Solicitors:
Director of Public Prosecutions
Newtons Law - Offender
File Number(s): 2007/13848
[2]
SENTENCE
VIDEO LINK COMMENCED AT 2.14PM
HIS HONOUR: The prisoner, Henry Alfred Anning, appears today for sentence in relation to 11 crimes for which he was found guilty by judgment of myself, sitting as a judge alone, on 18 December 2013.
Nine of the counts were counts as pleaded in the indictment and two of the counts for sentence today are counts available as what might be called statutory alternatives. Originally there were 14 counts in the indictment.
The background to the matter I will outline later when I turn to certain sentences imposed by Acting Judge McGuire by way of limiting terms after a special hearing that was concluded in July 2009.
The prisoner is for sentence in relation to two counts of what might shortly be called "buggery" contrary to s 79 Crimes Act 1900. Each of those counts carries a maximum penalty of 14 years imprisonment. There is no standard non-parole period for that offence or any of the offences for which the prisoner has been found guilty, having regard to the time at which the offences were committed.
The third count in the indictment for sentence is an offence contrary to s 81A Crimes Act 1900. This relates to a victim FG; the buggery counts relate to the victim NG. That offence carries a maximum penalty of two years imprisonment.
The fourth count for sentence is another allegation of buggery involving the victim KW and it is provided for by the same provisions relating to counts 1 and 2
Count 5 for sentence is an offence of attempted bestiality. I am informed by the Crown, in the material provided by it, that this offence contrary to s 80 Crimes Act 1900 at the relevant time carried a maximum penalty of five years imprisonment.
Count 6 is an act of gross indecency with a person under the age of 18 years. The victim in that matter is DC. This is an offence contrary to s 78Q(1) Crimes Act 1900; it carries a maximum penalty of two years imprisonment.
Counts 7, 9 and 10 in the indictment, but the seventh, eighth and ninth counts for sentence, are counts of homosexual intercourse with a person between the age of 10 and 18. The victim in this matter is again DC. This is an offence contrary to then s 78K Crimes Act 1900; it carries a maximum penalty in each instance of 10 years imprisonment.
Count 11 in the indictment, the tenth count for sentence, is an offence of attempting homosexual intercourse with a person between the age of 10 and 18. The victim in that matter RR is deceased. The relevant statutory provision I am informed by the Crown is s 78L Crimes Act 1900. I was informed by the Crown that that carries with it a maximum penalty of five years imprisonment.
Count 13 in the indictment, the eleventh count for sentence, is an offence contrary to s 78Q(1) Crimes Act 1900 of act of gross indecency with a person under the age of 18. The victim in that matter is GG. That offence carries a maximum penalty of two years imprisonment.
There are no other offences to be taken into account.
The range of dates concerning the particulars in the indictment is between 30 September 1975 to 31 December 1990.
The prisoner has been in custody as I understand it since 29 April 2009, and of course, time previously spent in custody will be taken into account as the law provides. The prisoner, it follows from what I have earlier said, was convicted of these matters, having pleaded not guilty to the charges in the indictment.
In the judgment I gave on 18 December 2013 between paras 6 and 15 I set out factual contextual matters to the various counts in the indictment and I do not propose to repeat those matters. The basic facts or particulars in relation to count 1 are set out in para 16 of that judgment. In respect of count 2 the relevant particulars and basic facts are set out in para 17 of the judgment. In respect of count 3 in the indictment the particulars are set out in para 18. In respect of count 4 the particulars are set out in para 19 of the judgment and in relation to counts 4 and 5 there are particulars in relation to that matter in para 22. In relation to count 6 the particulars and basic facts of the allegations are set out in para 24. In relation to counts 7 and 8, although the prisoner was found not guilty of count 8, the relevant details are set out in para 25.
The particulars and basic facts in relation to count 9 in the indictment are set out in para 26 of the findings on returning verdicts of guilty, and in relation to count 10 on the indictment, in para 27.
The particulars and facts in relation to count 11, in respect of which, as I have earlier pointed out, the prisoner was found guilty of the alternative count, are set out in para 28 of the judgment; and so far as they may be relevant to these proceedings, the particulars in relation to count 13 in the context of the allegations in counts 12 and 14 providing some contextual material are set out in paras 32-37.
The judgment set out a number of matters that were taken into account in determining the verdicts appropriate for each count. So far as specific consideration of the particular counts with which I am concerned now, the consideration of counts 1 and 2 are set out in paras 164 167. The consideration of count 3 is set out in paras 168 to 174. In relation to counts 4 and 5, specific consideration of those counts is set out at paras 176-179; and in relation to count 6, consideration of that count is set out in paras 180-192. With regard to consideration of count 11, the matters focusing on that particular count are set out at paras 193-195; and the general consideration of counts 12 to 14, conceding, of course, the fact that there are acquittals in relation to two of those counts, are set out in paras 196-199.
I point out for the purposes of the record there is an error in the word processing relating to the treatment of counts 7, 9 and 10, which I will need to attend to when I revise the judgment. But in the judgment in revised form I will give references to the consideration of the matters pertinent to those particular counts.
In respect of the victims of the crimes committed by the prisoner, I have several victim impact statements. I have a victim impact statement from DC, a victim impact statement from GG, and a victim impact statement from KW. I have read each of those victim impact statements. As was pointed out in passing, without really dwelling on it, in the course of the sentencing proceedings, there is some material within the victim impact statements that goes beyond their purpose.
The statutory requirement for consideration of victim impact statements is set out in s 28 and s 29 Criminal Procedure Act 1986. The Court is required to consider a victim impact statement made by a primary victim; the giving of a victim impact statement is discretionary, and certainly no inference can be drawn that the absence of a victim impact statement signifies that an offence has had little or no impact on a victim. I note from reading the remarks on sentence by Acting Judge McGuire that in fact one of the victims gave a victim impact statement for those proceedings but not for these proceedings. I draw no inference, obviously, adverse to that victim from that fact.
There has been a great deal of debate about the evidentiary purpose and value of victim impact statements discussed in a range of cases, including R v Burg [2004] NSWCCA 300, particularly at [48]-[49]; R v Wilson [2005] NSWCCA 219, particularly at [25]; and Basten J of the Court of Appeal in R v Thomas [2007] NSWCCA 269, particularly at [36]-[37].
