R v McAnally

[2022] NSWDC 752

District Court

New South Wales

Medium Neutral Citation:

R v McAnally [2022] NSWDC 752

Hearing dates:

28/3/22, 4/4/22

Date of orders:

4/4/22

Decision date:

04 April 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

For each offence, convicted and sentenced to a Community Corrections Order for 2 years 6 months, to date from today. In addition to the standard conditions, the following conditions are to apply:

1. Accept supervision from Community Corrections.

2. Engage in psychological or other counselling or treatment as directed by Community Corrections.

Catchwords:

Crime – Sentence – Being a party to the commission of an act of indecency with a male person – historical offences

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Des Rosiers v R (2005) 159 A Crim R 549

R v MJR [2002] 54 A Crim R 368

R v PGM (2008) 187 A Crim R 152

R v Sopher (1993) 70 A Crim R 570

R v Todd [1982] 2 NSWLR 517

Category:

Sentence

Parties:

NSW DPP – Crown
Francis William McAnally - Offender

Representation:

Ms Gomez for Crown
Ms Scoufis for Offender

File Number(s):

2020/151219

Publication restriction:

Non publication of the identity of the complainant

Judgment

1. The offender, Mr Francis McAnally, is for sentence in relation to two offences under the now repealed s 81A of the Crimes Act 1900, those being offences of being a party to the commission of an act of indecency with a male person. The maximum penalty for each offence is two years imprisonment. The maximum penalty is, of course, an important guidepost or yardstick in the sentencing exercise to which I have had regard.

2. Mr McAnally pleaded guilty at the earliest opportunity and I, therefore, will allow a 25 per cent discount on account of the utilitarian value of that plea.

FACTS

3. The facts are agreed and are as follows. I note, before I recite the facts, that there is a statutory non-publication prohibition against anything which might identify the victim.

4. Around 1997, the victim, DG, was aged about 14 years and moved with his mother and father to an address in Corlette. The offender, Mr Francis (Frank) McAnally, then aged 31, was residing in Government Road, Nelson Bay and worked with the victim’s father around that time. The offender visited the home of the victim in Corlette not long after the victim’s family moved to the Nelson Bay area. The offender and the victim’s father were in the downstairs rumpus room, drinking longnecks of beers and smoking marijuana. The victim joined them and sat on the floor and listened to them talk about their service in the Vietnam War, and work.

5. The victim was offered a beer by his father. The victim went to a downstairs beer fridge and took out a longneck of KB brand beer. The offender rolled another joint of marijuana and offered it to the victim. The victim smoked the joint and remembers it really knocked him around and the offender told the victim that he had a boat and asked the victim if he would like to go fishing.

6. A few weeks later, the offender and the victim went fishing towards Broughton Island and during the boat trip the offender talked about himself and his days in the Vietnam War as a soldier and Armoured Personnel Carrier driver.

7. That brings me to the facts of the first offence, which is the sequence 4 matter. A few weeks later, the victim went fishing with the offender again. They left about 7am. When they returned, the offender and the victim went to the offender’s house. They had been drinking beer on the boat and the victim had consumed two or three beers while on the boat.

8. At the offender’s house, the victim consumed some more beers and some marijuana. They both were sitting on a lounge in the living room and talking. The offender was talking about his Vietnam days. After about an hour, the offender asked the complainant to come into his bedroom and when they were in the bedroom the offender took off his pants and underwear and laid on the bed. The victim could see that the offender had an erection.

9. The offender asked the victim to “wank him off”. The victim sat next to him on the bed and took hold of the offender’s erect penis in his hand and he then moved his hand up and down on the offender’s penis until he ejaculated into a towel near the bed. This took about five minutes.

10. The victim used to stay at the offender’s house quite regularly on weekends. The victim disliked being at home, as his mother and father were violent and abusive. He sought refuge, therefore, in the offender’s house.

11. That brings me to the facts of the second offence, which is the sequence 5 matter. Not long after the first incident, the victim went to the offender’s house on a weekend, around midday and they drank some more beers. They had not been on the boat that day. The offender asked the victim to come into the bedroom. He then laid down on the bed with no pants on and had an erection.

12. The offender, again, asked the victim to “wank him off”. The victim moved his hand up and down the offender’s penis, which went on for about 10 to 15 minutes, after which the offender grabbed a towel and ejaculated into it.

