R v Anderson

[2021] NSWDC 844

District Court

New South Wales

Medium Neutral Citation:

R v Anderson [2021] NSWDC 844

Hearing dates:

26 November 2021

Decision date:

02 December 2021

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

The offender is convicted.

Special circumstances are found – first real period of custody as an adult and need for an extended period of supervision on parole to rehabilitate and to reintegrate into the community.

The offender is sentenced to a term of imprisonment for 2 years and 6 months comprising a NPP of 1 year and 3 months to commence on 30 November 2021 and to expire on 28/2/23, on which date he will become eligible for parole, with a balance of term of 1 year and 3 days to expire on 29 May 2024.

The offender is to surrender himself to Casino Police Station by 10 a.m.3 December 2021.

Catchwords:

CRIMINAL – sentence after trial – recklessly wound – convicted of alternative count by jury – seriousness of offence - Crown’s position that offender acted out of revenge where self-defence was raised at trial and sentence hearing – subjective matters

Legislation Cited:

Crimes Act 1900

Cases Cited:

Bugmy v The Queen [2013] HCA 37

R v Fernando (1992) 76 A Crim R 58

R v Lester [2020] NSWDC 642

Category:

Sentence

Parties:

Regina
Anderson, Fanon

Representation:

Solicitors:
CR: Mr N Scully ODPP
DEF: Mr E Renard Legal Aid NSW

File Number(s):

2020/00082025

JUDGMENT

1. HIS HONOUR: Faron Anderson appears for sentence today, having been found guilty by a jury on 17 September 2021 in respect of a count of that on 14 March 2020 at Port Macquarie in the State of New South Wales, he did recklessly wound Barry Jones, contrary to s 35(4) of the Crimes Act 1900.

2. The maximum penalty available under the legislation is seven years’ imprisonment and there is a relevant standard non-parole period of three years’ imprisonment.

3. Mr Anderson stood trial in relation to two charges, the first charge being for an offence of wound with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act. The charge in respect of which he was found guilty was an alternative to that count, he having been found not guilty of the primary count.

4. I note that he had offered to plead guilty to the alternative count in the Local Court prior to committal, that offer was declined by the prosecution and that he is accordingly entitled to a 25% discount for the utility of the offered plea. However, I note that at the time of trial he entered a plea of not guilty to the alternative count as well as the primary count. In my view, that means that the standard non-parole period is still relevant to take into account as a guideline in respect of the offence.

5. The circumstances of the offending are as follows.

6. Both the offender and the complainant, Barry Jones, were affected by alcohol to varying degrees. I would accept on the evidence that Mr Jones was more substantially affected and the offender to a lesser extent.

7. There were two groups of persons in William Street, Port Macquarie, late at night on 14 March 2020. The offender was with his partner, Kristy Russ, and his younger brother, Jai Binge. They had been at the local hotel consuming alcohol, although I accept that Ms Russ, having recently found herself to be pregnant, was not partaking in alcohol.

8. The victim, Barry Jones, had been drinking with friends elsewhere in Port Macquarie but decided with them to go for a stroll down one of the main streets at Port Macquarie. He had been carrying with him a bottle of Grey Goose Vodka which he had been consuming while walking through the streets, but at the time the two parties came together he had almost completed the consumption of the content of the bottle, perhaps with others in his group.

9. The two groups came together, Barry Jones knew Jai Binge and some conversation commenced between the two groups. It is impossible on the evidence to determine exactly what happened in the initial stages, but it is evident that there was at least some argumentative discussion in relation to the Indigenous origins of the two groups and/or the areas from which they came.

10. As far as is discernible it is apparent that Barry Jones was perhaps somewhat provocative in his conduct, offering to fight, arising somehow from the discussion of the varying indigenous mobs or groups. There was at least some pushing and shoving between the parties until eventually Kristy Russ stepped between the victim Jones and the offender in an endeavour to keep them apart and to prevent a fight from breaking out. I accept that the victim, Mr Jones, was offering to fight anyone, and no doubt proclaiming his prowess at fighting, and at an early stage in the proceedings removed his T-shirt or shirt.

