R v Anderson

[2010] VSC 485

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0140 of 2010

THE QUEEN

v

ALLAN JAMES ANDERSON

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2010
DATE OF SENTENCE:	25 October 2010
CASE MAY BE CITED AS:	R v Anderson
MEDIUM NEUTRAL CITATION:	[2010] VSC 485	Amended 11 November 2010

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CRIMINAL LAW – Being an accessory to murder – Guilty plea -  Offence in the low range of seriousness – Assisted with investigations – Circumstances of offending – Alcohol abuse.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Rose S.C.	Office of Public Prosecutions
For the Accused	Mr D. Hallowes	James Dowsley & Associates

HIS HONOUR:

1. Allan James Anderson, you have pleaded guilty to one count of assisting the offender in relation to the crime of murder. 

1. The events giving rise to that count occurred at Flemington on 9 March 2010.  You were at that time living in flat 3, number 47 Railway Parade West in Flemington with two other men:  Stephen Brooks, who is the person charged with murder and the person you are said to have assisted in this case, and Mr Andrew Gutowski, the deceased.  The three of you were regular and excessive users of alcohol and that may have been the most important common feature of the relationship between you.  As is not uncommon in such circumstances, loud, drunken arguments occurred on a relatively frequent basis. 

1. On the evening of 9 March 2010, Brooks had got himself into an argument with a female friend, Tania Kirby.  He also attempted to take up with the neighbours some complaints that they had made to the body corporate.  In particular, he sought to establish whether or not the deceased had been involved in making any of the reports. 

1. By about 10 pm the three of you, that is Brooks, Gutowski and yourself, were at the unit.  You had been out and had returned with more cask wine which you proceeded to, between the three of you, drink.  Neighbours heard the sounds of argument coming from the unit at about 11 pm.  It was then Brooks started to assault the deceased who fell to the floor where he was repeatedly kicked by Brooks causing him severe abdominal injuries, cuts and bleeding to his head and face.  The attack was heard by neighbours and was said to have lasted between 30 and 40 minutes.

1. Kirby, who had been the subject of the earlier dispute with Brooks, returned to the unit at some stage and saw the deceased lying on the floor.  She left when she was subjected to further abuse by Brooks. 

1. The remaining two of you, that is, you and Brooks, went to sleep and awoke in the morning to find the deceased in the same position as he had been the previous night.  It soon became obvious that he had died. 

1. Books produced the runners and socks he had been wearing when he was kicking the deceased.  They were bloodstained.  He asked you to dispose of them and you did so by throwing them into the rear yard of a neighbour's house.  It is that conduct which constitutes the offence of assisting the offender in that it impeding the apprehension, prosecution, conviction or punishment of Brooks. 

1. Brooks later confessed his role to his brother, who happened to be the owner of the unit, and his brother in turn contacted the police.  The police arrived at the unit at about 11 am to find both of you drinking alcohol and the deceased still in the same position as the night before.  When you were interviewed you had admitted to disposing of the shoes and socks and took the police to where they had been thrown.  They were there recovered. 

1. For completeness, it should be noted that the deceased died as a result of significant internal bleeding.  He had a ruptured spleen and there was over 2 litres of blood in his abdominal cavity. 

1. It can be seen from what I have just said that the assistance you gave was not significant and perhaps, more importantly, was not long‑lasting.  As soon as the police became involved, you showed them where the runners and so on were.  It follows that although this offence carries a maximum of 20 years' imprisonment, this is offending at the very lowest end of seriousness. 

1. Your history is an unfortunate one.  I received a report from Warren Simmons, psychologist, dated 23 September 2010 which set out in detail your background.  Although your father died when you were relatively young, you were brought up by your mother and your stepfather in circumstances that would ordinarily be described as being quite satisfactory.  You had four older brothers and sisters and one half‑brother.  Your schooling was relatively unremarkable but you did not thrive as a student and left school on completing Year 9. 

1. You then established a reasonable work history, however I think it apparent and reasonable to say that you became involved with alcohol at a relatively early age. 

1. You have a large number of prior convictions, beginning, first of all, in the Children's Court and progressing then to the Magistrates' Court.  Although there is some indication of some violent behaviour at an early age, all of your offending, which progresses as time goes on,  appears to be largely related to offences of dishonesty of one sort or another.  These were plainly for the purpose of supporting your particular habit at that time.  Having had addictions to different substances at various stages, you ultimately come back to, as was the position at the time of this offending, an addiction to alcohol and the use of alcohol on a daily basis to excess. 

1. You have not been gainfully employed in recent years and although your past is marked by reasonable relationships with others, some maintained over a period of time, and a reasonable work ethic, by the time of these events you were unemployed.  You had been unemployed for some time and were maintaining yourself on benefits as best you could.  There is some evidence in the material of the three of you men at some stage being at the Newmarket Railway Station begging for money to obtain alcohol.  So that was the lowest ebb for you. 

1. You have, in the context of this case, accepted responsibility for what you have done by making your plea of guilty at the earliest stage.  The task now falls to me to sentence you. 

1. As I have already observed, this is not the most serious example of the crime charged.  I am required to attempt to frame a sentence which recognises that you have pleaded guilty, that you are remorseful for the part that you played in these events and that you have got a reasonable wish to do something with the rest of your life.  A life which, if you continue in the way that you have been in more recent years, will be much shorter than it needs to be.  So it is up to you now to see what it is that you can get out of the future. 

1. I am faced with this difficulty;  many sentences I would have regard to, for instance, suspended sentences, might doom you to failure and I do not intend to do that.  I intend to give you some chance to progress in the future. 

1. On the count of assisting the offender, you will be sentenced to be imprisoned for 20 months.  I fix a non‑parole period of nine months before you become eligible for parole.  That is a shorter than usual non‑parole period but I fix it in the hope that you will be given support when you get out of gaol.  Particularly, with regard to accommodation, so that you are given a chance to get off alcohol and to do something useful with the rest of your life. 

1. I declare a period of 230 days as having already been served under this sentence and I direct that this declaration and its details be entered in the records of the court. 

1. Had you not pleaded guilty, I indicate pursuant to s.6AAA of the Sentencing Act that I would have sentenced you to have been imprisoned for three years with a non‑parole period of 24 months.  I also direct that that indication and its details be entered in the records of the court. 

1. I have signed an order pursuant to s 464ZF(b)(1) of the Crimes Act 1958 in the following terms: pursuant to that section the forensic sample and the related material and the information obtained pursuant to the informed consent given by the respondent on 9 May 2010 be retained for placement on the database. I do so because the seriousness of the circumstances of the offending warrant the order, the order is by consent and the granting of the order is in the public interest.