13. In about 2019, in other words about 42 years after the offending, the victim and his partner went to visit a friend in Nelson Bay, who lived near the offender’s old house. The victim pointed to the house and said to his partner, “I used to pull a guy off who lived there.” The victim named the offender, Mr McAnally. Ultimately, the victim made a statement to police on 14 March 2019.

14. On 8 January 2020, police were granted a surveillance device warrant to intercept and record telephone communications between the victim and the offender. The facts record that the offender made partial admissions to the offending in one or other of those telephone conversations.

15. On 20 May 2020, the offender was arrested and participated in a record of interview with investigating police and told police that he had entered the Army in 1966 and went to Vietnam in 1968. He said he was wounded in the war in 1969 and discharged in February 1970.

16. After the war, he was prescribed anti-depressants and Valium because he was having nightmares and was drinking heavily. He told police he did not recall the offences with the victim.

17. Those are the facts upon which I proceed to sentence.

OBJECTIVE SERIOUSNESS

18. It is necessary, of course, that I make an assessment of the objective seriousness of the offences and, in that regard, I make the following comments and findings.

19. As is well known, sexual offending against children is regarded with extreme disgust in our community. In recent decades this has become particularly so because of the acceptance in the community and by courts of how common and how damaging such offences are. The effects on victims of child sexual abuse are often life-long and, in many cases, lead to significant psychological issues, including anxiety, difficulty trusting others, a fractured sense of self-worth, and often self-blame, even when the victim, as in this case and as in virtually all cases, is completely innocent of any blame at all.

20. In recognition of the harm that such offences usually involve, s 25AA of the Crimes (Sentencing Procedure) Act 1999 requires the court to sentence the offender in accordance with current sentencing patterns, rather than those which applied at the time of the offences. The section also requires the court to have regard to the trauma of sexual abuse on children, as understood at the time of sentencing.

21. In doing so, however, the court is, of course, bound by the maximum penalty for the offence as it stood at the time, which is an important guide post or yardstick.

22. The offences before the court all involve the now repealed s 81A of the Crimes Act 1900. In assessing objective seriousness, I take into account the fact that at the time of these offences the offence under s 81A included a wide range of conduct, some of which would not today be an offence, but others, especially those involving children, which would fit within very different statutory offence categories and would carry much higher penalties today than they did in the 1970s.

23. In keeping with the acceptance of and the prevalence and seriousness of child sexual abuse, the courts have acknowledged a change in community attitudes for such offences and have emphasised the need for serious punishment to be imposed. As was said by then President of the Court of Appeal, Keith Mason, in R v MJR [2002] 54 A Crim R 368, the pattern of increasing sentences for child sexual assault “has come about in response to greater understanding about the long-term effects of child sexual abuse, as well as by a considered judicial response to changing community attitudes.”

24. In assessing the objective seriousness of the offences before the court, one of the important factors is the nature of the sexual act involved (see R v PGM (2008) 187 A Crim R 152 (at para 26).

25. ach case, of course, must be considered in light of its own facts and, while the nature of the sexual act is important, it is not the sole consideration. However, I must take into account a range of factors, including how the offences took place, their character, the age difference between the victim and the offender, the duration of the offence and the effects on the victim. Generally speaking, the younger the child the more vulnerable and defenceless he or she will be and, accordingly, the more serious the criminality.

26. In this particular matter, the Crown identified three particular aspects which it argued should inform my assessment of objective seriousness. Firstly, that an offence under s 81A did not require that the victim be a child. Rather, an offence under s 81A in the 1970s could be committed between any two male persons, whether in public or in private. In those circumstances, the Crown submitted that the age of the victim, at around 14 to 15 years, was a significant aggravating factor. I accept that this is so. In other words, the fact that the victim was a juvenile increases the objective seriousness of the offence.

27. A somewhat related consideration that I have also taken into account is the age difference between the victim and the offender, which was fairly significant, the victim being aged 14 to 15 years and the offender being about 31 to 32 years of age.

28. Secondly, the Crown pointed to the fact that the offending involved the victim being required to touch the offender’s penis, skin on skin, over periods of time which cannot be described as “short”, the first offence being around five minutes and the second offence around 10 to 15 minutes. I also accept this submission.

29. Neither of the offences can be described as “brief” and the fact that the touching involved skin on skin contact with the offender’s penis to the point of ejaculation also increases the objective seriousness above that of a case which did not involve that sort of direct contact.