I am mindful, in the context of a consideration of circumstances of aggravation and the like, of the requirement of those matters to be established beyond reasonable doubt. I am mindful of the comments that have been made about the character of victim impact statements in circumstances where the details within them are not tested. On the other hand, the courts have also considered the fact that opportunity to examine that material further is available to counsel for the accused.
The effects of sexual abuse upon victims is well recognised by the judiciary and has been for a considerable period of time; in fact, in my experience, far longer than necessarily may be conceded by recent judgments of the Court of Criminal Appeal. I note the observations of Spigelman CJ in DBW v R [2007] relating to the widespread understanding from the evidence available in courts of these matters, and particularly the most recent judgment that I can find discussing this matter, R v Gavel [2014] NSWCCA 56 at [110]. To summarise what is in that judgment; child sexual offences, as these offences essentially are, to varying degrees have profound and deleterious effects upon victims for many years, if not the whole of their lives. Sexual abuse of children will inevitably give rise to psychological damage. The absolute prohibition on sexual activity with particular categories of people at the time of the commission of particular offences is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity.
In the context of the statutory provisions and the authorities to which I have referred, I have taken into account what has been said in these victim impact statements, and I accept that in each of the victims' cases, including those victims who have not provided victim impact statements to the Court, there has been a profound effect upon them by the conduct of the prisoner, which I will characterise shortly.
There are statements of anger towards the victim and effects upon wider relationships and the like which could not be doubted. The analysis by KW is a very clear exposition, and a very reasoned exposition if I may say so, of relevant matters that have affected him particularly.
The evidence in the trial, the victim impact statements and the details of the criminal history are the primary material relied upon by the Crown by way of evidentiary material.
So far as the prisoner's criminal history is concerned, I firstly note that the prisoner is now 81 years of age. He was born in 1932. Of course, the offending with which I am concerned covers the period of, in reality, some time in either 1976 or early 1977, and of course the late 1980's.
The prisoner first appeared at court in 1964, when I would calculate him to be, on the information available to me, 32 years of age. He was convicted of stealing at what was then the Court of Petty Sessions, and sentenced to a term of imprisonment which was suspended.
He had some driving matters of no moment in 1967. However, on 3 November 1971 he appeared at the Newcastle Quarter Sessions, as the District Court's criminal jurisdiction was then known, and was sentenced to several terms of imprisonment, one term of five years imprisonment for an offence of breaking entering and stealing, one term of three years imprisonment for an offence of larceny, and another term of three years imprisonment which, as I understand the record, although it is not abundantly clear, was partially or wholly accumulative, with a non-parole period of two years, and 10 matters were taken into account on what was then described as a Schedule 9, what we would now call a Form 1.
The prisoner appealed to the Court of Criminal Appeal. That appeal was heard in December 1971. Application for leave to appeal was confirmed. The criminal history says the sentences were ordered to be served concurrently. Whether that meant ultimately he served a term of imprisonment that comprised five years imprisonment and a non-parole period of two years, I do not know.
As I have said, the prisoner has been in custody since April 2009. In regard to the circumstances of his custody I had a great deal of evidence before me last year, as other judges have had before them in the past - some of those judges have delivered judgments which I have read, of course - setting out the circumstances of the prisoner's medical issues, which have impacted upon the course of these proceedings since the prisoner was charged in 2002, according to the chronology provided by the Crown to me many months ago.
He is, as I would understand it, currently admitted to the 'Aged Care and Rehabilitation Unit' at the Long Bay Hospital, where he has been since 20 December 2009. The defence produced a report in this proceeding dated 7 March 2014, but of course I have to consider the other evidence available to me in relation to the matters covered in that report, particularly in respect of the at least two fitness to be tried hearings that I dealt with between April 2013 and October 2013.
To summarise the situation, the prisoner has type II diabetes, according to the most current report, and he is on medication in the form of insulin. He suffers from atrial fibrillation, referred to as AF, a heart rhythm problem caused by an irregular heartbeat, and has had this difficulty for a long time, but has no cardiac or neurological complications from that. He takes medication to decrease the risk of stroke. He has sporadic chest pain, on one occasion this occurred when he was appearing in this Court, or was supposed to appear in this Court. There is no evidence of any myocardial infarction.
He has extensive osteoarthritis. He has evidence of lung disease in the form of emphysema. He has substantial hearing impairment. He has gastro-oesophageal reflux disease which is controlled with medication. In custody he suffers from some form of depression that is treated by antidepressant medication. He has had prostate surgery with good result. He has some sinus problems, skin lesions. He was diagnosed with having vascular dementia almost 10 years ago, and this particular aspect of the matter was very significant in the various fitness to be tried proceedings that were litigated in front of a number of judges, including His Honour Judge McGuire. This has not undergone any significant deterioration according to the latest report in recent years. He is able to attend to his activities of daily living.
His general short term and long term memory, orientation, attention span and concentration remain "intact". Ability to plan, organise or make decisions can be impaired in vascular dementia, and he has demonstrated some deficits in these areas. I believe the earlier evidence is a little more extensive than what I have here, but I need not reiterate it. I will deal with its relevance to these proceedings shortly. He is described as being irritable on occasions and sometimes becomes irrational when dealing with correctional officers. At times he appears to be paranoid but he has no episodes of psychosis.
He is described in summary as a man with multiple medical problems; these are mostly chronic; none is severe enough for him to remain in a hospital setting, but they contribute to his decreased quality of life. His biggest issue, according to Dr Simm, clinical director of the Aged Care and Rehabilitation Unit at Long Bay Hospital is his degenerative spinal disease and generalised osteoarthritis which causes pain, poor mobility, increases the risk of falls. He would need particular assistance when released to the community.
In relation to the submissions that were made on the basis of the findings that I made and the other evidence on sentence, the Crown prepared written submissions. The Crown pointed to general sentencing principles, some of which I will deal with as I cite them from the written submissions, although I have had regard to all the submissions that have been put by the parties in writing and orally.
The Crown pointed out that the Court is to make clear what factors, if any, are to be taken into account with regard to a particular offence, and that will be self-evident from the way in which I deal with the issue of aggravating factors and the like and the varying intensity or relevance of those aggravating factors to particular charges in the indictment. I am required to have regard to the maximum penalties obviously that relate to the particular offending, and also approach the matter in the context of what has been long held authority in this State, reflected in judgments such as R v MJR [2002] NSWCCA 129 and the judgment (Magnuson v R ([2013] NSWCCA 50)) that was provided to me by the Crown.
