DPP v Anderson
[2000] VSC 226
•26 May 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL JURISDICTION | Not Restricted |
No. 1404 of 1996
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WARREN IAN ANDERSON |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF SENTENCE: | 26 May 2000 | |
CASE MAY BE CITED AS: | DPP v Warren Ian Anderson | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 226 | |
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Criminal law – sentencing – murder – history of violence – breach of intervention order – sentence upon retrial – considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
For the Prosecution | Ms S. Pullen | OPP |
| For the Accused | Mr D. O’Doherty | Victoria Legal Aid |
HIS HONOUR:
Warren Ian Anderson, you have been convicted by a jury of the murder just after midnight on Sunday 2 April 1995 at Stawell of Ms Kim Kirsten Bauer. At the time of her death Ms Bauer was 26 years of age, nearly 27, having been born on 30 April 1968. She was a vibrant young woman who had her life before her. She was 161 centimetres in height and 57 kilograms in weight. You were 31 years of age, male, large and brutal.
There is a history of the relationship between yourself and Ms Bauer. You were devoted to each other but, despite that, you regularly inflicted violence upon her. I shall not repeat the history of that violence, save to say that, as the witnesses before the jury demonstrated, in March 1994 in Darwin you inflicted violence upon her and in Stawell, six weeks before you murdered her, you inflicted serious violence upon her. She had spoken with you when she came from Darwin to Stawell and hoped, as she always hoped, that you would mend your violent ways. You did not. I do not here impose sentence upon you for those previous matters as you have been dealt with for them and you are not before me for them. They however provide a background to the matter for which I am to sentence you. As a consequence of the violence you inflicted upon Ms Bauer in Stawell, on 20 February 1995 an intervention order was made by the Magistrates' Court at Ararat prohibiting you from assaulting, harassing, threatening or intimidating her or from being at her premises. She still hoped you would mend your ways and that intervention order, which was made by consent, was operationally varied by her in that she yet again took you back; but yet again you were violent to her. The significance of the intervention order, Mr Anderson, is that you were on notice from the court to desist your violent behaviour towards Ms Bauer.
On the Saturday night before you killed her you and she had attended friends in Stawell and had had what to all appearances was a pleasant evening. A little after 11.00 p.m., when she and you had returned to the Main Street premises where she was living, she went across the street to the Commercial Hotel to obtain some chips and then went back to her premises. Whatever happened between you both in her premises is unknown, but what is known is that there, in the early hours of Sunday 2 April 1995, you violently, repeatedly and persistently assaulted and stabbed her. You assaulted her with your fists and with a weapon, a poker. You stabbed her repeatedly, and so violently that she suffered two broken ribs in one of the stab wounds. So persistent was your attack upon her that despite two rescue parties from the hotel entering the premises you did not stop. That speaks loudly of your determination to persist in your violent attack upon her. Ordinarily, one would have thought that if there were a rush of emotion in the attacker, the presence of one let alone two external interventions by rescue parties would have brought the person back to emotional sense; but not you. The graphic evidence of those persons as to your deadly conduct towards Ms Bauer need not be repeated by me in this sentence but is recorded in the evidence of those persons before the jury.
Ultimately, Ms Bauer was rescued and then collapsed on the street outside. She died soon after, in the Stawell Hospital. You decamped to the Stawell Police Station. It is to your credit that you did say at the Stawell Police Station: "She's worse. She's at 180 Main Street", and I take that into account in your favour, for, by reason of your saying that, the ambulance which had been directed for you was redirected for her. You blamed her. You said: "She started it", and then at the hospital at Stawell before you were removed to Horsham, to Senior Constable Polglase you said: "It's not my fault. It's her fault", as indeed you in substance said in your interview by investigating police at the Wimmera Base Hospital, Horsham, later. You have no remorse for your crime. Yet again a violent man blames his victim.
I proceed, as I directed the jury to proceed, on the basis that Ms Bauer, in defending herself, took the nearest defence weapon she could find, a kitchen knife, and stabbed you as you were attacking her. That favourable finding to you does not diminish the penalty to be imposed upon you, because you started the attack, which was a violent attack, she started to defend herself and then you overpowered her and took the knife and killed her.
I acknowledge the professional ministrations of Dr Castle of Stawell and Mr Campbell of Horsham and their expert evidence before the court. I express my respect and admiration for the young persons of Stawell who repeatedly tried to save Ms Bauer from your attack and I acknowledge their bravery and their responsibility.