30. Thirdly, the Crown argued that, on the facts, I would find that the offences were committed when the offender was in a “parental type role”. Submissions on behalf of the offender, however, disputed this characterisation. On behalf of the offender, it was accepted that the offences did, to some extent, involve a breach of trust, although certainly not akin to that, for example, of a teacher or priest. The offender also accepted that the victim was vulnerable by reason of his age. However, the offender submitted that neither of these aspects, nor any other aspect, placed him in a parental type role.

31. Having considered the matter, I am not satisfied that the facts amount to a “parental” type situation. However, I do accept that there was an element of breach of trust. I also accept that the victim was vulnerable due to his age and due to his family circumstances, given that he often stayed at the offender’s home because of the abusive nature of his own home environment.

32. There is a significant degree of overlap between these various factors of trust and vulnerability. It is important, therefore, not to double count these factors. That is especially so regarding the vulnerable age of the victim, given that I have already taken this into account in recognition of the Crown’s first submission that I noted above.

33. On the other hand, the offences did not involve any gratuitous cruelty beyond that inherent in the offences themselves and did not involve the offender doing anything to the victim’s body or requiring him, for example, to undress.

34. I also accept, as is submitted on behalf of the offender, that the offences were not planned or organised. Rather, in my view, they arose spontaneously in circumstances where the offender was affected by alcohol and/or cannabis and also affected by his excessive and relatively high dose Valium usage at that time.

35. Voluntary ingestion of prescription drugs, alcohol and cannabis ordinarily provide no mitigation (see s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999). However, they can provide context and some explanation for the commission of out of character offences like these.

36. I am, however, satisfied on the balance of probabilities that the offender’s use of prescribed Valium at a relatively high dose arose directly from his Post-Traumatic Stress Disorder condition, and that this drug and his PTSD contributed, in part, to the offending.

37. I am further satisfied that his PTSD and heavy Valium usage contributed also to his abuse of alcohol and cannabis, which also played a part in the offending, in circumstances where his Valium usage arose directly from his PTSD. I am also satisfied that both of these contributed to his alcohol and cannabis abuse in circumstances where he, like many returned Vietnam veterans, had available to them no real support or treatment for the ongoing effects of the war experience.

38. I am satisfied that his PTSD and Valium usage and, to some extent, his alcohol and cannabis usage operate to reduce the objective seriousness of the offences to a material degree.

39. Having regard to all the facts and the various matters I have noted, I assess the objective seriousness of each of the offences as being around the mid-range, but not above it.

40. A Victim Impact Statement was placed before the court, supported by letters from the victim’s GP and psychologist. The Crown indicated that it did not rely on the contents of the Victim Impact Statement as aggravating the offences and I do not treat it that way.

41. Nonetheless, the contents of the Victim Impact Statement and the supporting material confirm that the victim has been, like many or most victims of such crimes, left with long term effects, including problems in his personal relationships, difficulty trusting others and a lasting sense of shame. As I have said, I do not treat the contents of the Victim Impact Statement as aggravating the offences, but it provides confirmation of the presumption that offences like these will usually, if not always, have negative consequences for victims which often will be life-long.

SUBJECTIVE MATTERS

42. I turn then to subjective matters relating to the offender himself.

43. He is now 76 years of age. He has no relevant criminal history. He was born in Coffs Harbour and raised in the Woolgoolga area, the eldest of seven siblings and is of Aboriginal heritage. Although he described his childhood as “tough”, with some financial struggles, he was generally well cared for and did not experience a family life involving domestic violence, mental health oR substance abuse issues.

44. He was seriously affected by his father’s sudden death in 1974, when the offender was only in his late 20s. He remains very close with his mother, who is now 97 and to whom he plays a significant supportive role.

45. After leaving school, he worked a variety of jobs before being conscripted into the Army, although he later signed up as a regular Army soldier. He was sent to Vietnam in 1968 where he served about 13 months as a driver of an armoured personnel carrier. While in Vietnam, he endured, like many service personnel, serious stress and dangerous and traumatic situations. He described some of these in his evidence before me, including an incident in which his group came under heavy mortar fire and one of his best mates and a number of others were killed.

46. He described another incident where he and his patrol were ordered to fire on a boat travelling on the river, which was later found to contain children and women, rather than enemy combatants. The offender described to the psychologist his memories of pulling 10 year old children out of the river.

47. The offender, while in Vietnam, was also exposed to Agent Orange and still suffers skin reactions related to this. He also contracted Malaria and, as is usual with that disease, experienced recurrent episodes on his return to Australia.