In relation to the matter, the position is best summarised in the remarks of Button J, particularly at [84]-[88] of the judgment, by reference to the general principle that, as best can be determined by a court, the sentencing of an offender must take place by regard to the sentencing practices and patterns of the time of the offending and the sentencing of those offences roughly contemporaneous to that offending.
Of course there is said to be a difficulty with historical sexual offending by reason of the fact that sometimes a pattern may not emerge. In Magnuson, in the particular facts of that case, which are very different from the facts of this case in a range of ways which I need not go into although to some extent I thought the Crown relied upon it for some comparative sentencing purposes, the sentencing pattern was clearly identifiable and his Honour went through what he regarded as five considerations.
I have not been favoured particularly with statistics, but I have been favoured with a range of authorities in schedules prepared, for example, by the 'Public Defenders' Office' dealing with judgments primarily of the Court of Criminal Appeal reflecting upon appropriate sentences for offences of the type with which I am concerned over the period of time that the offender Mr Anning was committing the offences
In this regard I have particularly noted the decision of MJR; I have had regard to the decision of Moon [2000] NSWCCA 434 and a number of the decisions set out in the various schedules. The Crown's summary, which is identified as the "Public Defenders'" survey of sentences for homosexual intercourse with a male aged between 10 to 18 years and, secondly, indecent assault/buggery over a particular period of time, 1970-1980, contain quite a number of cases, which I have had the opportunity to consider. I do not propose to put those matters on the record as it is unnecessary.
With regard to the matters further raised by the learned Crown, clearly the Crown's submissions properly point to the need for general and personal deterrence for offences of the type with which I am concerned, and this is undoubtedly true in respect of the sentencing of offenders for sexual offences committed against young people.
I am required to take into account, of course, the damage done and the emotional harm caused to the victims, and of course the primacy given to general deterrence in this sentencing exercise. To this extent I note in passing, obviously since many of the relevant decisions covering the period with which I am concerned here pre-date 2001, the operation in clear terms of s 3A Crimes (Sentencing Procedure) Act and the varying purposes of sentencing therein contained, particularly attention to the purpose of general deterrence, personal deterrence, denunciation, adequate punishment and making the prisoner accountable for his conduct.
Of course I am required to promote the rehabilitation of the prisoner but it might be fairly said at his age and in the circumstances of the facts of this case, that matter as a purpose of sentencing is not of particular primacy.
It was said by the High Court in Veen (No 2) v R in 1988, of course, that the four purposes of sentencing identified by the majority in that case - there are now seven or eight including the four identified by the High Court many years ago - were sometimes guideposts pointing in different directions.
With regard to the question of sufficient material to have some understanding of the range of sentences imposed, this is a case where clearly, from the material presented from the Crown, from my own judicial and personal experience at the bar, and even by regard to the approach taken by his Honour the Acting Judge who dealt with the prisoner by way of special hearing, it is possible to detect an appropriate range of sentence for the offending with which I am concerned. The observations in Moon reflect what is apparent in every sentencing exercise, the need to have regard to the maximum penalty where the offence may fit by way of objective gravity and the considerations of mitigation that may arise.
With regard to the submissions of the Crown, the Crown pointed to the need for the prisoner to receive what it described as "condign punishment", including the need for the total sentence to reflect the totality of the criminality. It cited s 3A in the context of dealing with the various matters that are to be taken into account, including, of course, the matter I have already referred to, recognising the harm done to the victims of the crimes.
The Crown conceded by reason of the prisoner's age alone and perhaps his infirmity that the prisoner, whilst he preyed on the victims for sexual gratification, was in reality at this point unlikely to reoffend.
With regard to the issue of the age of the victims at the time of the offending, in respect of the offences that comprise counts 1, 2, 3, 4 and 5, there is no particular pleading in relation to the age, and each of the victims were, at the relevant time, fairly described as young and vulnerable in the range of victims that might be the subject of such offending. The age of the victims, however, in relation to subsequent charges involves a particular pleading within the count in the indictment. I just make that observation in the context of some submissions made by the Crown, and made also in reply by Mr Norrie for the accused, that when considering aggravating factors, the Court is not to have additional regard to any particular aggravating factor if it is an element of the offence.
The Crown puts particular submissions about the objective seriousness of the matter. It made the submission that the objective seriousness of the offences in a global sense was "extreme"; made submissions about what was said to be the breaches of trust involved in the offending. It made submissions about the need to consider the fact that there were multiple offences involving repeated acts committed over a number of years, and submitted that the prisoner was acting in 'loco parentis' to the complainants whilst they were on his property. In relation to that last matter, I do not conclude that the prisoner was in loco parentis to any of the victims, but he certainly exercised authority over the victims, to which I will make reference in a moment.
The Crown in its submissions said by reference to s 21A(2), in the context of the terms of the general provisions of the section, particularly s 21A(1), that there was emotional harm caused to the victims which was substantial, and this I have already dealt with as correct. It was submitted by the Crown that there was an abuse of trust, particularly in relation to NG, KW and FG, who at the time of the offending were particularly young and vulnerable, with their parents entrusting the prisoner to look after their children whilst visiting his property. I accept that submission.
In relation to s 21A(2)(m), the Crown made a submission that that particular aggravation was established in this matter. That particular subparagraph of the subsection refers to "the offence involved multiple victims or a series of criminal acts". As was pointed out by learned counsel for the accused, with no disrespect to the Crown Prosecutor, that submission by the Crown was misconceived. One need only turn to the decision of Fisher v R [2008] NSWCCA 129, where the Court dealt with the issue of multiple acts in the context of a consideration of circumstances of aggravation such as those pleaded by the Crown in its written submissions. That decision approved what the learned Chief Justice Spigelman had said in JCW [2000] NSWCCA 209, that in the proof of a course of conduct as occurs in this matter in relation to all of the victims, it was appropriate to take that into account only for purposes of rejecting any claim to mitigation and attendant reduction of an otherwise appropriate sentence, not as a circumstance of aggravation.
It should also be pointed out, of course, that the very terms of s 21A(2)(m) are concerned with the particular offence the subject of a charge requiring sentence, and in respect of the matters in respect of which the prisoner has been found guilty, the particular matters relied upon by the Crown are identified as specific offences, not a series of crimes committed in order to establish the particular count in the indictment.