11. However, as a result of Ms Russ intervening between the offender and the victim, Mr Jones sought to strike Mr Anderson. Unfortunately for Ms Russ his blow went over the offender and struck Ms Russ on her left cheek. I accept that it was not the intention of Mr Jones to hit her but rather to hit Mr Anderson.

12. At about this time the victim had placed the empty or almost empty bottle of vodka on the ground, being a concrete path. The offender was in effect no longer restrained by Ms Russ and either smashed the bottle or it was accidentally broken by some other person then party to the scuffle, or alternatively the offender went to pick the bottle up and, in the process, accidentally smashed it before then picking up a broken piece of the bottle.

13. I accept beyond reasonable doubt that at the time that this happened, the victim, Mr Jones, was backing away from the presence of Mr Anderson and indeed sought to interpose between himself and Mr Anderson one of his own friends as some form of human shield. Unfortunately, no doubt most of the participants being affected by alcohol, Mr Jones and his friend that he sought to use as a human shield fell over, whether that was because Mr Jones tripped over the legs of his friend, or because together they somehow tripped over the edge of the gutter; however, Mr Jones fell on to the roadway.

14. At the time he picked up part of the broken bottle, Mr Anderson, who had been some 2 to 3 metres away from Mr Jones; that is from the position where Mr Jones fell over, rushed forward and went on top of Mr Jones. Using the shattered part of the bottle that he had collected, injuring his own hand in the process of collecting it, the offender slashed at Mr Jones and inflicted two injuries to his head, one in the middle of his upper scalp towards the top of his forehead, but in the scalp hairline itself, another slash across the victim's right forehead, the bridge of his nose and his left cheek, leaving a clear and obvious wound. I accept that because of the position of the injuries, there must have been at least two blows struck by the offender to Mr Jones, who was then on the ground. The second blow, whichever it be, was probably struck as Mr Jones tried to rise from the ground. That may account for the one within his scalp or hairline.

15. The complainant, Mr Jones, was unarmed at the time that he was struck, and he was on the ground, having fallen over. There was a further continuation of the altercation when it would appear that Mr Jones probably managed to get on top of the offender, but the fight was then broken up.

16. CCTV footage was recorded from the nightclub “Altitude” which was immediately across the street; however it was only a peripheral view of the scene. However, the exhibit which contained the footage captured (although in the distance and in poor lighting) at least Mr Jones falling over on to the roadway, although the view of the actual fall and his being on the roadway is obscured by the position of a parked vehicle, and very shortly thereafter the offender apparently coming into view in order to go over the top of Mr Jones before he also disappears from view behind the parked car. There are a number of other persons clearly present at around this time as seen in the CCTV footage.

17. An issue has arisen in the trial and in relation to sentence as to whether the offender was engaging in self-defence and as to whether the jury found that the conduct by him was not necessary to defend himself or was not a reasonable response.

18. The prosecution ran the case on the basis that the conduct was the offender acting out of revenge because of the blow struck to Ms Russ. What occurred is in a way equally consistent with being conduct not necessary to defend himself, and conduct that was not a reasonable response. In that respect, in my view it is appropriate to find beyond reasonable doubt that the offender was, as submitted by the Crown, acting in revenge and not in self‑defence or defence of another.

19. Relevant to that issue is the evidence given by a number of the witnesses as to the sequence of events. Mr Jones said this:

"Yeah, I was just sipping on, and it was like almost empty and then I - yeah, then when I seen him, like, Jai being a good mate and what not, he was trying to stop us from having a fight which is understandable.

Q. What was he doing to try and stop you from having a fight?

A. They were wrestling, like wrestling around Faron and trying to get around him and then when I see, this let's say nah, I was like all right we're about to fight so I put my bottle down on the ground and that's how I was raised like, if you're going to have a, (not transcribable [fight]), like yeah and then I yeah, I put the bottle on the ground. And while he was wrestling with Jai, they both knocked over the bottle and split it straight in half. Like it literally broke in half and then I remember him getting around Jai, he picked up the bottom of - like it was fully fledged - full-fledged. It would have been bigger than his hand I'm telling you, it's a 1 litre bottle and yeah, he grabbed the bottom of it and he ran at me like that. I don't know if it was his left hand or his right hand but I'm going to say his right hand because I remember that action before everything went red and I hit the ground."

