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R v Anning

R v Anning

Case [2014] NSWDC 359 30 May 2014

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Anning [2014] NSWDC 359
Hearing dates: 14/03/2014
Decision date: 30 May 2014
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Count 1 – Sentenced to a term of imprisonment of 3 years .
Count 2 – Sentenced to a term of imprisonment of 5 years .
Count 3 – Sentenced to a term of imprisonment of 1 year and 6 months.
Count 4 – Sentenced to a term of imprisonment of 5 years.
Count 5 - Sentenced to a term of imprisonment of 3 years.
Count 6 – Sentenced to a term of imprisonment of 1 year and 6 months.
Count 7 – Sentenced to a term of imprisonment of 3 years with a non parole period of 2 years and 6 months.
Count 9 – Sentenced to a term of imprisonment of 5 years with a non parole period of 1 year and 6 months .
Count 10 – Sentenced to a term of imprisonment of 5 years with a non parole period of 1 year and 6 months.
Count 11 – Sentenced to a term of imprisonment of 3 years with a non parole period of 2 years and 6 months.
Count 13 – Sentenced to a term of imprisonment of 1 year and 6 months .

Catchwords: Criminal – Sentence, buggery, attempted bestiality, act of gross indecency, homosexual intercourse.
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Mental Health (Forensic Provisions) Act 1990
Cases Cited: Bragias (1997) 92 A Crim R 330
DBW v R [2007] NSWCCA 236
R v Fahda [1999] NSWCCA 267
Fisher v R [2008] NSWCCA 129
R v Gilmour (1979) 1 A Crim R 419 at 419
R v JCW [2000] NSWCCA 209
Magnuson v R ([2013] NSWCCA 50
Mailes v R (2004) 62 NSWLR 181
R v Merritt [2000] NSWCCA 365
Mill v The Queen ((1988) 166 CLR 59
R v Moon [2000] NSWCCA 534
Pearce v R (1998) 194 CLR 610
R v Burg [2004] NSWCCA 300
R v Gavel [2014] NSWCCA 56
R v MJR [2002] NSWCCA 129
R v Thomas [2007] NSWCCA 269
R v Wilson [2005] NSWCCA 219
RHMcL v The Queen (2000) 203 CLR 472
R v Tadrosse [2005] NSWCCA 145
Todd ((1982) 2 NSWLR 517
Veen (No 2) v The Queen (1988) 164 CLR 465
Category: Sentence
Parties: Director of Public Prosecutions
Henry Alfred Anning - Offender
Representation:
Counsel:
Ms K Traille – Crown
Mr A Norrie - Offender
Solicitors:
Director of Public Prosecutions
Newtons Law - Offender

File Number(s): 2007/13848

SENTENCE

VIDEO LINK COMMENCED AT 2.14PM

HIS HONOUR: The prisoner, Henry Alfred Anning, appears today for sentence in relation to 11 crimes for which he was found guilty by judgment of myself, sitting as a judge alone, on 18 December 2013.
Nine of the counts were counts as pleaded in the indictment and two of the counts for sentence today are counts available as what might be called statutory alternatives. Originally…

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 Anning

Details

AGLC: R v Anning [2014] NSWDC 359
Case: [2014] NSWDC 359
Decision Date: 30 May 2014

CaseChat Overview and Summary

The case of R v Anning involved the appellant, who was charged with various criminal offences including buggery, attempted bestiality, and acts of gross indecency, among others. The case was heard in a court of criminal jurisdiction in Australia. The appellant was found guilty on multiple counts and the court was required to determine an appropriate sentence for each of these counts.

The legal issues that the court had to address included the severity and nature of the offences, the need for deterrence, and the protection of the community. The court had to consider the cumulative impact of the offences on the victims, the appellant's criminal history, and the need for rehabilitation. The court also had to balance these considerations with the need to impose a sentence that was proportionate to the seriousness of the crimes.

In delivering the judgment, the court carefully considered the evidence and submissions from both parties. The court acknowledged the gravity of the offences and the impact they had on the victims. It also took into account the appellant's background and the need for deterrence and rehabilitation. The court imposed sentences that varied in length and included non-parole periods for some counts, reflecting the severity of the crimes and the need to protect the community. The court ensured that the overall sentence was proportionate to the appellant's culpability and the harm caused.

