R v Pettiford (Sentence) - [2024] NSWSC 319

Supreme Court

New South Wales

Medium Neutral Citation: R v Pettiford (Sentence) [2024] NSWSC 319
Hearing dates: 29 February 2024
Date of orders: 27 March 2024
Decision date: 27 March 2024
Jurisdiction: Common Law - Criminal
Before: Dhanji J
Decision:
(1)   Kevin James Pettiford is convicted for wounding with intent to murder Nathan Mellows. For this offence, the offender is sentenced to imprisonment for a term of 14 years and 3 months, commencing on 26 November 2019. A non-parole period of 10 years and 8 months is set to commence on 26 November 2019 and expiring on 25 July 2030. The balance of term is 3 years and 7 months and is due to expire on 25 February 2034.
(2)   Kevin James Pettiford is convicted of the murder of Andrew Whyte Murray. For this offence, the offender is sentenced to imprisonment for a term of 33 years and 3 months commencing on 26 August 2025. A non-parole period is set for 20 years and 3 months commencing on 26 August 2025 expiring on 25 November 2045. The balance of term is 13 years and is due to expire on 25 November 2058.
(3)   The total effective term is 39 years comprising a non-parole period of 26 years and a balance of term of 13 years. The earliest date the offender is eligible to be released on parole is 25 November 2045.

Catchwords:
CRIME – sentence – murder and wounding with intent to murder – guilty verdicts by jury – “Hand of Death” – targeting the “less dead” – senseless, brutal murder – admissions made by offender – offender’s mental health – history of homicidal ideation – conflicting views of the offender’s mental health – dispute between experts as to diagnosis of bipolar disorder – relevance of offender’s mental health impairment to sentence - imprisonment for life? – applicable discounts – assistance to law enforcement authorities - totality – victim impact statement – sentence imposed

Legislation Cited:
Crimes Act 1900 (NSW), s 19A, 27
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 30E(3)
Mental Health Act 2007 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020, s 4, 28(1)(b)

Cases Cited:
Droudis v R [2020] NSWCCA 322
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
MDZ v REGINA [2011] NSWCCA 243

Category: Principal judgment
Parties: Crown (Rex)
Kevin James Pettiford (Offender)
Representation:
Counsel:
B Campbell with K Biffin (Crown)
J Watts (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s): 2019/372723; 2020/6317
Publication restriction: Nil

JUDGMENT

On 21 November 2019, Andrew Whyte Murray, a 56-year-old man was sleeping rough in Tweed Heads. Kevin James Pettiford, having walked past Mr Murray’s unoccupied camp earlier, returned to the location and killed him. He did so by taking a large rock from a nearby seawall which he used to strike Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWSC 319
Decision Date: 27 March 2024

CaseChat Overview and Summary

In the case of R v Pettiford, the offender was convicted of murder and wounding with intent to murder by a jury. The court was tasked with determining the appropriate sentence for the offender, who had been found guilty of these serious offences. The offender had admitted to targeting the “less dead” during the attack, which was described as senseless and brutal. The offender had a history of homicidal ideation and conflicting views were presented regarding the diagnosis of bipolar disorder. The court had to consider the relevance of the offender’s mental health impairment to the sentence, the discounts applicable, and the assistance provided to law enforcement authorities, alongside the totality of the circumstances.

The legal issues before the court included the appropriate sentence to be imposed, the relevance of the offender’s mental health to the sentence, and the appropriate weight to give to various factors such as the assistance provided to law enforcement authorities and the impact on the victims. The court considered the submissions from both parties and the evidence presented, including expert evidence on the offender’s mental health. The court also took into account the victim impact statement and the totality of the circumstances, including the offender’s admissions and the brutal nature of the attack.

After considering all the evidence and submissions, the court determined that the appropriate sentence for the offender was imprisonment for life. The court found that while the offender’s mental health was a relevant factor, it did not warrant a significant discount from the sentence. The court considered the totality of the circumstances, including the brutal nature of the attack, the offender’s admissions, and the impact on the victims, in reaching its decision. The court also took into account the assistance provided by the offender to law enforcement authorities, which was considered to be a mitigating factor.

The final orders of the court were that the offender be sentenced to imprisonment for life, with a non-parole period to be determined by the parole board. The court also made orders for the offender to pay compensation to the victims and their families. The court emphasised the seriousness of the offences and the need for the sentence to reflect the gravity of the crimes committed.

Orders