R v Pridgeon - [2006] VSCA 250

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 268 of 2006

THE QUEEN
	v.
MICHAEL ALAN PRIDGEON

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JUDGES:	CALLAWAY, VINCENT and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2006
DATE OF JUDGMENT:	23 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 250	1^st Revision 29 November 2006

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Criminal law – Sentence – Six counts of indecent assault upon children under 16 – Offences committed in 1978 and 1991 – Total effective sentence of two years’ imprisonment with non-parole period of nine months – Applicant 71 years old – Multiple health problems – Whether a finding pertinent to the extent of risk of applicant re-offending was open – Whether judge bound to find that applicant posed a lesser risk of re-offending than was found in fact – Whether judge erred in finding that specific deterrence had some role to play in sentencing applicant – Sentencing discretion re-opened – Appeal allowed – Offender resentenced to a total effective sentence of 21 months’ imprisonment with the time not already served suspended for a period of two years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs M.M. Williams, S.C.	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr P.G. Priest, Q.C. with Mr K.G. McGowan	Campbell & Shaw

CALLAWAY, J.A.:

I invite Ashley, J.A. to deliver the first judgment.

ASHLEY, J.A.:

On 30 August 2006 a County Court judge sentenced Michael Pridgeon, on six counts of indecent assault upon children under the age of 16 years, to a total effective sentence of two years’ imprisonment with a non-parole period of nine months. Her Honour made consequential orders to which I need not refer. Now Mr Pridgeon seeks leave to appeal against sentence. The grounds of appeal, so far as they were pursued, are as follows:

“The sentencing judge erred in the following respects, in that she failed to :
1. Give sufficient weight to the pleas of guilty.
2.(a) Take into account sufficiently or at all the prosecution’s attitude to sentence; and in particular, that a sentence of imprisonment wholly suspended was open in the circumstances.
(b)Give any reasons for rejecting the prosecution submission that a sentence of imprisonment wholly suspended was open in the circumstances.

3.Take into account sufficiently or at all the cumulative effect of the applicant’s multiple health problems and the manner in which they will affect the applicant in the service of actual imprisonment to be undergone.
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5.Take into account sufficiently or at all the psychological evidence tendered by the applicant to the effect that he was not a paedophile and did not present a danger to the community.
6.Take into account sufficiently or at all that the applicant was not a proper vehicle for specific deterrence.”

The circumstances of the offences

The applicant was a school teacher between about 1953 and 1993. In 1978 he was a teacher at Coatesville Primary School. In the course of that calendar year, probably from about September onwards, he interfered with two girls who were…

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 Pridgeon

Details

AGLC: R v Pridgeon [2006] VSCA 250
Case: [2006] VSCA 250
Decision Date: 23 November 2006

CaseChat Overview and Summary

The appellant, Pridgeon, appealed against his sentence in the Supreme Court of South Australia. He had been found guilty of six counts of indecent assault upon children under 16 years of age, with the offences committed in 1978 and 1991. The primary judge imposed a total effective sentence of two years’ imprisonment with a non-parole period of nine months. Pridgeon, who was 71 years old at the time of sentencing, had multiple health problems. The appeal centred on the extent of the risk Pridgeon posed for re-offending, and whether the judge was correct in his findings and approach to sentencing.

The central legal issue was whether a finding pertinent to the extent of risk of the appellant re-offending was open to the primary judge, and if the judge was bound to find that Pridgeon posed a lesser risk of re-offending than was found in fact. The appeal also questioned whether the judge erred in finding that specific deterrence had some role to play in sentencing the appellant. The appellant argued that given his age and health issues, the risk of re-offending was minimal, and the judge should have considered this more heavily.

The court found that the primary judge erred in his approach to sentencing by not properly considering the risk of re-offending in light of Pridgeon’s age and health. The court determined that the judge was not bound to find that the appellant posed a lesser risk of re-offending than was found in fact, and that a finding pertinent to the extent of risk of re-offending was indeed open to the primary judge. The court held that the judge had erred in finding that specific deterrence had some role to play in sentencing Pridgeon. Consequently, the court reopened the sentencing discretion and resentenced Pridgeon to a total effective sentence of 21 months’ imprisonment, with the time not already served suspended for a period of two years.

The appeal was allowed, and the original sentence was set aside. The new sentence was to take effect from the date of the original sentence, and Pridgeon was to be released immediately if he had not already served the nine months non-parole period.

Orders