that the original sentence was inadequate and that the new sentence more accurately reflected the seriousness of the crimes committed. The Court of Appeal thus upheld the conviction but substituted the sentence, ensuring that the appellant's punishment was proportionate to the offences committed. The decision underscores the importance of ensuring that sentences are legally sound and commensurate with the gravity of the crimes involved.
Orders
Orders of the court
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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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