Director of Public Prosecutions v Anderson, Simon
[2012] VCC 1778
•18 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-00182
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON ANDERSON |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October 2012 | |
DATE OF SENTENCE: | 18 October 2012 | |
CASE MAY BE CITED AS: | DPP v Anderson, Simon | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1778 | |
REASONS FOR SENTENCE
---
SUBJECT – CRIMINAL LAW
CATCHWORDS – Sentence – indecent assault (one charge) – plea of guilty – long history of substance abuse
LEGISLATION CITED – Crimes Act 1985 – Sentencing Act 1991
SENTENCE – Community Corrections Order of two years’ duration - s.6AAA declaration – Ancillary orders Forensic Sample order and Disposal Order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Sedgwick | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr W Toohey | Galbally & O’Bryan |
HER HONOUR:
1 Simon Anderson, you have pleaded guilty to one charge of indecent assault which carries a maximum penalty of ten years’ imprisonment.
2 The matter resolved on the first day of trial to the charge of indecent assault from a charge of rape.
3 The prosecution opened the matter as follows:
4 I was told that the complainant in this matter is a Ms Lisa Margaret Jean Smith. You knew each other through a house mate of Ms Smith's, a Ms Angela Han. On the evening of the 26 March 2011 Ms Smith and Ms Han attended your home to pick you up and they then drove you to your birthday celebrations at a house in Elwood. Your birthday celebrations were held at a private residence belonging to a friend of yours.
5 Throughout the evening, both you and the victim consumed large quantities of alcohol. At about 1.00 a.m. Ms Han drove you and Ms Smith back to your house with the intention of dropping you home. You all went inside and whilst at your home you and Ms Smith drank more alcohol and listened to the radio. At about 2.00 a.m. Ms Han and Ms Smith decided to go home. Ms Smith then invited you back to their address because she felt bad leaving you on your own as it was your birthday.
6 On the way back to their home Ms Han dropped Ms Smith off at the Hardimans Hotel so that she could meet up with her friend, however, by the time Ms Smith arrived at the hotel it was closing time and her friend was no longer there. Ms Smith then walked home from the Hardimans Hotel and when she arrived you and Ms Han were watching television in the lounge room. Initially, Ms Smith sat next to you on the blue coloured couch and the three of you chatted.
7 At some stage, Ms Smith then went to sit in the small couch closer to the T.V. When she did this you kept trying to have her come back and sit next to you on the blue couch. However, Ms Smith stayed on the small couch.
8 At about 4.30 a.m. Ms Han decided to go to bed. Ms Smith was still laying on the small couch. She had a small pink blanket covering her and you were still on the blue couch. At some point in time Ms Smith fell asleep on the small couch.
9 At about 8.30 a.m. she woke up to the feeling of her stockings being pulled away from her back. She saw you lying next to her under the pink blanket. You had your hand inside her stockings and underwear and you were touching her on the vagina. At no time did she give you permission to do this.
10 Ms Smith then immediately got up and walked out of the room. She returned to the lounge room and said to you, "What the fuck do you think you're doing? What did you do that for?" Ms Smith then stormed out of the lounge room and into the kitchen and retrieved a mug of water. She walked up to you and threw the water in your face whilst you were still lying on the ground. She shouted at you, telling you to get out. She then filled the mug again with water and went back to you telling you to "Get the fuck out. Get out." She threw the second mug of water at you.
11 You responded by saying, "Yeah, yeah. I'm going." Ms Smith then slapped you a few times to the face and head area and pushed you out the door. She followed you down the path whilst continuing to yell at you whilst you were leaving the house. Ms Han woke up during the altercation and heard Ms Smith yelling at you.
12 She heard her saying things like, "What the fuck are you doing? Don't backchat me. Get out of my house and get your fucking shoes." Ms Han then started getting dressed and heard Ms Smith calling you, "a dirty bastard" and heard a loud slap. She also heard Ms Smith say, "Go and never come back." She heard you respond by saying that you weren't a dirty bastard.
13 Ms Han then met up with Ms Smith at the front door. Ms Smith was very upset and told her what happened.
14 On your behalf Mr Toohey submitted that it was in the context of being affected by a great deal of alcohol and having imbibed some LSD and a bong at the party that you embarked upon the offending for which I now sentence you.
15 The fact that you imbibed the substances in no way excuses or mitigates your criminal conduct but it serves to place your conduct in context and, perhaps, to help explain your actions.
