Director of Public Prosecutions v Anderson (a pseudonym)

[2014] VCC 1167

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

Simon Anderson (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 July 2014
CASE MAY BE CITED AS:	DPP v Anderson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2014] VCC 1167

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Mr P. Smallwood

HER HONOUR: 

1Simon Anderson[1], you have pleaded guilty before me to one charge of incest and two charges of indecent act with a child under 16.  The facts underlying your offending are as follows.  In relation to Charge 1, your victim was your daughter, Amelia Anderson[2], who was born in 1995 and at the time of this offending was eight years old.  At that time in July 2003, you and your family had moved to a house in Ferntree Gully.  On an occasion between 2 September 2003 and 6 August 2004, Amelia pretended to be sick, as she was being bullied at school.  You at this time had the position as carer while your wife worked.  Amelia's mother was away at the time and you were looking after the children. 

[1] A pseudonym

[2] A pseudonym

2You and Amelia were watching television on the couch in the lounge room and you had your arm around her.  You suddenly kissed her and said to her, "I want a proper kiss."  You then kissed Amelia, this time inserting your tongue in her mouth, and pulled down your pants.  Amelia's pants were also removed.  You then inserted your penis into her vagina, causing her pain, and continued to penetrate her vagina for some time whilst she cried.  Amelia believed that you ejaculated on the couch, then you stood up and told her to have a shower and not to tell anyone what had happened.  Amelia remembered that while showering there was blood running from her vagina.  These acts underlie Charge 1 on the indictment, incest. 

3Charges 2 and 3 relate to two of your other daughters, Grace[3] and Fiona[4].  Between 1 September 2004 and 30 November of that year, when Grace was 13, she had a sore back and asked you to fix it, which you had done before.  You were drunk at the time and asked her to put her hands on her head, which she did.  She expected you to lift her up by the arms to crack her back, but you moved behind her, reached around and squeezed her breasts.  You then laughed and she became angry and upset.  These actions underlie Charge 2 on the indictment, indecent act with a child under 16.

[3] A pseudonym

[4] A pseudonym

4Charge 3 relates to the same occasion but with a second victim, your daughter Fiona.  On that same night, your daughter Grace saw her sister Fiona, who was about 11 or 12, also ask you to crack her back and you also told her to lift her hands above her head and then you squeezed both of her breasts from behind. 

5You were interviewed by police on 9 October 2013, telling them that you suffered from post-traumatic stress disorder and had no memory of any of the incidents.  In relation to the allegation of incest you denied doing this but then conceded that if Amelia and her sisters had made complaints, then you probably did them.  I now turn to your personal circumstances. 

6You are 66 years of age.  You emigrated to Australia from Scotland, where you were raised, when you were 20.  Whilst you lived in Scotland, you attended school to the age of 15, then took up work as a typesetter and then undertook a printing apprenticeship, which you completed.  You came to Australia to join the army but for the first two years worked in both Melbourne and Adelaide as a printer.  You entered the army in 1970 and you served there for 16 years, during which time you rose to the rank of sergeant, undertook the prestigious duties of instruction and served 14 months in a total of two postings to Vietnam during the war, where you engaged at some of that time in combat and apparently witnessed some extremely violent and distressing scenes, including a friend standing on a land mine.

7When you were 28, you married your first wife, of which two daughters were born.  That marriage ended and you left the army as a result of that separation in 1986.  Whilst you were in the army it appears you acquitted yourself impressively.  You were awarded the Vietnam Medal for service, the Defence Force Service Medal and an Infantry Combat badge and I received copies of certificates and commendations written by your commanding officers. 

8Once you left the army, you worked with the transit police for a number of years and also, because of your skills in defence tactics and combat, instructed at the Police Academy.  You worked at the transit police for seven years until 1992.  In 1993 you worked as a consultant in the service industry. 

9You married for the second time in 1990.  On the demise of your first marriage, you had assumed sole care of your two daughters.  They lived with you after you married again.  You thereafter had ten children.  For much of that marriage you worked as the primary carer for the children, as your wife was a police officer, and the family lived for many years between New South Wales and Victoria.  You spent many years living in Orbost, then lived in Melbourne and then the family eventually, after several moves in New South Wales, from about 2004 settled in Nowra Hill. 

10You come to this court having already been convicted in relation to persistent sexual abuse of both your two daughters from your first marriage and of five of the daughters from your second marriage.  On 15 October 2008 Judge Conlan of the New South Wales District Court sentenced you to an effective total term of 14 years with a nine-month minimum on three charges of sexual intercourse with a child under ten, three charges of aggravated indecent assault and two charges of aggravated indecent assault which in fact relate to the indecent acts with a child under 16 on the indictment in this before me today. 