The Crown Prosecutor also submitted that there were no mitigating factors in this matter.
The Crown, in its conclusion, said this:
"The sentence imposed must strongly reflect denunciation, punishment, protection of the community, albeit to a lesser degree than usual, as well as specific and general deterrence."
In general terms one agrees with that, except insofar as the protection of the community, as the Crown concedes is, in reality, not a significant or substantial issue now at the age that the prisoner presents.
The Crown also submitted that the offences occurred in circumstances that "each sentence must be accumulative and non-concurrent"; however, taking into account some principles said to arise in Magnuson. I have noted what the learned Button J said in Magnuson, particularly at paras 143 and 145, to which the Crown referred. The appropriate approach to sentencing when dealing with multiple offences is set out essentially in the majority judgment of Pearce v R (1998) 194 CLR 610, particularly at [45].
That principle is to be seen in light of decisions of the High Court and decisions following the High Court in this jurisdiction, particularly decisions such as Mill v The Queen ((1988) 166 CLR 59), relating to the totality of sentencing.
The Court is required, in the context of Pearce principles, to fix an appropriate sentence for each offence and then, having fixed an appropriate sentence for each offence, turn to the issue of totality of criminality by appropriate concurrency and accumulation to give ultimate effect by the sentence imposed by that method. The method of accumulating each sentence upon one another would have the effect of sentences reportedly imposed in Texas one might have thought.
The defence did not provide any written submissions. The oral submissions of the Crown were short, merely adopting the written submissions provided.
Mr Norrie did take issue with the submission of the Crown relevant to s 21A(2)(m), and particularly referred to Fisher and the decision of Tadrosse [2005] NSWCCA 145 particularly at [28] and [29] to which I have had regard.
He noted the requirement of the Court to have regard to the sentencing practices of the time if able to be identified as cited in Magnuson and other decisions to which Magnuson refers.
It was conceded that the offences were serious offences but not the most extreme of offences of their type. It noted the age of the victims where that was reflected in the pleadings or the particulars, and where ages were specifically pleaded, as was properly pointed out, the relevant age of the victim was not an independent aggravating factor under s 21A(2).
It was conceded that the prisoner's relationship with the victims involved a breach of trust and that the prisoner exercised authority over the victims, but it was submitted that, having regard to each of the individual counts that were to be considered by relevance to the particular complainant therein particularised, the breach of trust was not the grossest abuse of that trust.
It was pointed out by Mr Norrie that his client had a criminal history that showed no prior convictions for sexual assault. That is correct, but it must be pointed out, as I pointed out to him in the course of oral submission, that from the time that he committed the first offence against NG onwards, the evidence revealed that he was an unconvicted abuser of young boys, and he remained undetected in this regard until arrested earlier this century. The fact that he was undetected, or unreported, in fact gave him the opportunity to commit further crimes against victims over a period of time. Ultimately, this was accepted by counsel for the accused to be the reality of the situation.
The facts of the matter were that if his criminal history in 1976 at the time of the first offending was relevant, it was relevant to establish that he was not entitled to any particular leniency. As each crime was committed against each victim, the prisoner's reliance upon what weight, if any, could be given to the fact he had no prior convictions for sexual assault diminished, and diminished very rapidly, for the reason I just outlined.
It was pointed out, correctly, that because of his health and age his circumstances of custody would be harsher than otherwise would be the case for the ordinary prisoner in the general gaol population.'
As to the issue of whether his convictions would create particular hardship, some hearsay material was before the Court. But, in reality, there is no evidence that the circumstances of his offending lead to an increased hardship in conditions of custody. It is, as I say, primarily his age and his health difficulties that exacerbate his circumstances and create some hardships that would otherwise be not experienced by younger, fitter members of the general gaol population. I have taken that into account.
I have already referred to the fact that I have taken into account all the medical evidence that has been made available to me in assessing the appropriate sentence in this matter. Ultimately the health of the prisoner is more relevant to the fixing of a non-parole period than the fixing of appropriate sentences. There is absolutely nothing in the evidence available to the Court to suggest that his medical condition, or any aspect of his medical condition, has any causal relationship to the offending for which he has been found guilty.
Reliance was made in the submissions of learned counsel for the prisoner to the delay in the finalisation of this matter. I have already referred to the fact that I have had regard to the extensive chronology prepared by the Crown. There was reference to the delay between the charging of the prisoner, which I am informed from the chronology was 21 August 2002, to the matter finally being dealt with at least by way of special hearing by Acting Judge McGuire in 2009.
The picture, at least from this summary in the chronology, is a very complex one. I am not in a position to ascribe "fault" only to the prisoner in relation to the delay which is quite unacceptable. I have already made comments about delay in this matter. Not just delay in the matter coming before me last April, but delays in the matter since I was given responsibility for it. As I have earlier said, I feel in fact I have no responsibility for any delay: I have done my very best to keep the matter moving forward.
Having said that, without going into the detail of the chronology, I note the various applications that led to adjournments, including the need for examination to be had of the prisoner's fitness to be tried; in one sense the delays caused by that, leading up to the fact that the prisoner was found unfit to be tried, are partially explicable by the fact that he was so found by the Court and the special hearing was conducted in 2009.
I note some other complications that arose in the conduct of the matter, although they certainly do not excuse the delay. One of the complications was the fact that the victim NG, for example, and I do not criticise the victim of course, apparently came forward some years after the initial charging of the prisoner. There were attendant delays in determining which matters should be tried together and the like in that context. There was also the fact that the Director determined that there be no further proceedings against the prisoner in 2006, although that decision was quickly reversed.
I am very mindful of the frustration the victims have felt. I have already made some comment about some remarks that were made to a journalist about this matter. It could not be said that I have been unsympathetic to that. The truth of the matter is, as I have made clear on a number of occasions, that I have tried very hard to ensure the matter did proceed to finality as expeditiously as can reasonably be expected, at least on my part.
In any event, there has been considerable delay up until the time the prisoner came into custody and now there has been the delay between the time he came into custody and the final resolution of the matter at least in this jurisdiction by the Court in December last year. As to whether the prisoner alone was trying to delay the inevitable throughout the entirety of the time is not entirely clear from the material available to me, and of course various judges have acceded to particular applications over the period of time reflected in the chronology by the various parties.