Unfortunately, there have been two previous trials of this crime. First, in Horsham commencing on 15 April 1996 and concluding on 10 May 1996 whereupon you were convicted of murder and were sentenced on 7 June 1996. Then, because a re-trial was ordered, a second trial commencing on 19 November 1997 and concluding on 11 December 1997 whereupon you again were convicted of murder and were sentenced on 17 December 1997. The retrials occurred through no fault of yours. No doubt the strain over that lengthy period of not knowing your fate has been a burden upon you and I take that into account in diminution of penalty.
However, it requires little imagination to understand the terrible burden these repeated proceedings have been upon the family of the deceased, who themselves truly are victims. I have read the impressive and moving victim impact statements in this case and I acknowledge to the family victims the burden placed upon them by the repeated judicial proceedings which have occurred in this case and which I trust now are at finality, and I hope that finality assists the family of the deceased hereafter.
I take into account the matters so ably urged on your behalf by your counsel, Mr O'Doherty, including your work history, material contained in the exhibits tendered before the previous sentencing judges, and notably the report of Mr Joblin, psychologist, of 4 April 1996. That report reveals (at pp.5-6) that you suffer no psychiatric illness or psychological disorder. I further take into account the courses you have successfully undertaken and completed in custody, for which you are to be given proper credit. I take into account in that regard also the evidence of the officer, Mr Nemerich, industry manager of the Barwon Prison, before me on the plea and, further, the report of Dr Mark Kennedy of 17 July 1999 concerning your medical condition. Mr O'Doherty in his plea was comprehensive, properly so, and I take into account the matters he most helpfully has submitted on your behalf, together with the evidence that I have briefly alluded to.
Of the principles of sentencing which guide the discretion of this court in sentencing, the first is condemnation, and your conduct is condemned by the court and by the community. The second principle is punishment, and you are to be punished for your murderous conduct towards Ms Bauer. The third is deterrence. First, general deterrence, the deterrence of other violent men in society from assaulting women, a significant matter in this case. Next, special deterrence, the deterrence of yourself from so doing. All those matters speak significantly against you, Mr Anderson. In your favour I take into account the principle of reformation, that you have shown by your conduct in prison that you are seeking to reform yourself, and the burden of the repeated and extended proceedings upon you.
There are three particularly aggravating aspects of this tragic crime. The first I have recited: your persistence in your murderous conduct after interruption by two rescue parties. The second is that you were on judicial notice by the Ararat Magistrates' Court on 20 February 1995, merely six weeks before, not further to assault Ms Bauer. The third is that the assault was in her home, a place which should have been a place of safety and which you violated.
I have considered anxiously the merciful sentences imposed by the preceding learned sentencing judges and whether I should impose a heavier sentence upon you than has previously been imposed. There is authority relevant to the matter of sentence upon retrial: in Victoria, Chen (1993) 66 A.Crim.R. 154 at 171-175 per curiam; Emery (unreported, C.C.A., 11 April 1979) per Young C.J. at 7 (and in whose judgment Menhennitt and Jenkinson JJ. agreed); and R v J (No.2) (1998) 3 V.R.602 at 634 per Winneke P. and Charles J.A.; in N.S.W. - not the law here - Gilmore (1979) 1 A. Crim.R. 416 at 419 per Street C.J. (with whom Lusher J. agreed) (Begg J. contra) and Bedford (1987) 28 A. Crim.R. 311 at 316-317 per Street C.J. (in whose judgment Slattery C.J. at C.L. and Brownie J. agreed); and in South Australia, R v Garrett (1978) 18 S.A.S.R. 308 at 313-315 per Hogarth A.C.J. and White A.J. and at 316 per Wells J. I must say that the South Australian reasoning commends itself to me much more than the New South Wales'. In any event, the law in Victoria is that in sentencing upon retrial, the earlier sentence does not operate as a ceiling containing the later sentencing discretion; that the later sentencing judge must be true to his or her judicial oath and impose the sentence which he or she considers the proper sentence; and that consistency in sentencing, being a desirable aim (for a number of reasons, not least the expectations of the accused) should ordinarily be sought to be achieved. In the end, I have decided that I should not impose a heavier sentence upon you than that imposed by the last preceding learned sentencing judge, Byrne J.
You have been in custody since 3 April 1995, and deducting the 18 days for the breach of the intervention order, pursuant to s.18(4) Sentencing Act 1991 I declare that 1864 days of the sentence I impose upon you be reckoned as already served and I so certify.
Mr Anderson, for the murder of Ms Bauer I sentence you to 17 years' imprisonment. I direct that you serve a minimum term of 14 years' before becoming eligible for parole.
Remove the prisoner.
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