11Those charges were, some of them, representative and overall related to the daughters of your second marriage.  The fact scenario from that judgment, which I have read, painted a picture of persistent sexual abuse, but I note that the sexual intercourse alleged was of a digital nature. 

12Then on 14 September 2012 Judge Sexton of this court sentenced you to a total effective term of nine years and ten months on charges of incest, sexual penetration, nine charges of indecent assault, two charges of gross indecency and indecent assault in relation to the two daughters of your first marriage.  That offending represented 14 years of persistent abuse of your two eldest daughters, which included penile penetration.  Her Honour ordered that four years of that sentence be served cumulatively upon the sentence imposed by Judge Conlan and ordered a new minimum term of nine years and six months as of 14 September 2012.

13It appears that the first complaints by any of your daughters arose from Amelia in 2008.  Thereafter other daughters came forward and laid complaints, last of all being your daughters from your first marriage who are now adult women, one of them with children of her own.  Both your elder daughters reported indecent assaults occurring when they were themselves adults. 

14A report was tendered at the New South Wales hearing in 2008 by forensic psychiatrist Dr Jeremy O'Dea, who noted that you had been sexually abused in a serious way when a teenager in a youth group at your local church in Scotland.  He noted that, as a result of your experiences in Vietnam, you suffered a post-traumatic stress disorder and indeed ultimately you were assessed to be totally and permanently incapacitated by the army as a result of your experiences and granted a gold card on a disability pension granted by the army.

15Dr O'Dea noted that you had used alcohol on a very heavy basis from your early 20s.  Certainly in his plea before me today your counsel informed me that your drinking appeared to very much worsen from about 1993 to 1994.  However, it was not the conclusion of Dr O'Dea that your offending could not in any way be linked to your post-traumatic stress disorder or your alcohol abuse.  Ultimately in 2007 you attempted to commit suicide and were eventually admitted to the St John of God Psychiatric Hospital in Richmond.  You remained there, receiving therapy and counselling particularly in relation to your army service and post-traumatic stress disorder, until the charges were brought forward in 2008. 

16Your father died many years ago.  Your mother suffers from Alzheimer's and still resides in Scotland and you have no contact with her.  You have a younger brother who is a successful banker, who came to Australia to visit you when you were first admitted to the St John of God Hospital but, on learning of the charges brought by your daughters, returned without seeing you and you have had no contact since. 

17In every one of the cases involving the allegations, you have pleaded guilty.  You surrendered yourself to police in order to be questioned.  At no stage have any of your daughters been subjected to cross-examination or the stresses and difficulties attached to giving evidence in a trial, and this is to your credit.  I have read the record of interview conducted by police in relation to the charges before me.  Ultimately certainly you admit them to the point of stating that your daughters' allegations were probably true; however, much of the record of interview, in my view, amounted to excessive recounting by you of your problems with alcohol and the difficulties that you had undergone in Vietnam.

18In her sentencing remarks, Judge Sexton noted that when you were questioned in relation to the charges underlying the sentence imposed by the New South Wales District Court you made no mention of the offending against your elder daughters.  She made the comment that whilst she accepted you were remorseful, this was only to a limited extent, and that she would only have found there to be a full remorse had you made full disclosure at the time that you were first questioned about any offending in relation to your children.

19I too, after having read the record of interview, take the view that whilst you are certainly remorseful in terms of what you have said about the enormous pain and trauma you have inflicted upon your daughters, the damage you have done, the destruction you have wreaked, the fact that you can never forgive yourself, when you are actually taken to recounting the events underlying your offending, you are less than forthcoming. 

20Nevertheless, it is important that courts do recognise sexual offenders such as yourself who have pleaded guilty.  It is always important for victims of sexual abuse, particularly victims who were sexually abused as children, to understand that it is very rare for pleas of guilty to be entered.  It is the unfortunate experience of this court that the vast majority of these cases take place in an adversary environment.  That is, before a jury where victims are cross-examined both at committal, then at trial, and that the offender does everything within his power, because it is overwhelmingly a man who is an accused in such situations, without any regard for the trauma or the distress that they are inflicting. 

21The fact of the matter is that you have pleaded guilty to a vast array of sexual offending and, throughout that process, have not put any of your daughters through any more pain than that you have already inflicted.  That being said, I received victim impact statements from two of your sons and from your three daughters who were the victims in the charges before this court.  They make for incredibly distressing reading.  I congratulate Amelia and Fiona for their courage in coming to court and reading those statements out loud.  I echo the comments of Her Honour Judge Sexton in her sentencing remarks, which are that the court recognises the enormous trauma and suffering endured by each daughter and the ongoing difficulties and despair and sorrow and frustration experienced by them for so many years.