48. He suffered a head wound in another incident and was admitted to the Australian Army Base Hospital at Nui Dat, where fragments of shrapnel were removed. After being in hospital for about seven days, he was returned to active service. He also suffered other injuries which he described in his evidence, including a crushed elbow which required three operations.

49. Upon his return to Australia, he shared the common experience of many or most Vietnam veterans of being shunned and abused by members of the public and some media, given the serious protests that were a feature of the latter part of the 1960’s and early 1970’s.

50. The offender explained in his evidence last week that, because of the protests, he and his returning companions were told not to wear uniforms and were not permitted to become members of many RSL clubs. He experienced being called a murderer and a child killer.

51. On his return to Australia he received no mental health services and it was not until the late 1980’s that he received any counselling, which was through the Vietnam Vets Counselling Service, now known as ‘Open Arms’. After his service in Vietnam, the offender had difficulty obtaining work, in part due to his struggles arising from PTSD relating to his Vietnam service and his resultant abuse of alcohol and Valium. He also developed a serious problem with Valium, which he was prescribed by his GP in about 1970, apparently without appropriate warnings as to its addictive properties and he continued on Valium for about 15 years, before being weaned onto other drugs.

52. He has not had paid employment since the 1980’s and in about 1985 or 1986 he was granted a pension due to total and permanent impairment. A report of psychologist, Dr Gilligan, the contents of which were not challenged and which were affirmed by the offender in evidence, concludes that the offender’s PTSD has had a “profound” impact on him, an assessment which I accept.

53. The offender has no children but did marry in 1981 and lived with his wife, Laurel, for about seven years, after which they lived separately but continued in a romantic relationship until Laurel died suddenly about 20 years ago. As noted by the psychologist, her death was very hard for the offender and his bereavement was quite protracted.

54. The offender has a history of regular suicidal thoughts and a suicide attempt in 1987, although since then has not formed any specific plans. His suicidal thoughts returned upon being charged with these offences and, as a result, he sought assistance from a counsellor, whom he has been seeing for about two years, with fairly good effect. The geriatrician, Dr Yap, notes that it is the offender’s devotion to his mother that is the reason that he does not suicide.

55. The offender has a long history of medical problems, as noted in the report from geriatrician, Dr Yap and confirmed by the offender in evidence. These include rheumatoid arthritis, osteoarthritis of spine and neck, bursitis in both shoulders, atrial fibrillation, enlarged prostate, high cholesterol and diverticulitis, involving episodes of abdominal pain and rectal bleeding.

56. In the last 12 months, he has also suffered falls on two occasions. In September 2021 he was diagnosed with thyroid cancer and has had a total thyroidectomy. However, as there was some residual disease, he continues on treatment and is subject to regular monitoring and reviews, given the risk of this cancer returning.

42. Given his range of medical problems, the offender is required to take about 12 different medications on a daily basis, with another half dozen also as and when required. I accept that the offender’s mental condition and his age and various medical conditions would make any period of incarceration much more difficult than for a younger and healthier man.

43. While ordinarily the Department of Corrective Services has responsibility for providing for health care of prisoners, the Court of Criminal Appeal confirmed in R v Sopher (1993) 70 A Crim R 570 that, “If gaol is significantly harder for a person because of difficulties due to health and age, this would be a relevant matter to take into account.”

44. The offender currently lives in rented accommodation which he shares with his 52 year old nephew, who is a significant support to him. As I have noted, he is very close to his 96 year old mother, who remains living independently and with whom the offender has regular contact. These social supports are obviously important and provide the offender with some level of stability.

45. The offender told police that he did not recall the offences and he said the same thing in his evidence before me, which was not challenged by the Crown in cross-examination. In my view, the fact that the offender was taking a fairly heavy dose of Valium at the time of the offences and was also affected by alcohol and/or cannabis provides support for his evidence that he does not recall the offences, evidence which I accept.

REMORSE

61. However, and notwithstanding that he has no recollection, the offender accepts responsibility for the offences. He also accepted responsibility and expressed remorse to the psychologist. In evidence before this Court, he confirmed that the Victim Impact Statement had been read to him and that he accepts that the victim’s life must have been “terrible”, especially given that he speaks about PTSD, which the offender noted that he himself suffers.

62. Having regard to this evidence and having observed the offender in court, I am satisfied that he has demonstrated very real and genuine remorse and regret for his actions.

