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3
District Court 30 May 2014

R v Anning

[2014] NSWDC 359

Sexual offences
CRIMINAL

Citation: R v Anning [2014] NSWDC 359
Court: District Court of New South Wales
Date: 30 May 2014
Judge: Judge S Norrish QC

Background

The offender, Henry Alfred Anning, appeared for sentence on 11 counts following a judge-alone trial in which he was found guilty on 18 December 2013. The offences spanned a period from 30 September 1975 to 31 December 1990, involving multiple victims. The charges included two counts of buggery, one count under s 81A of the Crimes Act 1900, one further count of buggery involving a separate victim, one count of attempted bestiality, two counts of act of gross indecency with a person under 18, three counts of homosexual intercourse with a person aged between 10 and 18, and one count of attempted homosexual intercourse with a person aged between 10 and 18.

The matter had a lengthy procedural history. A special hearing under the Mental Health (Forensic Provisions) Act 1990 had been concluded in July 2009, at which time Acting Judge McGuire imposed limiting terms. The offender had been in custody since 29 April 2009. The sentencing proceedings before Judge Norrish followed the findings of guilt made at the December 2013 trial.

Victim impact statements were received from three of the victims. The court noted that one victim who had provided a statement in the earlier special hearing proceedings did not provide one for the present proceedings, and drew no adverse inference from that absence.

  • What sentences were appropriate for 11 counts of serious historical sexual offences involving multiple victims, given the applicable maximum penalties at the time of the offences and the absence of standard non-parole periods?
  • How should the court treat victim impact statements, particularly where the content of those statements had not been tested in cross-examination?
  • What weight, if any, should be given to the well-recognised harm caused to child sexual abuse victims when there are no standard non-parole periods applicable to the offences?
  • How should the court approach aggregate sentencing across multiple counts involving different victims and different categories of offence?

Decision

Judge Norrish identified the applicable maximum penalties for each offence as they stood at the time of commission. Buggery under s 79 carried a maximum of 14 years; attempted bestiality under s 80, five years; homosexual intercourse with a person between 10 and 18 under s 78K, 10 years; attempted homosexual intercourse under s 78L, five years; and acts of gross indecency under s 78Q(1), two years. The court confirmed that no standard non-parole period applied to any of the offences given when they were committed.

On victim impact statements, the court acknowledged the ongoing judicial debate about their evidentiary weight, particularly where the contents have not been tested. The court drew on the Court of Criminal Appeal's reasoning in R v Gavel [2014] NSWCCA 56 and observations by Spigelman CJ in DBW v R [2007] NSWCCA 236 to affirm that child sexual offences produce profound and long-lasting psychological harm to victims, a proposition well established in the courts regardless of the formal content of any individual victim impact statement. The court was careful to apply the beyond reasonable doubt standard to any matters of aggravation.

The sentencing judgment also addressed the delay between the December 2013 findings of guilt and the May 2014 sentence. The court explained that the delay arose from the judge sitting at Orange, an extended absence from the jurisdiction, and time taken to receive written submissions on a discrete legal issue. The court noted that it had endeavoured to sentence the offender at the first reasonable opportunity.

The offender addressed the court directly during proceedings, raising concerns about procedural history, medical evidence, and conditions in custody. The court acknowledged his comments but indicated that most matters raised were not relevant to the sentencing exercise, and invited the offender's counsel to address any matters of substance.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Historical sexual offences committed before the introduction of standard non-parole periods are sentenced according to the maximum penalties applicable at the time of the offence, with no standard non-parole period to anchor the exercise.
  • The District Court reaffirmed that child sexual abuse produces profound and enduring psychological harm to victims, drawing on a well-established line of authority including R v Gavel [2014] NSWCCA 56 and DBW v R [2007] NSWCCA 236, and the court may recognise that harm even where individual victim impact statements do not canvass it in detail.
  • Where victim impact statement content has not been tested, courts must exercise care, particularly when considering whether circumstances of aggravation have been established to the requisite standard.
  • A sentencing proceeding following a special hearing under the Mental Health (Forensic Provisions) Act 1990 proceeds on the same sentencing principles as an ordinary criminal matter, including consideration of the limiting terms previously imposed.
  • Delay between findings of guilt and the pronouncement of sentence does not of itself constitute error where the delay arises from ordinary judicial workload and logistical constraints, provided the offender is sentenced at the first reasonable opportunity.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 78K, 78L, 78Q(1), 79, 80, 81A
- Criminal Procedure Act 1986 (NSW), ss 28, 29
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- Bragias (1997) 92 A Crim R 330
- DBW v R [2007] NSWCCA 236
- Fisher v R [2008] NSWCCA 129
- Magnuson v R [2013] NSWCCA 50
- Mailes v R (2004) 62 NSWLR 181
- Mill v The Queen (1988) 166 CLR 59
- Pearce v R (1998) 194 CLR 610
- R v Fahda [1999] NSWCCA 267
- R v Gavel [2014] NSWCCA 56
- R v Gilmour (1979) 1 A Crim R 419
- R v JCW [2000] NSWCCA 209
- R v Merritt [2000] NSWCCA 365
- R v MJR [2002] NSWCCA 129
- R v Moon [2000] NSWCCA 534
- R v Tadrosse [2005] NSWCCA 145
- R v Thomas [2007] NSWCCA 269
- R v Burg [2004] NSWCCA 300
- R v Wilson [2005] NSWCCA 219
- RHMcL v The Queen (2000) 203 CLR 472
- Todd (1982) 2 NSWLR 517