The court ordered specific terms of imprisonment for each count, with varying non-parole periods where appropriate, to ensure a comprehensive and balanced approach to sentencing. The sentences ranged from one year and six months to five years, with non-parole periods set for certain counts to address the most serious offences and to ensure public safety.

Orders

Orders of the court

Count 1 – Sentenced to a term of imprisonment of 3 years .

Count 2 – Sentenced to a term of imprisonment of 5 years .

Count 3 – Sentenced to a term of imprisonment of 1 year and 6 months.

Count 4 – Sentenced to a term of imprisonment of 5 years.

Count 5 - Sentenced to a term of imprisonment of 3 years.

Count 6 – Sentenced to a term of imprisonment of 1 year and 6 months.

Count 7 – Sentenced to a term of imprisonment of 3 years with a non parole period of 2 years and 6 months.

Count 9 – Sentenced to a term of imprisonment of 5 years with a non parole period of 1 year and 6 months .

Count 10 – Sentenced to a term of imprisonment of 5 years with a non parole period of 1 year and 6 months.

Count 11 – Sentenced to a term of imprisonment of 3 years with a non parole period of 2 years and 6 months.

Count 13 – Sentenced to a term of imprisonment of 1 year and 6 months .

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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Citations

R v Anning [2014] NSWDC 359

Most Recent Citation

R v Collins, John [2017] NSWDC 281

Cases Citing This Decision

R v Lee, Ernest John [2018] NSWDC 109
Citation 1 (Para 64)

…ing this matter, had regard to judgments that I have delivered in relation to the sentencing of offenders for this period of time, such as R v Anning [2014] NSWDC 359, and a decision in the matter of Collins from 2017. Particularly of the various judgments I have had regard to is the decision of R S Hulme J in PWB…
R v Collins, John [2017] NSWDC 281
Citation 2 (Para 9)

…There is also the decision of Anning [2014] NSWDC 359, a decision of my own and a relatively recent decision of the Court of Criminal Appeal of R v Brown [2012] NSWCCA 199 concerning an Anglican priest or minister, with 27 counts for sentence and 20 matters on a Form 1, including two counts of buggery, many acts of…

See all citing cases →

Cases Cited

R v Todd [2024] NZHC 897
Citation 1 (Para 81)

…rt to the decision of Fahda [1999] NSWCCA 267 particularly paras [16], [17]. That decision discussed consideration of the principles set out in Todd ((1982) 2 NSWLR 517 – (at 519)), a New South Wales Court of Criminal Appeal decision, and the decision of Mill to which I earlier made reference, where there had been de…
R v Gavel [2014] NSWCCA 56
Citation 2 (Para 24)

…g from the evidence available in courts of these matters, and particularly the most recent judgment that I can find discussing this matter, R v Gavel [2014] NSWCCA 56 at [110]. To summarise what is in that judgment; child sexual offences, as these offences essentially are, to varying degrees have profound and delet…
Magnuson v R [2013] NSWCCA 50
Citation 3 (Para 39)

…context of what has been long held authority in this State, reflected in judgments such as R v MJR [2002] NSWCCA 129 and the judgment ( Magnuson v R ([2013] NSWCCA 50)) that was provided to me by the Crown.…
Fisher v R [2008] NSWCCA 129
Citation 4 (Para 11)

…used, with no disrespect to the Crown Prosecutor, that submission by the Crown was misconceived. One need only turn to the decision of Fisher v R [2008] NSWCCA 129, where the Court dealt with the issue of multiple acts in the context of a consideration of circumstances of aggravation such as those pleaded by the Cro…
R v Thomas [2007] NSWCCA 269
Citation 5 (Para 22)

…g [2004] NSWCCA 300, particularly at [48]-[49]; R v Wilson [2005] NSWCCA 219, particularly at [25]; and Basten J of the Court of Appeal in R v Thomas [2007] NSWCCA 269, particularly at [36]-[37].…
DBW v R [2007] NSWCCA 236
Citation 6