It must be remembered, of course, that courts are not prosecuting authorities, nor defending authorities for that matter, and they are very much captive to the conduct of the parties in a range of ways, particularly so far as being fully informed about matters relevant to applications for adjournment and the like.
The truth of the matter is, as I would understand it, however, that the prisoner finally came to court and appears in court today in not as robust health as would have been the case had the matters been able to be dealt with expeditiously back at the beginning of the century. There has been some delay over which the prisoner has had no control.
For three years the prisoner was in fact serving a limited term, found unfit to be tried, before another judge in 2012 determined that the prisoner was in fact fit to be tried.
Learned counsel for the prisoner referred the Court to the decision of Fahda [1999] NSWCCA 267 particularly paras [16], [17]. That decision discussed consideration of the principles set out in Todd ((1982) 2 NSWLR 517 - (at 519)), a New South Wales Court of Criminal Appeal decision, and the decision of Mill to which I earlier made reference, where there had been delay by reason of an offender being required to serve sentences interstate for offending which was contemporaneous with the offending required to be considered at bar.
Particularly at para [19] the Court in Fahda considered, in the judgment of Simpson J, the relevance of Todd principles in circumstances other than those particularly pertinent to the Todd and Mill cases. Her Honour referred to authorities such as that from Grove J expressing the view that a prisoner who came to be sentenced a long time after the commission of the offence could not claim the benefit of delay as a matter of special mitigation where the delay was attributable to his own choice to contest the Crown case. His Honour in that matter had considered that the prisoner was liable to be sentenced from the date of the offence and delays brought about by his denial of guilt ought not sound in mitigation. It was noted that the delay in that matter was caused in part by the fact that a conviction following an earlier trial was quashed in that Court and a new trial ordered.
Sheller J, in the judgment of Bragias (1997) 92 A Crim R 330, expressed the opinion that the delay was a consideration appropriate to be taken into account on sentencing and adherence to a plea of not guilty subsequently shown to have been unjustified ought not deprive the applicant of any benefit he might otherwise be entitled to arising from a lengthy lapse of time between the offence and sentencing.
Her Honour Simpson J noted:
"As the third member of the Court in that case I expressed no view on the difference of opinion that emerged. I remain unprepared to endorse a universal proposition as to the effect on the Todd principles of delay resulting from adherence to the right to enter a plea of not guilty and to put the Crown to proof. I would, however, express a preference for the view that, generally speaking, the exercise of such a right should not operate to exclude the Todd principles. It must be recognised that delays attendant upon a plea of not guilty lie essentially at the door of the overburdened criminal justice system which is inadequately resourced to afford speedy resolution of contested charges. It is, of course, true, as Grove J said, that an offender is liable to sentence from the date of the offence, but this is no answer to the recognition given by Street CJ (in Todd) to the additional pressure that results from delays in the resolution of these matters. In the circumstances applicable to this case (of Fahda) the observations of Grove J in Bragias do not persuade me that the Todd principles should not be applied. In my opinion the delay was a relevant consideration, and one which, subject to the matter I next mention, was available to be taken into account in the applicant's favour."
The delay here is something I take into account to some extent to the prisoner's favour, but it does not sound, in my view, in 'special mitigation' or substantial mitigation, particularly in the circumstance where, of course, the earlier period of custody before today primarily arose out of the findings of the special hearing. I accept that the prisoner has been left in a state of uncertainty, but so have the victims, although they are not for sentence by me.
One matter that needs to be pointed out, that was discussed in Todd, and was of particular pertinence in Todd, was that in this matter, and I do not criticise the prisoner, there is just no evidence of the progress of the rehabilitation as sometimes can occur in delay in sentencing. It is to be remembered in Todd's case that when he came back to New South Wales for sentence he had been in interstate custody and had made considerable progress in his rehabilitation before he came back to this State. He thus came for sentence as a different person than the offender had been at the time of the offending.
This prisoner is a different person physically, of course. He was, a person, notwithstanding some complaints of physical indisposition at the time of the alleged offending, who was robust and obviously commanded considerable physical presence in the presence of the victims, but he comes to this Court now, unlike Mr Todd, entirely unrepentant. Of course he was entitled to deny his guilt, and of course our system of justice does not penalise offenders for denying their guilt, even in the face of overwhelming evidence. Ultimately the principles laid down by the superior courts are quite clear, that whilst an offender cannot be penalised for defending a matter, he obviously does get no benefit for any contrition.
After the submissions were completed, I raised with counsel the relevance in this matter, in light of the orders made by Acting Judge McGuire, of what is described as "the ceiling principle". The ceiling principle as it is described in some authorities, and also discussed in the sentencing bench book, is an aspect of what might be called double jeopardy principles, the general recognition within the criminal law, subject to particular exceptions including statutory exceptions, that because the individual is prosecuted by the State, he or she should not be subject to "double jeopardy" in his or her treatment by the conduct of the prosecuting authority.
There is a general principle relating to the sentencing of an offender after retrial that he or she should not ordinarily receive a longer sentence or a longer non-parole period than that imposed after the first trial, unless there are particular significant circumstances to be taken into account. This was held in the New South Wales decision of Gilmour (1979) 1 A Crim R 419 at 419, and was essentially reaffirmed in the decision referred to by the learned Crown Prosecutor of RHMcL v The Queen (2000) 203 CLR 472 at [72].
It is clear, however, as the Crown pointed out in its helpful written submissions, that this principle is not intended to fetter the independent discretion of a sentencing judge, and there are a number of authorities, including the decision of Merritt [2000] NSWCCA 365 at [29] to that effect.
Some of the matters that may be considered in the context where the ceiling principle has no direct relevance, is where the original sentence was "manifestly inadequate", or to use words more appropriate at first instance, "remarkably lenient". But the circumstances in which the sentence may be increased are rare.
The Crown in its written submissions, by reference to the High Court decision to which I referred, and other judgments, including the decision of Tarrant v R [2007] NSWCCA 124, submitted that so far as the general principles are concerned, the restraint of the "ceiling principle" was subject to a number of exceptions.
It also, however, referred me to a decision with which I was not familiar, R v Wilson (2005) 153 A Crim R 257. It was submitted that that decision specifically addressed the concerns I raised for consideration by the parties of the relevance of the penalties imposed by his Honour Acting Judge McGuire at the special hearing. I particularly note what the Court said about the matter at [14]-[17].