20. He went on to say that he was about 10 metres away, which in my view was an exaggeration.

"And then he rushed me and out of instinct I grabbed one of my - not actually like really close mates that I've known my whole life and like I still hate myself for doing this, I grabbed him, he's younger than me, pulled him out of like inches in front of me and he fainted. As he fainted he fell on to my legs and I fell on to the road and as I was like getting back up, as I turned like that, Faron was coming down with the bottle and went bang straight into my face and then everything went red and I couldn't tell if he hit me once or twice with it because there's a gash all the way across here, gash up here and like a deep wound in my actual like head."

21. Jai Binge was in close proximity at the time and his evidence was seeing Mr Jones walking around with a bottle and some conversation in which Mr Jones was inviting the offender to have a fight which was being refused by Mr Anderson. That Mr Jones took off his T-shirt and then rushed Mr Anderson, at which time Jai Binge tried to get in the middle and push them back. They were punching each other and yeah and wrestling, and he said this [at p 58]. He said that he said to Barry, "yeah, we know you and all that here there". Then he turned around, then Kristy got in the way and then he hit Kristy. She was telling them to fuck off and Faron was just standing there behind her, and Barry hit Kristy. That was when his brother picked up the bottle.

22. As to how Mr Jones hit Kristy Russ, he said to his observation he was trying to hit the offender but missed and hit her. As to picking up the bottle, he said Faron picked it up, smashed in his hands and he picked up a shard of glass. Barry grabbed one of his friends; put him in front of him, trying to block Faron. Then they fell over and Faron just got on top of him. "Like he just fell straight onto them, like just all the scars on his face and that's it".

23. As to his brother picking up the broken part of the bottle, he said he had seen that. As to how Mr Jones fell over with his friend he said:

"I think they fell off the gutter when they were stepping back".

Q. So they were moving backwards?

A. Yeah.

Q. How far away from Faron were they at that stage?

A. It was like from here to what - to that white desk.

Q. So just 2 or 3 metres?

A. Yes.

Q. They're moving backwards and they've fallen?

A. Yes.

Q. Then you said Faron has come over the top; can you describe exactly what it was Faron did?

A. Like he just fell on - like fell onto him with just like a slashing manner"

24. which he demonstrated with his hand, describing in words as "No, like he was just coming straight across like that there, from back to swipe down" and then described that as being like from the side coming over, parallel with his chest in a slashing motion, hitting Mr Jones in the face.

25. Kristy Russ said this in relation to the fight:

"Yeah, he was just trying to pick fights with Faron and he's going like this on his chest saying, 'no cunt will beat me'. He hit his chest like more or less saying to Faron like no one will fight me".

She said that as to whereabouts she was when this was happening, "I was trying to - it was in the middle of Faron and him and Jai and I was like trying to push Faron backwards, like trying to say no, no, don't fight, go, like go." She did not hear the offender saying anything. She said,

"I was trying to push him backwards, like trying to get him away from fighting and then Barry was like really aggro at the time, like wanting to fight and he's come over the top of Jai and went to hit Faron but it hadn't hit Faron, it's connected into my head so he actually hit me in the head".

26. I accept that that evidence supports that Ms Russ was hit in the head by Mr Jones. However, it was at that point that Mr Jones commenced to back away and was backing away at the time that Mr Anderson either smashed and retrieved the broken part of the bottle or simply retrieved a broken part of the bottle that had been smashed by some other means, and used that to then attack Mr Jones, who was not at that time in fact threatening anyone or fighting with anyone.

27. The offender was not acting in defence of himself nor was he acting in defence of his partner, but was clearly angered, although I accept that there was a degree of provocation in respect of that anger. He then acted deliberately and consciously to acquire a weapon; however, it may have been created, and to use that to then assault Barry Jones while he was in fact lying on the roadway or attempting to get up from the roadway after having fallen. The complainant, Mr Jones, was as I have said unarmed at the time that he was struck, and indeed was unarmed except with a bottle that he had put down at a significantly earlier point.

28. I am satisfied beyond reasonable doubt that at the time the offender struck Mr Jones the conduct was not necessary to defend himself and that he was acting out of revenge and not in defence of himself or any other person, but as I have noted, after a degree of provocation by the victim. Indeed, in the evidence of Ms Russ, it would appear that the offender broke free from her in order to rush at the victim.