22The effects of your offending has been very wide-reaching.  It has affected your daughters' educational capacities.  I made the comment during the plea that it seemed to me from the tenor of the victim impact statements that you have very intelligent daughters who would ordinarily, I would imagine, expect to do well at school.  Each of them, it seems, harboured ambitions to attend university or to join the defence forces.  Because of the enormous emotional difficulties and turmoil in which they had been left, this has been rendered impossible for them at this stage of their lives.  I make the comment this does not always have to be the case. 

23It certainly is, in my view, an ambition in relation to each of you which is worth pursuing, if not simply for the reason that involving oneself in academic pursuits allows an escape from the continual whirling thoughts, trauma, drama and agony that must attend each of you in the hours when you are not fully occupied.  Clearly, as I have said, your daughters are young women of intelligence and courage and hopefully that will stand them in good stead and assist them in their long journey towards recuperation and emotional wellbeing.  As Judge Sexton stated, I also wish them well.

24Whilst in custody you have occupied yourself in a productive fashion.  You are now housed at Ararat Prison.  You work seven days a week in the printing section and have for some years.  You have undertaken a course in the gaol allowing you to assist more disabled prisoners, and that is to your credit.  You have undertaken several certificates.  You remain, as I said, totally isolated within the gaol.  You are completely estranged, unsurprisingly, from all your children and from your former wife, whom you described in one report that I read as the best thing that had ever happened to you.

25You are now 66 and your counsel informed me that you confidently expect to die in gaol. 

26In sentencing you, I must take into account principles of totality.  That is the fact that as of 2012 you faced a minimum term of nine years and six months before even becoming eligible for parole and, if you serve your full term, will not be released from gaol under 2026.  Notwithstanding the seriousness of your offending, and it was extremely serious insofar as the offending before this court is concerned, I still must take into account the overall appropriate sentence as an appropriate response to your offending.  At the at the end of the day I am left with a situation where seven daughters have been subjected to continuing sexual abuse, some less than others, some to a very much greater degree, at your hands.

27You have undoubtedly heard this before, Mr Anderson, but you were their father, the only father these girls will ever have.  They were entitled to look to you, and indeed all children do look to their parents, as their primary source of protection and comfort.  Children who are not able to receive that ultimate sense of security, safety and love from their parents, whether it be a betrayal by way of physical abuse, emotional abuse or sexual abuse, always end up with grave emotional difficulties and, more often than not, underlie the histories of most of the people that this court sees paraded before it as accused person, as persons who have offended.  It is again a great testimony to your daughters they do not present with this history.

28In speaking of the victim impact statements, I do not wish to overlook the very moving statements made by your two sons, Andrew[5] and Richard[6].  It appears they feel that they should have been able to take on some sort of paternal role with their sisters.  They had no such duty, but boys whose sisters were abused by their parents inevitably feel that they have failed their own sisters.  This has affected your boys' sense of their own manhood, their sense of themselves as men, of confidence, of persons who can take their place in the world.  Your actions have had a far-reaching ripple‑like effect, if you like.  What you did to your daughters has stripped away their sense of self comfort, self-esteem and, in doing what you did, you have also affected your sons.

[5] A pseudonym

[6] A pseudonym

29That is why I can only regard your offending in the gravest light; however, in the circumstances as I have said, (and I was at pains to explain this to your family before they left the court before the break, whilst I may sentence you individually in relation to each of the charges in a way which expresses the seriousness of what you did, because of the principle of totality you must leave this court with an overall appropriate sentence) I will not order that that sentence be served entirely cumulatively or in addition to the sentence you are currently undergoing.  In sentencing you, I take into account your age, your remorse and the principles of totality.  Could you stand up, please.

30On Charge 1, incest, you are sentenced to five years' imprisonment.  On Charge 2, indecent act with a child under 16, you are sentence d to six months' imprisonment.  On Charge 3, indecent act with a child under 16, you are sentenced to six months' imprisonment.  I make the comment that sexual penile penetration of a child under ten is considered one of the most serious forms of sexual abuse of a child, and hence that is the sentence that I impose upon you in relation to that charge.

31I order that two and a half years of that sentence be served concurrently with the sentence you are undergoing, leading to a total effective term of 20 years and six months.  I order that you serve a new minimum term of nine years and six months.  Now, this sounds as if it is the same minimum term as was imposed by Judge Sexton, but in fact it is not.  It is an additional two years.  That is because two years have elapsed since Her Honour handed down that minimum term and the minimum term that I impose today is dated from today.  So it is a total effective sentence of 20 years and six months with a minimum term of nine years and six months.

