R v Pividor - [2002] VSCA 174

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 90 of 2001

THE QUEEN

SHANE ANTHONY PIVIDOR

AND

BRUCE ALAN DALE

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JUDGES:	WINNEKE, P., CHERNOV, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2002
DATE OF JUDGMENT:	1 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 174

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Criminal law - Sentencing - Armed robberies upon clubs where gaming permitted and a private residence - Discount given for co-operation with police and attendant risk to safety of offender - Whether sufficient in the circumstances - Fresh evidence that risk a reality in the case of one offender - Parity - Sentences not manifestly excessive - Reduction of minimum term since risk a reality.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant Pividor	Mr M.J. Croucher	Balot Reilly
For the Appellant Dale	Mr G.J.C. Silbert	A. Isaacs

WINNEKE, P.:

In my opinion Pividor's application should be dismissed and Dale's appeal should be allowed for the reasons given by O'Bryan, A.J.A.

CHERNOV, J.A.:

I agree for the reasons advanced by O'Bryan, A.J.A. that the application and the appeal should be disposed in the manner proposed by him.

O'BRYAN, A.J.A.:

These appeals are brought against sentences imposed in the County Court on 10 April 2001. Pividor, who is now aged 34, pleaded guilty to eight counts in a presentment and was sentenced to be imprisoned for nine years. A non-parole period of six years was fixed. He was granted leave by the Registrar to substitute the following four grounds of appeal for the grounds specified in his original notice of application for leave to appeal the sentence:

"1.The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
2.The learned sentencing judge erred in placing no weight upon the fact that the applicant suffered from Attention Deficit/Hyperacitvity Disorder - Combined Type.
3.The learned sentencing judge erred in failing to place sufficient weight upon the fact that the applicant had volunteered admissions in relation to counts 1 and 2 without which he would not have been prosecuted in respect of those counts.
4.The learned sentencing judge erred in failing to place sufficient weight upon the assistance the applicant had given to law enforcement authorities."

Pividor, to whom I shall refer as "the applicant", was refused leave to appeal pursuant to s.582 of the Crimes Act 1958 on 10 August 2001.

Dale, who is now aged 39, pleaded guilty to five counts in the same

presentment and was sentenced to be imprisoned for six years. A non-parole period of four years was fixed. He was granted leave by the Registrar to substitute the following four grounds of appeal for the grounds specified in his original notice of application for leave to appeal the sentence:
"1.The learned trial judge erred in that he did not give proper weight to the principles of parity between the sentences imposed on the co-offender Pividor and the applicant:
(a)for one armed…

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.

Continue reading R v Pividor

Details

AGLC: R v Pividor and Dale [2002] VSCA 174
Case: [2002] VSCA 174
Decision Date: 1 November 2002

CaseChat Overview and Summary

The case of R v Pividor involved the sentencing of offenders who had participated in armed robberies at gaming clubs and a private residence. The offenders were sentenced by the court, and subsequently sought to appeal the sentences. The primary legal issues before the court were whether the sentences were appropriate in light of the discount given for co-operation with the police, and whether the risk to the safety of the offenders was a sufficient mitigating factor. Additionally, the court considered whether the sentences were manifestly excessive, and if the discount for co-operation was sufficient given the fresh evidence that the risk was a reality in the case of one offender.

The court carefully considered the mitigating factors presented, including the discount for co-operation and the risk to the safety of the offenders. The court acknowledged that the discount for co-operation was a relevant consideration, but also recognised that the risk to the safety of the offenders was a significant mitigating factor. The court found that the sentences were not manifestly excessive, and that the discount for co-operation was sufficient in the circumstances. However, the court also noted that fresh evidence had emerged which demonstrated that the risk to the safety of one offender was a reality. The court considered the principle of parity, and found that the sentences should be reduced to reflect the reality of the risk to the safety of the offender.

The court ultimately found that the sentences were not manifestly excessive, and that the discount for co-operation was sufficient in the circumstances. However, the court reduced the minimum term for one offender in light of the fresh evidence demonstrating the reality of the risk to their safety. The court emphasised the importance of ensuring that sentences are proportionate and reflect the unique circumstances of each offender. The final orders of the court were that the sentences were affirmed, with a reduction of the minimum term for one offender.

Orders