R v Anderson (No 2)
[2020] ACTSC 98
•20 April 2020
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 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 a mattress on the floor and the offender was on the couch behind him. The offender said to KM “I’ll give you 50 bucks if you come up and suck my dick” or words to that effect. The offender masturbated underneath a sheet and ejaculated on the sheets and said to KM words to the effect “oh, look, this is what comes out when you um, you finish”. KM could observe a wet patch on the sheets and what appeared to be the offender’s erect penis beneath it. This constitutes count 4.
When it was bedtime, they both went to a bedroom. There was conflicting evidence at the trial about whether there were two single beds or one double bed. It is not necessary to resolve that conflict. The offender went to a cupboard and pulled out a pink vibrating dildo. The offender pulled down his pants and inserted the dildo into his anus and started masturbating. He then gave the dildo to KM and suggested that he should try as well. KM felt under pressure to do what was suggested. He put it down near his anus but did not insert it. The offender left the room briefly. It is this conduct which constitutes count 6. There was then some conduct which KM described as the offender “making passes on me”, which he resisted. KM then requested or was offered a drink which he drank. The next thing that he could recall was that he woke up the next morning. When his mother arrived the next morning the offender and KM were both in the double bed in the offender’s daughter’s room. KM was asleep even though it was unusual for him to sleep in.
The evidence was suggestive of the possibility that KM had been drugged in some way that promoted sleep. However, that was not the subject of any charge, was not part of the Crown case and has not been proved beyond reasonable doubt.
Victim Impact Statement
The victim completed a victim impact statement. He described that he had enjoyed spending time with the offender, meaning that the conduct of the offender towards him was “confronting” and “made him confused”. He described the promise he made to himself to never tell anyone about the offender’s conduct, because he was embarrassed, thought he would not be believed, or may be blamed for what happened. Bottling this up caused school to be difficult for him. He struggled to be a reliable employee when he obtained a job. He continues to struggle with his mental health.
The statement also outlines the impact the offender’s conduct has had on his relationships. He feels that his struggles have negatively affected his mother and that he took out his anger on his younger brothers. The conduct of the offender and the victim’s desire to keep it a secret caused problems in a previous relationship.
The victim outlined that he has problems with alcohol, has been to rehabilitation on two different occasions, each for two-month periods and has been diagnosed with post-traumatic stress disorder (PTSD), anxiety and depression.
Objective seriousness
Each of the counts involves the serious exploitation of a relationship developed with a vulnerable child. KM was not only vulnerable because of his age. He was also vulnerable because the circumstances of his mother were not uncomplicated and made him more able to be befriended and less able to make any complaint about misconduct. Those circumstances also put his mother in a less confident position to call out any suspected wrongdoing on the offender’s part. Plainly enough, the offending constituted a gross breach of the trust placed in the offender by KM’s mother.
Counts 1, 2 and 3 each involved touching the victim’s genitalia. Although such touching can be seen as involving a serious example of an act of indecency, in the present case the touching was through the victim’s clothing and relatively brief. Having regard to the scope of s 61(2), it is at the lower end of objective seriousness for this offence.
Counts 4 and 6 involve serious acts of indecency in the presence of a young boy. Even though the acts were “in the presence of”, rather than “on” KM, that is, they involved no touching of KM by the offender, they involved significant sexual acts in the presence of a child whose age and circumstances were such that they were likely to be seriously harmful. They occurred at a time when KM was in the offender’s care.
Subjective circumstances
The offender is a 55-year-old man. His childhood was traumatic as he was exposed to, and the victim of, violence and sexual abuse. As a child he was often required to care for his two brothers and two sisters, due to his father’s alcohol abuse and his mother’s anxiety.
He completed Year 10 at school. He has held employment as a fruit picker, a cleaner, a race caller and in aged care facilities. His employment has been disrupted at various time due to caring responsibilities for his children and mental health reasons.
When his children were aged two years and four years he became their sole carer, when his relationship with the children’s mother ended. He raised them as a single father.
He moved from Canberra to Port Macquarie in 2007 where his children live. He has two grandchildren aged four and eight years.