I found the decision of Wilson actually quite interesting, because in one sense it is not actually on all fours with the situation with which I am now faced in a practical sense. In Wilson, the prisoner had been found guilty after a special hearing, after which the learned then Chief Judge at Common Law, Wood J, as I would understand it - he may have been not the Chief Judge but certainly a Judge of the Supreme Court - fixed a limiting term of 18 years. The sentencing judge at a trial after the prisoner had been found fit to be tried determined that she would not be bound by that limiting term and fixed a sentence of 12 years imprisonment with a relevant non-parole period. The appeal in Wilson was an appeal by the Crown against Simpson J's judgment. The Court in re-sentencing the prisoner sentenced him to 15 years imprisonment with a non-parole period of 11 years.
Noting what their Honours said about the role of the limiting term by reference to the imposition of a term of imprisonment imposed after trial and sentence, it is to be noted that the consequence in Wilson was ultimately for the offender to receive a lesser sentence than that imposed after a special hearing, rather than a greater sentence.
I am mindful of the terms of s 23A Mental Health (Forensic Provisions) Act 1990, that a limiting term is "the best estimate of the sentence the Court considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence and the person found guilty of that offence". It is to be borne in mind, of course, that a limiting term is a "sentence" for the purposes of the Criminal Appeal Act (see s 2 of that Act).
Whilst a person serving a limiting term is a forensic patient under the Act, when the limiting term expires and where the term is less than life imprisonment, that person ceases to be a forensic patient and must be discharged unless that person is to be classified as an involuntary patient under other provisions of the same Act (see s 3, 42, 52, 53 and 54). Prior to the expiry of a limiting term, a person may be released from detention by the Mental Health Review Tribunal, subject to six monthly review.
In the decision of Mailes v R (2004) 62 NSWLR 181 at [32] it was observed that the purpose of a limiting term is not to punish the person who has been convicted of any crime but to ensure that he or she is not detained longer than the 'maximum time the person could have been detained if convicted following a proper trial'. Furthermore in Mailes, it was held that the head sentence is not affected by the absence of a power to fix a non parole period, which is the case with a limiting term, and which happened here. There was no logical reason for reducing the head sentence because there was no provision for a non-parole period it was held in Mailes (at [43]). Of course, in that decision at [44] the Court noted the differing features and objectives between regular sentences and limiting terms.
In any event, I note the submission of the Crown and I accept the principles that are set out in Wilson. But I also point to what ultimately, by reference to this case, will be the reverse decision, because ultimately the penalties to be imposed upon the prisoner will be greater than those imposed by his Honour Acting Judge McGuire.
So far as the mental condition of the prisoner is concerned, I have already pointed out the evidence shows no causal connection between his mental condition and the offending. Thus the principles that are summarised in decisions of the Court of Criminal Appeal such as Hemsley, from 2004, and De La Rosa, a Commonwealth sentencing matter from 2010, do not directly apply.
No issue arises relating to the diminution that might be given to general deterrence, or even increasing the weight to be given to specific deterrence because of some causal relationship between the mental condition of the offender and the offending.
However, the condition of the offender reflected in the medical evidence such as led to him being found unfit to be tried, as was discussed in the fitness to be tried matters before me most pertinently, are to be considered in the context of considering his risk of reoffending and the protection of the community, which are not substantial issues now in this case. Those matters are also relevant to the circumstances of his custody, one matter identified in the De La Rosa and Hemsley summaries of relevant principle. I have taken that into account.
Turning now back to the objective facts of the matter, the evidence reveals the prisoner sexually exploited the victims over an extended period of time of over 13 years. His exploitation of each of the victims was systematic and determined. The prisoner in each case gained the trust of the victims by grooming them with either promises of paid work, access to motor vehicles or motor cycles which they otherwise would not have access to, allowing them to drive motor vehicles and ride motor vehicles, either legally or illegally, it does not matter, exciting them with the offer of activities to which they were attracted, providing them with rewards in the character of outings and other incentives in various ways as I detailed in the evidence in the judgment to maintain the relationship.
It is correct to point out the prisoner used his superior position to the victims to exploit them sexually, although there has to be some discerning of some differences between the circumstances of each of the victims.
The relationships of the prisoner with the victims KW, DC, and to a lesser extent GG, were particularly complex ones, as the facts reveal, and the relationship particularly between KW and DC developed in circumstances where in fact a sexual relationship existed between them beyond the period covered by the pleadings in the charge, in circumstances where they had opportunity to walk away. But they had been exploited to the extent where they found it difficult to make that decision.
In every case the exploitation of the victims commenced at a young age, particularly the exploitation of NG, FG, KW and GG.
The evidence of the complainants, making proper allowance for the impact on their lives individually, shows that the conduct of the prisoner involved in each case multiple events, demonstrating that the offences for which the prisoner is to be sentenced are not uncharacteristic or isolated matters.
There are features of each of the offences that distinguish the offending in each instance, in my view of the evidence, from the global characterisation made by the Crown. Obviously, there was exploitation of the victims and their vulnerability to varying degrees and a taking advantage of them. The vulnerability of the victims NG, FG and KW, particularly KW in the early period, as with DC and GG, is self-evident. However, the evidence revealed, because of what could be basically described as the "cleverness" or the insidiousness of the prisoner, that the offences were not accompanied by direct threats of intimidation, violence or real physical injury, other, of course, than the pain suffered by the perpetration of the offending, particularly by penetration. There were no real threats of retribution by the prisoner if exposed.
In the context of the reality of the relationship of the prisoner with his victims there was no special relationship between the prisoner and the victims by reason of kinship or because the victims were placed by authorities under his care or placed under his supervision. There is no suggestion of the prisoner keeping any of the victims captive or in any way holding them against their will. They were free, and had the opportunity, to "walk away".
Of course, many of the offences were committed against victims that were dependent upon him at the relevant time for transportation, food and/or shelter, particularly, as I say, NG, FG, to some extent DC and GG on occasions. He was, in most instances, at the time of the commission of the offences, in a position of authority vis-à-vis the victims.
