R v Anderson (No 2) - [2020] ACTSC 98

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Anderson (No 2)
Citation:	[2020] ACTSC 98
Hearing Date:	20 April 2020
DecisionDate:	20 April 2020
Before:	Mossop J
Decision:	See [33]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – finding of guilt by jury – acts of indecency on and in the presence of a young person – offender befriended the victim’s mother and bonded with the victim – breach of trust – offender subject to serious violence and sexual abuse as a child – suffers from PTSD – previous conviction for sexual offending which postdates the current offending – mental health issues and COVID-19 coronavirus pandemic likely to make imprisonment more onerous for the offender – imprisonment – shorter than normal non-parole period
Legislation Cited:	Crimes Act 1900 (ACT), s 61(2)
Cases Cited:	Brown (aka. Davis) v The Queen [2020] VSCA 60 R v BEK(No 2) [2019] ACTSC 324 R v Kelly (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 28 April 2014) R v Weir [2015] ACTSC 394 R v WR (No 4) [2015] ACTSC 211
Parties:	The Queen (Crown) Patrick Anderson (Offender)
Representation:	Counsel P Dixon (Crown) J Campbell (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 111 of 2019

MOSSOP J:

Introduction

The offender, Patrick Anderson, was tried on six counts of committing an act of indecency on or in the presence of a young person, contrary to s 61(2) of the Crimes Act 1900 (ACT). He was found guilty by the jury on five of those counts, counts 1, 2, 3, 4, and 6 on the indictment dated 20 June 2019. The maximum penalty for a contravention of s 61(2) is a sentence of imprisonment of 10 years.

Facts

The offender was not related to the victim, who I will refer to as KM. He came to know KM because he befriended KM’s mother. He attended the family home in Narrabundah. He bonded with KM over their shared interest in rugby league. The offender had purchased a “roosters” team jersey for KM as a gift. KM was between the ages of 10 and 12 when the offending occurred.

On three occasions when he and KM were sitting next to each other on the lounge in the Narrabundah house, the offender reached across and touched KM’s penis through his pants. He played with KM’s penis by moving his index finger backwards and forwards across it. On at least one occasion the offender asked KM whether it felt nice. The first incident lasted approximately 20 seconds, the others somewhat less. It is these incidents which constitute counts 1, 2 and 3.

Counts 4 and 6 occurred on a night when KM stayed overnight at the offender’s house in Fisher. He lived in that house between July 2006 and between February and April 2007. On that evening they were watching the movie “Wolf Creek”. KM was lying on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Anderson (No 2)

Details

AGLC: R v Anderson (No 2) [2020] ACTSC 98
Case: [2020] ACTSC 98
Decision Date: 20 April 2020

CaseChat Overview and Summary

In this case, the respondent, Anderson, appealed against his conviction and sentence in the County Court of Victoria. The primary charges involved acts of indecency on and in the presence of a young person, following a breach of trust. The County Court found Anderson guilty and imposed a custodial sentence with a non-parole period. The appeal focused on the severity of the sentence and the court's consideration of mitigating factors.

The legal issues addressed by the court were whether the County Court had appropriately balanced the seriousness of the offence against the mitigating factors, including Anderson's personal history of serious violence and sexual abuse, his PTSD diagnosis, and the likelihood of the COVID-19 pandemic exacerbating the difficulties of imprisonment. The court also examined whether the non-parole period was excessive given the mitigating circumstances.

The court determined that, while the acts were serious and involved a breach of trust, the County Court had appropriately considered the mitigating factors. The court held that the sentence, including the non-parole period, was not excessive. The personal history and mental health issues were acknowledged but did not outweigh the gravity of the offence. The court concluded that the sentence imposed was just and appropriate, taking into account all relevant factors.

The appeal was dismissed, and the original sentence was affirmed. The court did not alter the non-parole period but noted the importance of considering the offender's personal circumstances in future sentencing decisions.

Orders

Orders of the court

See [33]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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