His employment in aged care was terminated in 2009 when he was placed on the Child Sex Offenders Register in New South Wales due to other offences. He has been unemployed since 2011 and receives a Centrelink disability support pension. He has struggled financially in the past due to problematic gambling. He has debts to Centrelink and for traffic fines. He has been bankrupted twice.
The offender reported to the author of the pre-sentence report that he neither accepts nor rejects the details in the case statement, but has accepted the jury’s verdict. He is willing to complete programs or engage in counselling to address his offending.
The offender tendered a psychological assessment report by Dr Danielle Clout dated 13 April 2020. That report was significant because it discloses further significant subjective circumstances of the offender and makes diagnoses of his mental health conditions. The matters of most significance arising from the report are as follows:
(a)His father was a heavy drinker and extremely violent. When he was younger that violence was directed towards his mother but as he grew older it was directed towards him. His mother was on occasion violent towards him. He did not recall his parents showing warmth or affection towards him.
(b)He was very seriously sexually abused as a child by an uncle and other men. Other than to emphasise the gravity of the conduct it is not necessary to record the details. They are set out at paragraphs 12-14 of Dr Clout’s report. It is likely that this abuse had a very significant, long-term impact upon him. It is a tragic fact that, having been a victim of such dreadful abuse, he has now been found guilty of victimising a young boy himself.
(c)At school and in his early years of work he was subject to verbal and physical bullying and assault.
(d)He has a close relationship with his two adult children and his grandchildren who all live in Port Macquarie. His family is his most significant coping and protective factor in relation to his mental health conditions.
(e)He has had a significant problem with gambling and Dr Clout makes a DSM-5 diagnosis of Gambling Disorder.
(f)He suffers from Type II Diabetes.
(g)His developmental trauma has given rise to a condition which Dr Clout gives a DSM-5 diagnosis of PTSD.
(h)As a result of childhood abuse, serving a sentence of imprisonment in an all‑male environment will be more difficult for him than most.
(i)Following the breakdown of his relationship with the mother of his children, he has had multiple episodes of depression and Dr Clout diagnoses him as presently suffering Major Depressive Disorder, recurrent episode, severe.
(j)The Static-99R assessment tool placed his risk of reoffending as in the above average range. The SVR-20 assessment tool put his risk of sexual violence as being in the low to moderate risk range.
Criminal history
Prior to the offending he has only convictions for minor matters not relevant to the present offending and therefore is entitled to some leniency.
In 2009 the offender was convicted of two offences committed between May and June 2007. They were offences of aggravated indecent assault upon a person under the authority of the offender and committing an act of indecency with a person 16 years or over. The offender was given a sentence of 18 months’ imprisonment on the first charge and nine months’ imprisonment on the second charge. Both sentences were suspended upon entering into a bond.
By reason of those convictions the offender was burdened with certain reporting obligations. In 2011 he failed to comply with those reporting obligations and was given an eight month suspended sentence of imprisonment. He again failed to comply with them in 2013 and was given a bond.
The offending which postdates the offending in this case is relevant insofar as it discloses that the offending in the present case was not an isolated incident and he has not demonstrated good character in the period since that offending.
Time in custody
Following his conviction the offender’s bail was revoked. The offender has spent 45 days in custody in relation to the current offences. The backdate date is 6 March 2020.
Consideration
The offences, particularly counts 4 and 6, were objectively serious. They involved the exploitation of the youth of the victim and a gross breach of the trust placed in the offender by the victim’s mother.
There has been a substantial delay in prosecuting the offender. That was not a result of fault on anybody’s part. It is a common feature of this type of offending that victims only make complaints many years after the event. In cases involving such delay, where the offending is ultimately established the delay can provide an offender with an opportunity to point to many years of lawful conduct after the offence which may be to the offender’s benefit on sentence. However, in this case the offender’s record demonstrates the opposite, namely, convictions of a similar nature for offending occurring shortly after the offending in the present case and then breaches of reporting obligations arising out of those convictions. Clearly general and specific deterrence, denunciation and recognition of harm done to the victim are important sentencing considerations. So too is rehabilitation, to the extent that it can be achieved, either in custody or subject to supervision.