29. The victim is now permanently scarred. I note that the evidence was that not only did he receive the laceration that I have previously referred to, to the scalp but also to the right forehead, the bridge of his nose and the left cheekbone as in effect one injury consistent with a single slash, that is from the right forehead to the left cheek bone across the bridge of the nose. It is fortunate for the victim, and indeed also fortunate for the offender that the slash that went from the forehead to the cheek across the bridge of the nose did not take out an eye. The photographs in Exhibit 2 and the video footage of the victim in hospital which was also part of the trial demonstrate that there would not have needed to be very much movement from the actual position of the injury to have involved the possible laceration and/or injury of one of the victim's eyes.

30. Not only did the victim have those injuries, but there were also multiple lacerations to his right forearm measuring less than 1 centimetre, and when being treated at the Port Macquarie Base Hospital at about 1.35am on 14 March 2020, multiple large foreign bodies were located in the soft tissues of the head. There is no Victim Impact Statement, but the victim gave evidence in court and had an apparent scar on his face at the time he was giving evidence.

31. As to the objective seriousness of the offence, I accept that this was a serious offence. Striking another person with a broken bottle or glass, commonly referred to as “glassing,” frequently results in very serious injuries, particularly when the point of contact is the facial area.

32. While the victim was no doubt argumentative and provocative, it did not in any way justify the offender in assaulting him in the way that he did, causing a significant injury. The offence involved the use of a broken bottle and was in circumstances where the victim was on the ground when struck by the offender. The injury was of course to his face and head as well as the right forearm, and the victim was struck more than once.

33. In my view, the offence falls, in those circumstances, towards the mid‑range of objective seriousness, but not at the mid-range. There are no other aggravating features. While I note that the offender was on a Conditional Release Order for a period of six months commencing on 4 March 2020, that is some ten days prior to the offence, it was only in relation to his driving with an expired licence, which in my view has little if any relevance to the sentencing process in this matter.

34. As to subjective matters, the offender is now some 31 years of age and will be 32 on the 21st of this month. He was arrested on 14 March 2020, the date of the offence, and was released from custody on 16 March 2020. He has accordingly spent only three days in custody as a result of this offending.

35. As to the subjective matters before the Court is the offender's criminal history which commence as a juvenile involving offences of possessing prohibited drugs, self-administering, breaking and enter building, destroying or damaging when breaking and entering, larceny, carried in a conveyance without consent of the owner, destroy or damage property, break and enter building, aggravated break and enter and commit serious indictable offence.

36. However, as an adult he significantly modified his behaviour and indeed in relation to offences of violence there is in effect only an assault occasioning actual body harm being domestic violence related in 2012, and which as I understand it relates to a past partner who was not present with him on the evening of the offending.

37. Basically, his offending as an adult has been in relation to the driving of motor vehicles, unlicensed, uninsured, unregistered or with illicit drugs present in the blood. In his favour is the lack of offences of violence in his criminal history, particularly as an adult. He has, previously to being arrested in respect of this offence, only spent three days in custody as an adult, although there was clearly some period of custody as a juvenile.

38. Also before the Court is a Sentencing Assessment Report under the hand of Tori Wotherspoon, dated 22 November 2021; a report from Dr Li Lian Koh, psychologist, dated 19 November 21; a letter from his mother, Deslene Anderson, dated 26 November 2021 which deals only with the possibility of where he might live if he was to be sentenced to an Intensive Correction Order.

39. In addition, the offender gave evidence on sentence which was to the effect that he had told the truth to the psychologist as to his past history, and in relation to how he felt what he had done to Mr Jones. He said, "I feel bad, I feel sorry", which is not overwhelming evidence of remorse or contrition.

26. However subjective matters are drawn from that material. I note Dr Koh says that “as a child he was exposed to domestic violence which likely contributed to the lack of development of adaptive and emotional regulation, coping and problem-solving skills. Mr Anderson likely has borderline intellectual functioning and has had difficulties with processing speed, communication and learning since childhood.” Therefore, when faced with stressful situations Mr Anderson would have reduced ability for judgment, problem solving and consequential thinking under pressure, which she identifies as attributing factors towards the offence. I note her use of the word "likely" in the description that I have just provided.