REHABILITATION

63. In terms of the offender’s prospects for rehabilitation, in my view his rehabilitation has already occurred, as it has been approximately 44 years since the offending, during which the offender has committed no offences of any kind. I agree with the psychologist’s assessment, that the offender’s risk of reoffending is negligible. Given his age and blameless existence, both before and since the offending, his risk of committing any offence, sexual or otherwise, is, in my view, practically non-existent.

DELAY

64. There has been, obviously, a very substantial delay in this case. On its own, delay is not a mitigating factor. Also, this is not a case, like some, where the offender has been left in a state of uncertain suspense for a long time as to what will happen to him. That is so because he has no recollection of the offences.

65. Of course, it is not uncommon in cases of child sexual assault for there to be delay and sometimes very significant delay. That is, in part, because there may be good reasons why the victim of a child sexual offence may delay or refrain from making a complaint, sometimes, due to trauma or embarrassment, sometimes because they think no one will believe them and for various other reasons. The mere passage of time between an offence and the arrest and charging of the offender will, in most cases, be therefore of little weight in terms of mitigation.

66. However, and as then Chief Justice Sir Lawrence Street, said in R v Todd [1982] 2 NSWLR 517, at p 519:

“Sentencing for an old crime requires a considerable measure of understanding and flexibility and the passage of time, when lengthy, will often lead to considerations of fairness to the offender in his present situation in life playing a dominant role. In this regard, fairness requires that weight be given to the progress of the offender’s rehabilitation since the offending.”

67. In my view, the offender’s current situation and his completely blameless and crime-free life over more than four decades since the offending is a matter that ought to be given considerable weight in the sentencing exercise. This is a case of complete rehabilitation over that time. Indeed, in some ways it is misleading to speak of rehabilitation of the offender over that time because, in my view, these offences were aberrations which arose in circumstances, as the psychologist suggests at para 52, where the offender’s mental state was affected by his PTSD, combined with excessive benzodiazepine and alcohol use which were themselves linked to his mental condition.

68. I accept, as the psychologist concludes, that it is likely the offender’s mental disorder contributed to the commission of the offences in a material way. The combination of alcohol, Valium and, on the occasion of the first offence, cannabis, also, to my mind, goes to explain why the offender has no recollection of the offences, a matter that he was not challenged about in cross-examination.

69. In my view, it is most unlikely that these offences would have been committed in the absence of the offender’s mental condition and its associated substance abuse. That conclusion is supported not only by the conclusion of the psychologist but by the fact the offender has committed no other offences in his 76 years of life.

70. I have had regard to the purposes of sentencing, in particular the terms of s 3A of the Crimes (Sentencing Procedure) Act 1999, which of course involve the importance of adequate punishment, of deterring the offender and others, of protecting the community and making the offender accountable, of denouncing his conduct, of recognising the harm done to the victim and to the community, but also the importance of promoting the rehabilitation of the offender.

71. It was submitted by the Crown that the s 5 threshold in that same Act is crossed for each offence and that a period of imprisonment is the only appropriate penalty. In making that submission, the Crown pointed to the fundamental importance of general deterrence in sentencing for offences of this kind, especially those involving a child. I accept beyond question the great importance that deterrence, both personal and general, must ordinarily play in sentencing for sexual offences involving children.

72. However, it seems to me that in this case personal deterrence is of much reduced relevance, given the uncharacteristic and aberrant nature of the offences and the offender’s complete and total rehabilitation and otherwise blameless life.

73. I am also of the view that general deterrence is of reduced importance in this particular case. This was, in part, quite fairly acknowledged by the Crown who submitted that I might appropriately moderate this aspect of the sentencing synthesis, by considering whether this offender is an appropriate “vehicle” for general deterrence.

74. In my view, given my conclusion that the offences were, in large part, a product of the offender’s PTSD and its associated benzodiazepine and other drug misuse, this is a case where the importance of general deterrence is significantly reduced.

75. The offender’s age and ongoing health problems were matters that loomed large in the submissions in this case. I am very conscious, however, that ordinarily these sorts of considerations would not lead to a non-custodial sentence, if a custodial sentence was otherwise warranted.

76. In R v Sopher (citation previously noted), the Court of Criminal Appeal said, at p 573:

“Health and age are relevant to the length of any sentence, but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example, a person may have but a short period to live or need intense treatment which cannot be provided in gaol. There may be circumstances where to keep a person in gaol would probably lead to his early death and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life. The Department of Corrective Services has the responsibility of providing for health care. But, there may be cases where what is required on a permanent basis extends beyond what it can provide and can be expected to provide. In almost all cases, what the Department is able to offer will suffice. If gaol is significantly harder for a person because of difficulties due to health and age, this would be a relevant matter to take into account.”