The victims came under the sphere of influence of the prisoner in a range of differing circumstances. It is quite clear that the parents of NG and HG entrusted their children to be looked after by the prisoner when he took them on outings to the speedway and brought them back to his place at Morisset for them to be ultimately sexually assaulted. KW lived nearby, and his family lived relatively nearby at all relevant times, which made him less "dependent" on the care of the prisoner when he stayed there. DC also lived not too far away. I do not mean any disrespect to DC, but it is clear from the evidence that his opportunity to come under the sphere of influence of the prisoner occurred in circumstances where he seemed to have little parental direction. As I have said earlier, however, it could not be said in any real way that the prisoner was in 'loco parentis' to any of the victims.
In relation to FG and NG, their families lived a considerable distance away from Morisset when they were placed in the care of the prisoner.
There was also in the commission of the offences to varying degrees breaches of trust reposited in the prisoner, particularly by the parents of NG and FG, as well as KW to some extent particularly in the early period of time.
I bear in mind, of course, the evidence, which I accept, from KW that the prisoner had specifically ingratiated himself with KW's parents in a way that did not appear as apparent in relation to the other victims, having travelled to New Zealand with the family.
The special relationship it seems that the prisoner developed with KW's parents made it very difficult, in my view, for him to sever the relationship. I accept that all of the victims, whether it be by emotional blackmail or financial or other material dependence on the prisoner, particularly KW, DC and GG, had considerable difficulty severing their relationship with the prisoner, notwithstanding the fact that they understood the corrupting influence he was upon them.
Of course, it goes without saying that, however one categorises it, having regard to the objective features of the case that I have summarised, each of the offences were serious matters. This is self-evident, not only by the maximum penalties, bearing in mind similar offending now would require, if conducted in the current period, consideration of much greater maximum penalties, but also the character of the offending.
No issue of consent is relevant. But, of course, it should be borne in mind in relation particularly to counts 1 to 5 that consent is not a relevant issue. But even in circumstances where the victims had started to advance in age, there was clearly a taking of advantage of them. The respective offences involved significant exploitation of the victims, and particularly in the early stages of the relationship relating to KW, GG and DC.
So far as RR is concerned, he has been deceased for a number of years. He came within the prisoner's sphere of influence through his friendship with other victims. But the extent of his dependence upon the prisoner is not immediately clear from the evidence.
Ultimately, in relation to s 21A(2) Crimes (Sentencing Procedure) Act, noting what I have said earlier about the Crown's submissions, it might be said that, in relation to RR, that particular offence as pleaded was committed in the presence of a child under the age of 18 years, having regard to the facts I identified.
I have already noted the uniform relevance of the emotional harm to each of the victims as a relevant aggravating factor, and I have already noted the abuse of trust or authority in relation to each of the victims, the intensity of that varying as with the vulnerability of the victims as an aggravating factor, particularly NG, HG, KW in the early years of the prisoner's offending, as well as the early years of the prisoner's offending towards DC.
With regard to mitigating factors that arise under s 21A(3), the issue of planning is a matter I have considered, and which nobody has particularly addressed. It is obviously clear that the prisoner schemed to get access to the victims. I have not found that as an aggravating factor, nor was it urged upon me, but I cannot find it as a mitigating factor that the offence was not part of planned activity. The matter is in balance rather than capable of being established on balance in the prisoner's favour. I obviously could not find that the prisoner was of good character. I am prepared to conclude, in light of his age, that he is unlikely to reoffend. I cannot, however, conclude that he has good prospects of rehabilitation. Obviously there is no remorse or contrition displayed by the prisoner at any stage in relation to the matter. Ultimately, the subjective case conducted on behalf of the prisoner is largely concerned with the medical evidence and the issue of delay, which I have taken into account but which is a relatively minor matter in the scheme of things.
It is, of course, not the job of judges to be personally abusive. However, the truth is the prisoner was a hypocrite. He gave the persona of responsibility towards people which led to him having the opportunity to exploit people for his own sexual purposes. This was reflected in one of the newspaper articles that I was shown during the course of the trial. That public persona, however, was a complete charade, as the evidence of the victims made clear in the sentencing process.
The sentencing of the prisoner is complicated, I accept that, and it is detailed. I apologise to everyone with an interest in this matter who is here now for taking so long to go through all the relevant matters.
I want to point out some other matters though that are relevant. I have had regard to the sentences imposed by his Honour Acting Judge McGuire, if only to understand at the very least the circumstances in which the prisoner is currently in custody. It should be said of his Honour Acting Judge McGuire that at the time that he sentenced this prisoner, he was a very, very experienced judge. He had been a judge of this Court from 1980, thus in 2009 had 29 years of judicial experience.
I am very mindful, in light of what Button J said about the relevance of judicial experience in sentencing. This is not a matter just confined to the wisdom of judges of the Court of Criminal Appeal. His Honour the Acting Judge brought to the sentencing of the prisoner, in the context of course, of the relevant legislative provisions relating to limiting terms, a great deal of knowledge from the period of time over which he was sitting in this Court sentencing many offenders for offences of this type, although in his judgment he did not specifically refer to that aspect.
I also point out, of course, not that this is a matter of any importance, but his Honour, as a rule, was regarded as not a lenient sentencer. I think that is self evident, and he would have admitted it himself privately and publicly.
Ultimately, as I understand the structure of the sentences that he imposed, he imposed a limiting term that would expire in October 2017, bearing in mind he imposed sentences that were partially accumulative, partially concurrent, and some entirely concurrent one with the other.
In that regard the ultimate effect of the sentences he imposed was a limiting term of slightly less than eight years imprisonment.
I have borne in mind, so far as any sentences imposed by Acting Judge McGuire have any relevance in this sentencing exercise, that I acquitted the accused, unbeknownst to me, because I was not particularly paying any attention to Acting Judge McGuire's sentencing regime (it was totally irrelevant really up until now) in relation to one count which actually extended the period the prisoner was to be in custody to a date in October 2017.
I sat down in good conscience, having regard to the comparative cases, my own experience, the objective facts and the subjective facts, to construct the appropriate sentences and form my own independent view as to what the sentences would be. This had the consequence that in some instances I have increased the sentences imposed by way of limiting term by his Honour; I have also, to some extent, adjusted, or by result, changed the character of the concurrency and accumulation that was fixed by his Honour.
The ultimate decision I have reached in the context of all relevant matters taken into account is that I should impose a total sentence of 12 years imprisonment with a non-parole period of eight and a half years.