27. As to his family history, she says he was the only child from his biological parents. His father was absent from his life since birth. He was raised by his mother and grandmother, spending weekdays with his mother and weekends with his grandmother. He described both of them as pro-social and supportive in nature. Unfortunately, his mother re-partnered twice during his childhood, and he has six younger stepsiblings from those unions. He witnessed both his stepfathers perpetrating domestic violence towards his mother, particularly in circumstances where they were abusing marijuana and alcohol, to which he was exposed.

28. Since the age of 12, he felt responsibility for the safety of his stepsiblings and would take them out of the house when his stepfather became violent. He said that violence was common in his community during his childhood, often witnessing adults consuming alcohol and fighting, and that many of his peers had also experienced domestic violence.

29. As a child he was smacked with a stick or a broomstick by his stepfather when he misbehaved, although he denied any serious injury. When he was six years of age, his first stepfather attempted to hang himself and it was the offender who had found him, a circumstance in relation to which he later experienced flashbacks and nightmares as a child, which subsided over time.

30. As to his education, he was placed in a special education support unit in school as he had difficulties with speech, literacy, numeracy and concentration. As he grew older, he commenced getting into trouble; he was getting into fights with others and eventually he was expelled from school. He was unsure as to his highest attained grade level. However, he did attend classes during periods when he was placed in juvenile detention centres and enjoyed the individualised attention on those occasions.

31. After school he has been employed only twice: when he was approximately 25 years of age, his first job was at a meat works for approximately six months and his second job was doing labour work for a local council. However, he could not remember the reason for ceasing his first employment and he was apparently unable to maintain his second job. He has been unemployed since then and been in receipt of a disability support pension.

32. Having been expelled from school he moved away from home to live with an aunt who provided little parental oversight and he was not constructively occupied and started associating with antisocial peers, which I accept would explain his juvenile criminal history. However, he ceased associating with those peers when he was 18 years of age, and his first child was born. That also is consistent with his criminal history.

33. He has had some three romantic relationships and has children with all of his partners. He described his first romantic relationship as toxic as they were each emotionally and physically abusive towards each other and he blames her for encouraging him to drive her around in her brother's car when he did not have a licence. He has two children from that first romance but has had little contact with them. He has been with his current partner for approximately 11 years, and they currently have three children together and are expecting another child to be born this month.

34. He describes her as pro‑social and supportive. That support was indeed evident from her evidence as there were some aspects of her evidence which were supportive of him although simply unbelievable. That is, her claim that it was the victim who smashed the bottle and was using it as a weapon, which is inconsistent with any other witness.

35. At the time of his domestic violence matter in 2012 which I have previously referred to, he was then under the influence of alcohol and marijuana. He started abusing methylamphetamine in 2019 but his partner then left him as she disapproved of his substance abuse and because she had become pregnant. He formed a further relationship in the intervening period and there was another child produced from that relationship which only lasted for six months before he then returned to his current partner, who has apparently returned to Queensland where she lives.

36. He is said to began using marijuana daily since he was 15 years of age and currently on a weekly basis at the time of the report by the psychologist, although there have been occasions in the past where he has drunk alcohol until he was unconscious. He attended a rehabilitation centre for some three months to assist with his alcohol and marijuana use and he only apparently now consumes alcohol on a social base at a reduced amount. I note in that respect that his evidence at trial was that he had approximately four drinks at the hotel which is not in my view excessive consumption of alcohol.

37. As to the methylamphetamine he said he used it due to its popularity, but he ceased using it after some four months as he did not enjoy it as much as he perceived others did.

38. As to his mental health, I have already referred to his difficulties with speech, literacy and numeracy which are suggestive of a learning disorder, and I accept that. The psychologist found that it was likely that he has a borderline intellectual functioning but there has been no formal cognitive testing, so that cannot be confirmed. I have heard him speak with police officers on the evening of his arrest in the recorded video, and I have heard him give evidence in court. I would accept that he does not have a high level of intellectual functioning, whether that equates to a borderline intellectual functioning is a different question which cannot be answered in the absence of formal testing.

39. He is said to have been depressed between the ages of 26 and 28 and to have some suicidal ideation and attempted suicide on one occasion when he was 28 years of age, dousing himself with petrol and lighting a fire. Fortunately, the police and fire brigade arrived, and he was hospitalised only for two days before then being prescribed Seroquel to manage his mood.