…00 Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Bragias (1997) 92 A Crim R 330 DBW v R [2007] NSWCCA 236 R v Fahda [1999] NSWCCA 267 Fisher v R [2008] NSWCCA 129 R v Gilmour (1979) 1 A Crim R 419 at 419 R v JCW [2000] NSWCCA 209 Magnuson v R ([2013] NSWCCA 50 Mailes v R (2004…
Tarrant v R [2007] NSWCCA 124
Citation 7 (Para 90)

…n in its written submissions, by reference to the High Court decision to which I referred, and other judgments, including the decision of Tarrant v R [2007] NSWCCA 124, submitted that so far as the general principles are concerned, the restraint of the “ceiling principle” was subject to a number of exceptions.…
R v Wilson [2005] NSWCCA 219
Citation 8 (Para 22)

…pose and value of victim impact statements discussed in a range of cases, including R v Burg [2004] NSWCCA 300, particularly at [48]-[49]; R v Wilson [2005] NSWCCA 219, particularly at [25]; and Basten J of the Court of Appeal in R v Thomas [2007] NSWCCA 269, particularly at [36]-[37].…
R v Tadrosse [2005] NSWCCA 145
Citation 9 (Para 63)

…Mr Norrie did take issue with the submission of the Crown relevant to s 21A(2)(m), and particularly referred to Fisher and the decision of Tadrosse [2005] NSWCCA 145 particularly at [28] and [29] to which I have had regard.…
R v Berg [2004] NSWCCA 300
Citation 10 (Para 22)

…has been a great deal of debate about the evidentiary purpose and value of victim impact statements discussed in a range of cases, including R v Burg [2004] NSWCCA 300, particularly at [48]-[49]; R v Wilson [2005] NSWCCA 219, particularly at [25]; and Basten J of the Court of Appeal in R v Thomas [2007] NSWCCA 269,…
R v Mailes [2003] NSWSC 707
Citation 11 (Para 96)

…In the decision of Mailes v R (2004) 62 NSWLR 181 at [32] it was observed that the purpose of a limiting term is not to punish the person who has been convicted of any crime but to ensure that he or she is not detained longer than the ‘maximum time the person could have been detained if convicted following a proper tr…
R v MJR [2002] NSWCCA 129
Citation 12 (Para 39)

…lar offending, and also approach the matter in the context of what has been long held authority in this State, reflected in judgments such as R v MJR [2002] NSWCCA 129 and the judgment ( Magnuson v R ([2013] NSWCCA 50)) that was provided to me by the Crown.…
R v Moon [2000] NSWCCA 534
Citation 13

…v R ([2013] NSWCCA 50 Mailes v R (2004) 62 NSWLR 181 R v Merritt [2000] NSWCCA 365 Mill v The Queen ((1988) 166 CLR 59 R v Moon [2000] NSWCCA 534 Pearce v R (1998) 194 CLR 610 R v Burg [2004] NSWCCA 300 R v Gavel [2014] NSWCCA 56 R v MJR [2002] NSWCCA 129 R v Thomas [2007] NSWCCA 269 R v Wilson [2005] NSWCCA 219 RHM…
R v Williams [2000] VSCA 174
Citation 14 (Para 87)

…Gilmour (1979) 1 A Crim R 419 at 419, and was essentially reaffirmed in the decision referred to by the learned Crown Prosecutor of RHMcL v The Queen (2000) 203 CLR 472 at [72].…
R v Merritt [2000] NSWCCA 365
Citation 15 (Para 88)

…is not intended to fetter the independent discretion of a sentencing judge, and there are a number of authorities, including the decision of Merritt [2000] NSWCCA 365 at [29] to that effect.…
R v JCW [2000] NSWCCA 209
Citation 16 (Para 11)

…on such as those pleaded by the Crown in its written submissions. That decision approved what the learned Chief Justice Spigelman had said in JCW [2000] NSWCCA 209, that in the proof of a course of conduct as occurs in this matter in relation to all of the victims, it was appropriate to take that into account only f…
Regina v Hawkins [2000] NSWCCA 434
Citation 17 (Para 43)