16 Your offending has caused significant impact to the victim who had done no more than be kind to you, not wanting you to be alone on your birthday. Ms Smith asked that her victim impact statement be read aloud at the plea hearing. She said that your actions had permeated every aspect of her life. She has struggled with staying in Australia after this offence and has found things, especially difficult because her family does not live here. Her family were unable to afford to come here to support her and she was unable to leave here because of the uncertainty of the court case. She said that she's usually a conscientious worker but since your offending she has been constantly tired, depressed and distracted which has put her job and sponsorship to reside here at risk.
17 She said that whilst you would not say that she had any significant adverse effects from this crime it has seriously undermined her confidence. She took the decision to make a complaint against you in a bid to stand up for herself and other women but she said that this was the harder path to take for her.
18 Mr Anderson, it is to be hoped that the harm which you have caused the victim helps you to appreciate the wrongfulness of your conduct and how important it is that you refrain from alcohol or any substance abuse in the future.
19 Your offending on this occasion was, indeed, serious committed in the sanctity of the victim's own home where she was entitled to feel safe and not be subjected to any form of abuse. Apparently, in your intoxicated state you misread signals that she was innocently conveying prior to going to sleep. It was in these circumstances that you took it upon yourself to indecently assault her.
20 In no way could it be said nor was it said that at the time that you placed your hand down her underpants and touched her vagina that she was consenting. She was asleep and you were, no doubt, aware of this when you took it upon yourself to indecently touch her.
21 You have a number of prior matters in Western Australia from between 1994 and 1998 which were referred to as street offences by your counsel. Two of these matters were in respect of disorderly conduct and one was a driving offence whilst in excess of the alcohol limit which, in that State, is .08.
22 In relation to that charge it was alleged, as I understand it, that your reading was greater than .14 but less than .15. There was also a prior matter for an offence known as "damage".
23 You were fined in respect of all of these matters which were dealt with at Petty Sessions Courts in either Fremantle or Perth. You also had your license disqualified for six months in respect of the exceed .08 matter. I understand that these offences were committed in the context of your abusing alcohol.
24 I take into account that they are somewhat dated but as will become apparent I have concerns about your drinking and committing offences.
25 On 12 August 2003 at the Melbourne Magistrates Court you were convicted of reckless conduct, endangering serious injury, failing to report and failing to stop after an accident. You were fined an aggregate of $1,200 and your licence was cancelled with you being disqualified from driving for six months.
26 I was told by Mr Toohey that the basis for these charges was that you crashed into a tram stop and left the scene but he told me that no alcohol was involved.
27 In a report from Dr Kennedy, psychologist, dated 8 October 2012 it is made clear by Dr Kennedy that alcohol has been a longstanding problem for you and has been related to a good deal of your offending in the past, albeit that Mr Toohey has told me that your most recent prior conviction was not alcohol-related. You should be aware that in the event that you commit any further offences at a time when you have chosen to imbibe alcohol, then your decision to do so may well be regarded by the court, who sentences you, as an aggravating feature of any future offending.
28 I take into account your background which was set out on your plea. Although your parents are separated and divorced, they are both supportive of you in your present predicament. Your father, and a close friend, Fiona Burke, were both in Court to support you upon the plea hearing and as I understand it provide ongoing support as does your mother. You have six siblings, all of whom are married with children, and you regard yourself as something of a “black sheep” in the family.
29 You were educated to Year 11 in Western Australia, where your mother and father both lived. In 1990, you completed an apprenticeship with your father’s company, Anderson Signs, and worked with that company for six years. You then embarked on various other occupations and have worked on and off over the years for fairly significant periods. Unfortunately, having returned to Victoria from Perth in 2010, you did not obtain work and were receiving Centrelink benefits, which you continued to receive. It was in this context that you committed the offence. However, since August 2012, you have obtained a voluntary position with the Salvation Army, working in one of their shops a few days each week. Mr Toohey said that you have tried to obtain employment, having made many applications, but have been unsuccessful in obtaining employment to date.