40. The psychologist noted that his speech was slow, which was something I noted when he gave evidence in this matter. She provided a preliminary diagnosis of persistent depressive disorder with dysthymic syndrome, on the basis of his presentation and the history provided by him.

41. As to his depression, at the time of the report he was tested on the Depression Anxiety Stress Scale; he was found to be in the normal range for depression, the normal range for anxiety and the normal range for stress. It was posited that there may be some difficulty with those results due to his difficulties with comprehension.

42. The psychologist opined that long-term exposure to early life adversity can impact childhood brain development and disrupt an individual's ability to regulate response to stress. These difficulties with low self-esteem, emotional regulation and problem solving also likely contributed towards his persistent depressive disorder. She also noted that he had expressed remorse for his offending behaviours and did not appear to endorse pro-violence attitudes.

43. While there is a lack of background testing on the basis of which a firm diagnosis could be made, I accept that the psychologist's opinions have some reasonable foundation.

44. The Sentencing Assessment Report indicates that he has a close and supportive relationship with his family and by that I take it as referring to Ms Russ and the children, and at least his mother who has supported him during the trial. Under “Insight into the Impact of the Offending” it is stated,

"Mr Anderson identified the impact the offence has had on himself and his family, expressing his remorse towards his behaviour and despite Mr Anderson expressing his feelings of remorse he was unable to identify the impact the offence has had on the victim, claiming the victim provoked the offence".

59. As I have said, I have no doubt that there was some provocation by the victim, but it is a shame that the offender cannot recognise that what he did was entirely inappropriate whatever the level of provocation.

60. As to the risk assessment of re-offending it is said that he has been assessed at a medium risk of re-offending according to the Level of Service Inventory-Revised. In my view, taking into account his past history and particularly his criminal history, I have some difficulty in understanding why he would be assessed as a medium risk of re-offending if such an assessment related only to the risk of his re-offending in a violent way. In my view, in the light of his record he could not be assessed as more than a low to medium risk of re-offending in respect of violence.

61. I accept that the offender had a difficult childhood and that the matters that I have previously referred to support the submission made on his behalf by Mr Renard that the factors referred to in such cases as Bugmy and Fernando are relevant to the sentencing of this offender. I am unable to find that any persistent depressive disorder has any relevance to this matter: that is, that it is not in any relevant way causal of the offending. This appears to have been a spontaneous reaction to a circumstance of provocation in relation to which the offender lost control of himself and acted in a way which is uncharacteristic on the basis of the material that is before me.

62. Accordingly, I accept, consistent with Bugmy, that his moral culpability for this offending is reduced by those factors and accordingly also the need for the sentence imposed to provide for general deterrence. Nonetheless as I have said, this was a serious offence which resulted in serious, but fortunately not more serious, injury to the victim.

63. Taking all of those matters into account, including the fact of the early offer of a plea which entitles him to a 25% discount, while in my view the standard non-parole period remains relevant because the offender elected at trial to “roll the dice” on both charges rather than enter a plea of guilty to the alternative count as has been offered in the Local Court. Taking all of those matters into account, including the subjective matters that I have referred to, including the fact that although it was a defended matter and there is in my view no substantial evidence of remorse or contrition, I will however give the offender the advantage of being found to be genuinely remorseful and contrite. As I have said, in relation to the prospect of re-offending in my view there is at least a reasonable prospect that the offender will not re-offend and that provided with some assistance in the future that there can be a reasonable expectation of rehabilitation.

64. However, I am of the view that in the circumstances this matter crosses the s 5 threshold and I reject as inappropriate the submissions that were made on his behalf by Mr Renard as to the matter being dealt with by way of an Intensive Correction Order.

65. I note Mr Renard referred to or drew my attention to a single decision in this court of Judge Norrish QC of R v Lester [2020] NSWDC 642, (19 June 2020); however, I am of the view that this matter requires a more serious sentence to be imposed and of course a single sentence by way of comparison is not of much utility in relation to the sentencing process.

66. I have also had regard to the statistics that were provided by the Crown, and I have perused the online statistics that are available through JIRS. In those circumstances I have determined what I regard by way of the process of instinctive synthesis is an appropriate sentence.