In determining the appropriate sentence it is necessary to take into account the most unfortunate personal circumstances of the offender, particularly the history of sexual abuse which he suffered, and to take into account the additional burden that he will suffer from a sentence of imprisonment as a result of the mental health conditions from which he suffers.
I was referred by the Crown to a number of cases involving acts of indecency upon young persons. Most useful of those decisions are 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; and R v BEK (No 2) [2019] ACTSC 324. I have had regard to those decisions as reflecting current sentencing practice.
Counsel for the offender provided written submissions in relation to the effect of the COVID-19 pandemic upon the sentencing of the offender. They were of limited assistance having regard to the fact that they appeared to be generic submissions prepared without regard to the individual circumstances of the offender’s case. The submissions put were that the COVID-19 pandemic should be taken into account when considering:
(a)the impact of health issues upon a sentence;
(b)the hardship faced by prisoners arising from the banning of personal visits;
(c)the hardship of prisoners’ families arising from having limited access to their loved ones whilst in custody;
(d)safety of prisoners in custody; and
(e)the state of “uncertain suspense” created for prisoners by the existence of the pandemic.
In sentencing the offender I have taken into account the existence of the pandemic. In particular, I have taken into account the fact that conditions in relation to visits are somewhat more restrictive at present. That may have some effect in relation to the capacity of the offender’s aunt to visit him. Because of their place of residence, visits by his children and grandchildren were not likely to be frequent, even in the absence of the pandemic. I also take into account the possibility that conditions will become more restrictive if cases of COVID-19 occur amongst the detainee population or the staff of the prison. Plainly, the position is one where the situation is evolving. At present the situation appears to be somewhat less dire than perhaps it did when Priest and Weinberg JJA addressed the matter in Brown (aka. Davis) v The Queen [2020] VSCA 60 at [48]. However, I accept that the position may well change. There is evidence, as would be expected, that significant steps are being, and will be taken, in relation to management of the risk of COVID‑19 within the prison, the management of cases if they occur within the prison and the management of detainees who because of immunosuppression, age or chronic illness are more vulnerable to adverse consequences of the disease. I accept that the offender is at greater risk of COVID-19 because he is a smoker and that his diabetes may create some greater degree of risk. I accept that the existence of the pandemic is something which will cause additional stress to prisoners and their families in any event. The inability to take steps himself to manage the risk of infection will be an additional aspect of the disempowerment arising from imprisonment.
It is very clear that, having regard to the available alternatives, no sentence other than a sentence of imprisonment is appropriate. Further, the nature and seriousness of the offending means that only a sentence of full-time detention is appropriate. I will allow a degree of concurrency between the counts to reflect the close temporal association between counts 4 and 6, and in order to reflect issues of totality.
On count 1 a sentence of six months’ imprisonment will be imposed. On count 2 a sentence of six months’ imprisonment will be imposed, cumulative as to two months upon the previous sentence. On count 3, a sentence of six months’ imprisonment will be imposed, cumulative as to two months upon the previous sentence. On count 4, a sentence of 16 months will be imposed, cumulative as to 12 months upon the previous sentence. On count 6 a sentence of imprisonment of 22 months will be imposed, cumulative as to 12 months upon the previous sentence. This gives an aggregate sentence of two years and 10 months. The non-parole period will be 18 months. That is a somewhat shorter than usual non-parole period, but that in my view is justified having regard to the evidence of Dr Clout in relation to the burden of imprisonment upon the offender.
Orders
The orders of the Court are:
1. On count 1 the offender is convicted and sentenced to six months’ imprisonment commencing on 6 March 2020 and ending on 5 September 2020.
2. On count 2 the offender is convicted and sentenced to six months’ imprisonment commencing on 6 May 2020 and ending on 5 November 2020.
3. On count 3 the offender is convicted and sentenced to six months’ imprisonment commencing on 6 July 2020 and ending on 5 January 2021.
4. On count 4 the offender is convicted and sentenced to 16 months’ imprisonment commencing on 6 September 2020 ending on 5 January 2022.
5. On count 6 the offender is convicted and sentenced to 22 months’ imprisonment commencing on 6 March 2021 and ending on 5 January 2023.
6. The non-parole period of 18 months commences on 6 March 2020 and ends on 5 September 2021.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 30 April 2020 |
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