30 Tendered on your plea, amongst other documents, was a letter from a Dr Elizabeth Leader dated 27 September 2012 where she said that you attended the practice where she works in St Kilda on two occasions for mental health issues. The first of these occurred on 1 February 2010 when you consulted her following an alcohol binge and required a certificate for work. On that occasion, you admitted to her that you suffered from anxiety and she recommended that you address this and alcohol abuse with a two-pronged approach of cognitive behaviour therapy and anti-depressants. However, you did not take up the offer. Then, on 25 May 2010, you consulted Dr Peter O’Brien, who diagnosed you as suffering depression and provided counselling, a medical certificate and a prescription for anti-depressant medication.
31 Dr Simon Kennedy saw you on 1 October 2012 for the purposes of preparing a report. He conducted a sexual offending risk assessment and found that you were at low risk of sexual violence. He reported that you were shocked and upset about the criminal “charges” and that they had taught you a harsh lesson, that you needed to accept that you had to deal with your alcohol problem. In this regard, Dr Kennedy assessed you, diagnosing that you suffered from alcohol abuse and dependency, cannabis abuse and dependency (which was in partial remission) and that your personality was vulnerable to substance abuse.
32 Dr Kennedy concluded that your background and history was unremarkable, although your mental health evaluation indicated a long history of substance abuse since your teens, particularly related to cannabis and alcohol. More recently, alcohol had been the major problem which had led to you committing the offence for which I now sentence you - in saying that that was Dr Kennedy's own view.
33 You have no personality disorder or mental health disorder apart from alcohol abuse and dependency. He said that your offending behaviour for which I now sentence you was related to “the disinhibitory effects of significant alcohol abuse … and also to the reported use of LSD”.
34 Dr Kennedy reported that you would benefit from inpatient substance abuse rehabilitation via an agency such as the Salvation Army Bridge Program for a duration of several months. Further, you require substance abuse intervention over a period of two to three years in order to solidify any gains which you have made. Also, you require assistance with gaining employment once more. He assessed your chances of recidivism as being low, “particularly if the recommended interventions took place”.
35 I do note that notwithstanding your recognition that alcohol has played a significant part in your offending before me, you have not taken any steps to address this in any formal setting. Mr Toohey said that you had thought of attending Alcoholics Anonymous but found the prospect too embarrassing or frightening.
36 Mr Anderson, I have decided to impose conditions upon you in a Community Corrections order which will ensure that you do address your problems with alcohol and also address any issues such as depression that may be enduring. If you fail to take advantage of the opportunities you are being given, then I assure you I will view a breach of the order by failing to comply with the conditions imposed as a most serious matter.
37 In all of these circumstances, including your limited criminal history, but also including your present problems with alcohol and failure to address this to date, I regard your prospects of rehabilitation as fair. In order to assist you with your rehabilitation, you must look to the supports that you have in the community and avail yourself of the support that you will receive by the ongoing Community Corrections Order.
38 Your offending also warrants just punishment and your conduct must be denounced. Therefore, I will impose a work condition which ensures that you will contribute to the community in a positive fashion.
39 In assessing your prospects of rehabilitation, I have taken into account the bundle of documents which was tendered on your behalf which attests to your otherwise good character and also evidences a capacity on your part to work. I also take into account your plea of guilty in this matter, notwithstanding the stage at which was entered, a matter which I will refer to in due course.
40 In light of your limited criminal history but also in light of your offending on this occasion and continuing problems with alcohol, I do place some weight on specific deterrence; however, I must place significant weight on general deterrence to signal to others who may be tempted to behave as you have, that such conduct will not be tolerated.
41 You entered a plea to this charge on the first day of trial where the allegation was rape. You ran a contested committal hearing and no offer to resolve the matter was made until such a time as Mr Toohey became involved some five days out before trial. The defence response for the trial indicates that you were admitting some touching, falling short of sexual penetration, which appears to be the issue which has now resolved in your favour. It appears that you may have been receptive to resolving the matter on the present basis at a time earlier than just before trial and it is most unfortunate that this was not done. In the circumstances, you have saved the witnesses, particularly the victim, the time and trauma of giving evidence at trial; however, you have not saved the victim the time and trauma of giving evidence at the committal hearing and the matter did not resolve until a late stage which added to her trauma in respect of the uncertainty as to the outcome of proceedings. However, in light of your apparent preparedness to admit such conduct falling short of sexual penetration, which has now been accepted by the Prosecution, I allow for a fairly substantial discount in the sentence that you would otherwise receive. This is your entitlement, also, because you have saved the community the time and expense of running trial proceedings.
42 As I have indicated, I am satisfied that the Community Corrections Order and the terms and conditions of which I will set out meets all sentencing considerations and the weight which I must attribute to these.
