R v Andison - [2017] ACTSC 390

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Andison
Citation:	[2017] ACTSC 390
Hearing Date:	12 December 2017
DecisionDate:	12 December 2017
Before:	Penfold J
Decision:	See [38] to [46] below.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – damage property – fitness to plead issue – offender found fit to plead – unclear description of offender’s disabilities – clear mild intellectual disability and various behavioural difficulties – application of Verdins principles – reliance on support of EveryMan Australia in determining sentence.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), s 404(1)
Cases Cited:	R v Verdins [2007] VSCA 102; 16 VR 269
Parties:	The Queen (Crown) Daniel James Andison (Offender)
Representation:	Counsel Ms S McMurray (Crown) Ms H Hayunga (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 93 of 2017

The offences

Daniel Andison has pleaded guilty to two offences, as follows:

(a)arson, specifically, intentionally or recklessly damaging a building by fire; that offence arises under s 404(1) of the Criminal Code 2002 (ACT) and carries a maximum penalty including imprisonment for 15 years; and
(b)secondly, intentionally or recklessly damaging property belonging to someone else, specifically to the ACT Department of Housing and Community Services; that offence arises under s 403(1) of the Criminal Code and carries a maximum penalty including imprisonment for 10 years.

These charges arose from an incident on 16 November 2016, in which Mr Andison set two fires in the apartment to which he had been moved the previous day (one of eight in the apartment building). Mr Andison had set fire to the mattress in the bedroom, which had burnt down to the inner springs and appears to have produced a large amount of smoke, causing smoke damage throughout the unit. He had also started a fire on the window ledge above the kitchen sink, which damaged blinds hanging immediately above it, but then burnt out without causing other obvious damage.

Mr Andison has a mental disability. It seems that he was unhappy about being moved to the apartment concerned – it is not clear whether he had been unable to express his unhappiness in other ways or whether his complaints had been ignored. Mr Andison was interviewed by police in the presence of his father who is also his guardian. He told police that he had been angry about being moved to the unit and that was why he had set the fires. He said that usually when he is angry he goes for a walk.

Mr Andison was arrested on the night of the fire, and remanded in custody. He was granted bail on 24 April 2017, but was not able to be released until 4 May 2017, when accommodation that had been arranged for him was ready for occupation. He had, by that point, spent 169 days in custody.

Fitness to plead

At the committal hearing…

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 Andison

Details

AGLC: R v Andison [2017] ACTSC 390
Case: [2017] ACTSC 390
Decision Date: 12 December 2017

CaseChat Overview and Summary

The defendant, Andison, was charged with arson and causing damage to property. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the defendant's disabilities should impact the sentence. The court needed to determine the nature and extent of these disabilities and consider how they should inform the sentencing process, particularly in light of the principles outlined in Verdins and the role of EveryMan Australia.

The court examined the evidence presented regarding Andison's intellectual and behavioural disabilities. While there was a consensus that Andison had a mild intellectual disability and various behavioural difficulties, the specific details and implications of these disabilities were not entirely clear. The court applied the Verdins principles to assess how these disabilities should influence the sentence. It also considered the support provided by EveryMan Australia, an organisation that aids individuals with disabilities, in determining an appropriate sentence that would account for Andison's needs.

In its judgment, the court found that Andison's disabilities warranted a reduced sentence. The court concluded that the disabilities, though mild, were significant enough to warrant a sentence that took into account Andison's capacity and the need for support. The court balanced the severity of the crime against Andison's disabilities, ultimately deciding that a lesser sentence would be appropriate. The court also noted the importance of EveryMan Australia's role in providing ongoing support for Andison.

The court ordered a reduced sentence for Andison, taking into consideration his mild intellectual disability and behavioural difficulties. The precise details of the sentence were outlined from [38] to [46] in the judgment. The court emphasised that the sentence should reflect the need for support and rehabilitation, aligning with the principles of justice and the specific circumstances of Andison's case.

Orders

Orders of the court

See [38] to [46] below.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.