It transpired, I can say with all honesty, that when I finally determined what I regarded as the appropriate sentences, that the effective non-parole period expires at the expiration, by coincidence as it turned out, of the limiting term fixed by the learned Acting Judge who dealt with the prisoner when he was a special patient.
Thus the sentences I impose are as follows.
Firstly, in relation to count 1 in the indictment, the prisoner is convicted. He is sentenced to a term of three years imprisonment to date from 29 April 2009. On my calculation that sentence will expire on 28 April 2012.
In relation to count 2, the prisoner is convicted. He is sentenced to five years imprisonment to date from 29 April 2009. That sentence will expire on 28 April 2014.
In each case I decline to fix a non-parole period, having regard to the totality of sentences imposed.
In relation to count 3, concerning FG, with a maximum penalty of two years, I sentence him to 18 months imprisonment. That sentence will date from 29 April 2009, and on my calculation, expire on 28 October 2010.
In relation to count 4, relating to KW, I convict the prisoner, as I do for all counts, and impose a sentence of five years imprisonment. That will date from 29 April 2012 and expire on 28 April 2017.
In relation to count 5, the attempt bestiality charge, the prisoner is convicted. He is sentenced to three years imprisonment. That likewise will date from 29 April 2012 and will expire on 28 April 2015.
In relation to count 6, I sentence the prisoner to 18 months imprisonment on conviction. That sentence will date from 29 April 2012 and expire on 28 October 2013.
In relation to count 7, concerning DC, the maximum penalty being 10 years - his Honour, I point out, as with some of the other sentences, imposed a lower limiting term - I impose a sentence of three years imprisonment. That sentence will date from 29 April 2015. In respect of that sentence I fix a non parole period of two years and six months which will expire on 28 October 2017.
In fixing a non-parole period for that matter, I fix it by regard to the need by reason primarily of special circumstances, but also by reason of the circumstances of the custody of the prisoner and the need for a slightly extended period for him to adjust to community living with the assistance of the Probation and Parole Service under a finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act.
In relation to count 9, I impose a sentence of five years imprisonment. That is to date from 29 April 2016, but in that matter I fix a non-parole period of 18 months, one year six months, to date from 29 April 2016 to expire on 28 October 2017.
In relation to count 10, again involving DC, I sentence the prisoner to a term of imprisonment of five years to date from 29 April 2016, and in respect of that matter I fix a non-parole period of one year six months to date from that date, expiring on 28 October 2017. I note in relation to count 9 and 10, his Honour fixed limiting terms of two years six months.
In relation to count 11, the offence involving RR, the offender is convicted. He is sentenced to a term of imprisonment of three years to date from 29 April 2015. In relation to that matter I fix a non-parole period of two years six months, to expire on 28 October 2017.
In relation to the offence involving GG, count 13, carrying a maximum penalty of two years imprisonment, I impose a term of imprisonment of 18 months. That will date from 29 April 2016 and expire on 28 October 2017. In respect of that offence I do not fix a non-parole period because it is concurrent with the non-parole periods I have fixed in relation to the offences committed against DC.
I have not on all occasions pointed to what penalties were imposed by the learned Acting Judge after sentencing in respect of the special hearing matters. But as I said earlier, by reference to what he did, as a fact, not as a relevant consideration, a number of the sentences I have imposed are greater than that imposed by his Honour, forming my own view of the matter, having regard to all the matters I am required to take into account.
Thus, the effective sentence imposed upon the prisoner is one of 12 years with a non-parole period of eight years six months. The effective non parole period will expire on 28 October 2017. The parole authority will have the responsibility of determining whether the prisoner should be released to the community on that date.
Mr Anning, the total sentence I have imposed upon you is 12 years imprisonment with a non-parole period of eight years six months. That will expire, as I have fixed it, on 28 October, that is the effective non-parole period, 2017.
You will not get a chance to speak to your counsel today; I cannot make arrangements for you to speak to him privately, I am afraid, but I am sure that counsel will have an opportunity to speak to you about the matter in the short term.
OFFENDER: Your Honour, can I just say that before you went away before Christmas, November, I was promised you would be back earlier, and I've not seen nobody till now. And the other thing was, I was to get the transcript of the last hearing, and I broke in, and I apologise, about you not getting the evidence. You've been fed - I mean, they're creating what you have to lie about. In all honesty, I know what you're doing was, you're being inveigled by someone else. Now, the thing is, I don't know what my team is going to do. I've listened carefully, not that I can hear things really okay. I'm not guilty. That will have its consequences later. But the words weren't kept, there was ..(not transcribable).. this has been the trouble all along, I can't get people to keep their word, and inform me. I've been assaulted, I've been everything, and I had no-one I could go to--
HIS HONOUR: Well, Mr Anning, most of the matters you have raised with me are irrelevant to me at this point.
In relation to the matter, in terms of the delay, as I pointed out, in December, not as a matter of compassion but as a matter of courtesy, I have already indicated when the matter was before me in March that I could not sentence you before now for these two reasons. When the matter came before me in March, and I will get the date in a moment, because I believe it was 14 March, I was due to go to Orange about a week or two later to sit for three weeks, and then I was out of the jurisdiction for five weeks and I only resumed back at work last Monday week, and I requested in the time that I was at Orange that the parties provide me if needs be with some written submissions to address an issue that had not been addressed, at least an issue that I needed assistance with, and as it transpired, the submissions were received, there was some delay, but I make no criticism of that, it did not affect the determination of the matter. The truth of the matter was that I have tried to deal with the matter by way of sentence at the first reasonable opportunity available to me, in the context of having to do other work and not sitting in Sydney for over two months. So that is the reason for that delay.
OFFENDER: There wasn't the recognition of the medical stuff that you - you got none. You mentioned it plenty of times, insufficient evidence. Right through the whole eight years, there's been a cry, I've not got enough evidence. Now the thing is, that girdled the whole thing about my - I listened to the medical and what I've read from what statements I have, and it's totally at odds, it's totally at odds to what you're saying ..(not transcribable).. what you said, you're not getting information.
HIS HONOUR: Right, thank you. Thank you, Mr Anning. I understand what you are saying, but there is nothing more that I can say to you. I will invite your counsel to confer with you, that is your right, and those matters can be taken care of. If there are matters I have not taken into account that I am required to take into account, that is a matter for the parties to address appropriately. That is, at this late stage, beyond my control. Thank you.
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Decision last updated: 23 October 2015