43 I will now indicate to you the terms of the proposed Community Corrections Order which will be as follows:
(a) I propose to convict you of the offence and place you on a Community Corrections Order for a period of two years. During the next two years you must not commit another offence for which you could be imprisoned during the time that the order is in force. You must comply with any obligation or requirement proscribed by Regulation 17 of the Sentencing Regulations 2011.
(b) You must report to and receive visits from the Secretary to the Department of Justice or his or delegate.
(c) You must report to the Moorabbin Community Corrections Centre tomorrow at 4.00 p.m.
(d) You must let a Community Corrections Officer know within two clear working days of you changing your address or employment. You must not leave Victoria without first getting permission to do so from the Secretary to the Department of Justice or his or her delegate.
(e) You must obey all lawful instructions from and all directions of the Secretary to the Department of Justice or his or her delegate.
(f) Further there will be special conditions imposed in your case. You must complete 500 hours unpaid community work within the next two years.
(g) You must be supervised, monitored and managed as directed by the Secretary to the Department of Justice.
(h) You must undergo assessment and treatment including testing for alcohol abuse or alcohol dependency or drug abuse or drug dependency as directed. Such directions may include a requirement that you undergo assessment and treatment, including testing at a residential facility.
(i) You must also undergo assessment and treatment in respect of your mental health.
(j) You must undergo any program deemed necessary as directed by the Secretary to the Department of Justice to address your offending behaviour, including assessment for the Sex Offender's program and if deemed appropriate participation in such a program.
44 You should also appreciate the consequences of failing to comply with the order.
45 I should tell you that if you do not comply with all of the requirements of this Community Corrections Order then you will face breach proceedings.
46 You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charge, in which case you may well be sentenced to a term of imprisonment.
47 I would regard a breach of the Community Corrections Order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the conditions of the order.
48 Mr Anderson, do you understand all of the terms and conditions of the order that I propose to impose?
49 PRISONER: Yes. Thanks a lot.
50 HER HONOUR: Do you consent to the making of the order?
51 PRISONER: Yes.
52 HER HONOUR: Do you understand what might happen to you if do not comply with the order?
53 PRISONER: Yes.
54 HER HONOUR: I will now then make the order in the terms and conditions that I have previously set out. You can leave the dock for the purposes of the order being signed with the assistance of your counsel, Mr Toohey, so you can now step out for the order to be signed.
55 HER HONOUR: I have now signed that order and so as I have indicated that order will now take effect in the terms and conditions that have been set out.
56 In relation to the ancillary orders you can stay where you are for the purposes of me sentencing in relation to these matters, Mr Anderson.
Ancillary Orders
57 I was told that the Prosecution are entitled to make an application for retention of the forensic sample which you have previously provided. Mr Toohey submitted that this was a matter for me, but submitted that in all the circumstances, such an order was not warranted as you are not at risk of re-offending and it really came down to a question as to whether the case warranted such an order to be made in my view.
58 In my view, the seriousness of your offending, the fact that you do have some prior matters, whether they be alcohol-related or not, and the fact that the risk of re-offending, as I see it, is largely tied up with your ability to beat your alcohol and substance abuse problems. In those circumstances, I consider that an order is warranted to retain the forensic sample which you have previously supplied.
59 I also make the Disposal Order which is not opposed by you.
60 Although the Prosecution primarily submitted that a custodial disposition was warranted in your case, they did not oppose you being assessed for a Community Corrections Order. As I have made it plain in discussion, a Community Corrections Order may be imposed in circumstances where previously, a suspended sentence was warranted. In your case, I regard the nature of your offending and the difficulties that you continue to undergo as requiring the imposition of a Community Corrections Order so that you may receive the help that you need and be appropriately punished, and that the community can hopefully be protected from you in the future.
61 As I see the imposition of this order as being more onerous in some ways and yet more constructive in your case, than a wholly-suspended sentence, I indicate that if not for your plea of guilty to this offence, I would have sentenced you to an immediate gaol term of twelve months’ imprisonment.
62 Are they the matters counsel?
63 MS SEDGWICK: Yes, Your Honour.
64 HER HONOUR: Mr Toohey? Are they the matters?
65 MR TOOHEY: Yes, Your Honour.
66 HER HONOUR: Yes, thank you. I'll leave the Bench.
- - -
0
0
0