77. As was noted by the court in that passage, much depends on the circumstances and an appropriate balance has to be maintained between the criminality of the conduct and other factors. Undue emphasis should not be placed on the subjective factors of the offender’s age and health at the expense of other matters, such as the objective seriousness and the importance of deterrence (see Des Rosiers v R (2005) 159 A Crim R 549).

78. In having regard to these principles, I have not overlooked the fact that each of the decisions I have quoted were decided before the introduction of s 25AA of the Crimes (Sentencing Procedure) Act 1999 which requires me to sentence in accordance with sentencing patterns and practices today, rather than those in the late 1970’s and, indeed, those at the time of the decisions to which I have just referred.

79. However, the principles I have noted and the need for the court to engage in a balancing exercise, nonetheless, continue to apply.

80. As I have already noted, I accept the proposition that, ordinarily, a prisoner’s health care is a matter to be determined and looked after by the Department of Corrective Services. However and as noted in one of the passages to which I have just made reference, there will be cases and it seems to me that this is one, where the range of medications that the prisoner would require if in custody is such that, combined with other treatment that is likely to be required, that a period of custody in this particular case would result in the offender receiving significantly less optimal treatment than he would receive should he remain in the community.

81. Having regard to all of the matters to which I have referred, I am satisfied that the s 5 threshold has not been crossed in this case. I have come to that view after considering all relevant matters and, in particular, the objective seriousness of the offences, the maximum penalty and the importance of deterrence, but balanced against the pleas of guilty, the offender’s age and health issues, his genuine remorse, the very substantial delay, his complete rehabilitation and my conclusion that he presents no risk of future offending.

DETERMINATION

82. Pursuant to s 8 of the Crimes (Sentencing Procedure) Act, instead of imposing a period of imprisonment, I impose a Community Correction Order for a period of two years and six months. I have chosen that period of time having regard not only to all of the matters, including the objective seriousness to which I have referred, but also to the comments of the psychologist, Dr Gilligan, at para 56 of his report, as to the need for the offender to receive specialised treatment over a lengthy period.

83. I impose the following conditions, the first two of which are standard conditions:

84. Firstly, that the offender be of good behaviour.

85. Secondly, that he appear before the court if called upon to do so at any time during the term of that Community Correction Order.

86. I impose two further conditions. Firstly, that he accept supervision from Community Corrections.

87. Secondly, that he engage in psychological or other counselling or treatment as directed by Community Corrections.

88. Mr McAnally, do you understand the terms of the order I have made is a Community Correction Order that will apply for two years, six months from today. It has four conditions, the first two of which are standard conditions, namely that you be of good behaviour, in other words you do not commit any offence. Secondly, that you appear before the court if called upon during the period of the order.

89. And two additional conditions, the first one being that you accept supervision from Community Corrections and the second one being that you engage in psychological or other counselling or treatment as directed by Community Corrections. Do you understand that?

90. I direct that Mr McAnally report to the Community Corrections Office at Newcastle.

91. Anything arising from any of my remarks?

92. SCOUFIS: No, your Honour, my friend just asked about an AVO. There’s no difficulty with that, however I think it was finalised in the Local Court.

93. HIS HONOUR: I understood there already was one in place.

94. SCOUFIS: Likewise. If your Honour would just pardon my back again?

95. Your Honour, there’s a record on my instructing solicitor’s file that it was finalised in the Local Court. I can’t say how long for, but it’s a matter for the DPP, if they want to relist it and have it dealt with.

96. GOMEZ: Your Honour, I was specifically asked to mention that, that’s all, for the imposition of an AVO. If it’s the case that there is currently one in place, then I will make some further enquiries and make sure that that is the case and then, if there is any difficulty, we can indeed relist the matter in the Local Court.

97. HIS HONOUR: All right, to the extent that I need to, I will give the parties leave to relist the matter before me for the purposes of any submissions or orders that I might need to make about Apprehended Violence Orders.

98. So I direct that Mr McAnally report to the Community Corrections Office at Newcastle within 48 hours. I think that will probably be initially by telephone.

99. SCOUFIS: It has been, your Honour but I’ll speak to him about those arrangements.

**********

Decision last updated: 18 August 2023