…In this regard I have particularly noted the decision of MJR ; I have had regard to the decision of Moon [2000] NSWCCA 434 and a number of the decisions set out in the various schedules. The Crown’s summary, which is identified as the “Public Defenders’” survey of sentences for homosexual intercourse with a male age…
R v Fahda [1999] NSWCCA 267
Citation 18 (Para 81)

…Learned counsel for the prisoner referred the Court to the decision of Fahda [1999] NSWCCA 267 particularly paras [16], [17]. That decision discussed consideration of the principles set out in Todd ((1982) 2 NSWLR 517 – (at 519)), a New South Wales Court of Criminal Appeal decision, and the decision of Mill to which…
Pearce v The Queen [1998] HCA 57
Citation 19 (Para 59)

…eferred. The appropriate approach to sentencing when dealing with multiple offences is set out essentially in the majority judgment of Pearce v R (1998) 194 CLR 610, particularly at [45].…
Mill v The Queen [1988] HCA 70
Citation 20 (Para 60)

…in light of decisions of the High Court and decisions following the High Court in this jurisdiction, particularly decisions such as Mill v The Queen ((1988) 166 CLR 59), relating to the totality of sentencing.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 21

…NSWCCA 219 RHMcL v The Queen (2000) 203 CLR 472 R v Tadrosse [2005] NSWCCA 145 Todd ((1982) 2 NSWLR 517 Veen (No 2) v The Queen (1988) 164 CLR 465 Category: Sentence Parties: Director of Public Prosecutions Henry Alfred Anning - Offender Representation: Counsel: Ms K Traille – Crown Mr A Norrie - Offender Solicitors:…

Legislation Cited

Crimes Act 1900 (ACT)
1 mention (from Para 4)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 21)
Mental Health (Forensic Provisions) Act 1990 (NSW)
1 mention (from Para 94)

Medium Neutral Citation:	R v Anning [2014] NSWDC 359
Hearing dates:	14/03/2014
Decision date:	30 May 2014
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Count 1 – Sentenced to a term of imprisonment of 3 years . Count 2 – Sentenced to a term of imprisonment of 5 years . Count 3 – Sentenced to a term of imprisonment of 1 year and 6 months. Count 4 – Sentenced to a term of imprisonment of 5 years. Count 5 - Sentenced to a term of imprisonment of 3 years. Count 6 – Sentenced to a term of imprisonment of 1 year and 6 months. Count 7 – Sentenced to a term of imprisonment of 3 years with a non parole period of 2 years and 6 months. Count 9 – Sentenced to a term of imprisonment of 5 years with a non parole period of 1 year and 6 months . Count 10 – Sentenced to a term of imprisonment of 5 years with a non parole period of 1 year and 6 months. Count 11 – Sentenced to a term of imprisonment of 3 years with a non parole period of 2 years and 6 months. Count 13 – Sentenced to a term of imprisonment of 1 year and 6 months .
Catchwords:	Criminal – Sentence, buggery, attempted bestiality, act of gross indecency, homosexual intercourse.
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Bragias (1997) 92 A Crim R 330 DBW v R [2007] NSWCCA 236 R v Fahda [1999] NSWCCA 267 Fisher v R [2008] NSWCCA 129 R v Gilmour (1979) 1 A Crim R 419 at 419 R v JCW [2000] NSWCCA 209 Magnuson v R ([2013] NSWCCA 50 Mailes v R (2004) 62 NSWLR 181 R v Merritt [2000] NSWCCA 365 Mill v The Queen ((1988) 166 CLR 59 R v Moon [2000] NSWCCA 534 Pearce v R (1998) 194 CLR 610 R v Burg [2004] NSWCCA 300 R v Gavel [2014] NSWCCA 56 R v MJR [2002] NSWCCA 129 R v Thomas [2007] NSWCCA 269 R v Wilson [2005] NSWCCA 219 RHMcL v The Queen (2000) 203 CLR 472 R v Tadrosse [2005] NSWCCA 145 Todd ((1982) 2 NSWLR 517 Veen (No 2) v The Queen (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions Henry Alfred Anning - Offender
Representation:	Counsel: Ms K Traille – Crown Mr A Norrie - Offender Solicitors: Director of Public Prosecutions Newtons Law - Offender
File Number(s):	2007/13848