32I note that whilst you were assessed according to the Static-99 by Dr O'Dea as being of low risk of re-offending, that related to erroneous material or information given to him by you as to the extent of your offending and did not involve revelation of the very extensive offending you committed against your two eldest daughters.  I, like Judge Sexton, believe that principles not only of deterrence, of denunciation and punishment are involved in the sentencing exercise before me but also the principle in relation to protection of the community.  Have a seat, please, sir.

33Because you are a serious sexual offender, I need to add that the sentences imposed in relation to the indecent acts for a child under 16 will be served concurrently with the current sentence.  I take this course because I note that offending was taken into account when His Honour Judge Conlan sentenced you in 2008.  Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of seven years. 

34Now, is that all that I need to attend to?

35MR CORDY:  Yes, Your Honour.

36MR SMALLWOOD: I believe there's the matter of the Sex Offender Registration Act, Your Honour.

37HER HONOUR:  Yes.  I declare that you are to be placed upon the Sex Offenders Register for life.  I think there was something else as well.  I think that is all.  Very well.  Just print that out, thank you.

38MR CORDY:  I think there is one thing, Your Honour.  I'm just - - -

39HER HONOUR:  There was something else.

40MR CORDY:  I'm just thinking out loud.

41HER HONOUR:  I know there were two things.

42MR CORDY:  Your Honour should note on the court record that the accused was sentenced as a serious sexual offender on all counts.

43HER HONOUR:  Yes.  I declare you to be sentenced as a serious sexual offender.  I do not, as I am, have the power to sentence you a term which is - what is the term, Mr Cordy?

44MR CORDY:  A disproportionate sentence.

45HER HONOUR:  A disproportionate - and I am not asked to, nor do I feel that it is appropriate in the circumstances.

46MR CORDY:  As Your Honour pleases.

47MR SMALLWOOD:  If it pleases the court.

48HER HONOUR:  Thank you.  Could you take that down, please.  You will be aware of your obligations under the Sex Offenders Register, Mr Anderson.  I am sure they have been explained to you and that Mr Smallwood undertakes that.

49MR SMALLWOOD:  Yes, Your Honour.

50HER HONOUR:  I also thank Mr Smallwood for the manner in which you conducted the plea, which was extremely helpful in a difficult case.  Thank you.

51MR SMALWOOD:  Thank you.

52HER HONOUR:  One thing I have not referred to which I perhaps should have inquired about was what was the reason for the delay in the bringing of these particular charges?

53MR CORDY:  Yes.  I think it relates to the fact that some of the matters were dealt with in New South Wales, Your Honour, and - - -

54HER HONOUR:  And the other two that were dealt with here related to two other complainants.

55MR CORDY:  Yes.

56HER HONOUR:  In sentencing, Mr Anderson, I also take into account the delay in these matters, which is a matter of some significant given that the vast majority of the offending had already been dealt with by the time he came before this court.  That is why there is more, in my view - it is a powerful factor, if I can put it this way, in ordering a minimum term which amounts to a cumulation of two years rather than one.  I think that needs to be taken into account.

57MR CORDY:  As Your Honour pleases.

58MR SMALLWOOD:  As the court pleases.

59HER HONOUR:  Thank you.  Could I also ask, Mr Cordy, I was concerned that the two indecent acts charges before me were taken into account by His Honour Judge Conlan, so I make that comment again specifically, which is I have not ordered cumulation in them.  I think that is a correct approach to take.

60MR CORDY:  I believe that's right.

61HER HONOUR:  Yes, thank you.  It's just I noticed that when I read the sentencing remarks.  Thank you.  Is that everything?

62MR SMALLWOOD:  Yes, Your Honour.

63HER HONOUR:  All right.  I hope you understand the way the sentencing has gone and why.  As I said, if you have got any questions, do not hesitate to ask Mr Cordy, who is very, very experienced in this matters.  But it is really important that, when you have been the victim or the subject of this sort - I do not like using the word "victim" so much, because it seems to me - I see that only Fiona is left and I understand that I am sure you have all seen far more courts than you ever wish to see again in your life.  But that is not a word that, it seems to me, expresses in any way wholly what you are or your sisters, but it is very important that you understand when you left this court that your experiences and your victim impact statements and what you have had to say in this court have had a profound effect.  Again I thank you for your attendance.  Thank you very much, and you too, Ms Anderson.

64All right.  We will adjourn to ten o'clock tomorrow morning.  Thank you.

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