67. Accordingly, Mr Anderson is sentenced in respect of the offence of reckless wounding as previously referred to. He is sentenced to a term of imprisonment of two years and six months. I find special circumstances based on this being the first real period of custody as an adult, and as I perceive it a need for a more extended period of supervision to assist him in rehabilitation and returning to lawful life in the community.

68. Accordingly, I will reduce the non-parole period from the statutory relationship of a 75% non-parole period to a 25% balance of term, to make the relationship one of 50%: that is, a non-parole period of half of the term of the sentence. Accordingly, he is sentenced to a non-parole period of one year and three months. That will be backdated by three days to take account of the period in custody from 14 March 2020 to 16 March 2020, which I note was wrongly referred to in the Crown sentence summary as two days but is in fact three days.

69. Mr Anderson is currently at liberty, having received bail at the conclusion of the trial. Accordingly, those are the only three days that he has spent in custody. He is not in custody today and what I intend to do is to impose a sentence which will in effect commence from tomorrow, requiring him to surrender himself at the Port Macquarie Police Station by 10am tomorrow morning.

Mr Renard, will that be possible?

RENARD: Your Honour, would it be possible for Mr Anderson to hand himself at the Casino Police Station tomorrow?

HIS HONOUR: Yes. That would be just as suitable, Mr Renard, if that's preferable.

RENARD: That's preferable from Mr Anderson's point of view, thank you, your Honour.

HIS HONOUR: I thought he was living in Port Macquarie at the moment.

RENARD: He's been bailed to reside in Casino; he's travelled down to Port Macquarie for today's proceedings.

HIS HONOUR: He's not staying in Port Macquarie tonight?

RENARD: No, he's intending to travel back.

70. HIS HONOUR: Okay, I have no problem with that. Then he is sentenced to a term of imprisonment of two years, six months with a non-parole period of one year, three months. The sentence will in effect commence from tomorrow, 3 December, backdated by three days, which will mean it commences on 30 November 2021. He will be first eligible for parole on 28 February 2023 and the balance of term is one year, two months and 29 days and the total sentence will expire on 29 May 2024.

71. For the purpose of commencing that sentence, he is to surrender himself to the Casino Police Station by 10am tomorrow morning. Of course, if he does not do so, Mr Renard, that will require some changing in the actual term of the sentence, but we will wait and see.

RENARD: Yes, your Honour.

72. HIS HONOUR: Mr Anderson, you will not necessarily be released on 28 February 2023. It is a matter for the authorities to determine. A significant matter in that respect is how you travel while in custody. If you manage not to breach any prison regulations and make an effort to take part in any program of rehabilitation such as anger management, or in particular use of drugs and/or alcohol, then the authorities will look more favourably on you and there is a high prospect in those circumstances that you will be released at the earliest opportunity, which is 28 February 2023. It really rests in your hands at this point. Is there anything else, Mr Renard or Mr Scully? Have I missed anything of significance?

RENARD: Your Honour, I just note your Honour referred to Mr Anderson being in a continuing relationship with Ms Russ. Your Honour, it's probably my failing in not making it clear but Ms Russ was the short relationship of some six months duration which was referred to in the report.

HIS HONOUR: Right, okay.

RENARD: So, he was in a relationship for some 11 years and there was a brief hiatus where he had a short relationship with Ms Russ, and he's returned to his former partner now.

HIS HONOUR: That may require some minor corrections to the reasons I've just given because of my inadvertent understanding of the sequence of the relationships but I'll do that when the reasons come in.

RENARD: Yes, your Honour, thank you.

HIS HONOUR: It doesn't make any difference to the actual sentence.

RENARD: Yes, I just wanted to note that, your Honour.

HIS HONOUR: No, thank you for pointing that out. No one actually spoke of the names of the various persons he's been involved in or who was part of the short-term relationship or not. I had assumed the child born to Ms Russ was the one being spoken of whereas there is obviously another child to his previous partner.

RENARD: Yes, that's right.

HIS HONOUR: Resurrected.

RENARD: Yes.

HIS HONOUR: Please, Mr Renard, make sure your client does the right thing and turns himself in tomorrow morning.

RENARD: Yes, your Honour.

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Decision last updated: 03 August 2023