Director of Public Prosecutions v Vallance

[2024] VCC 694

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-01961

DIRECTOR OF PUBLIC PROSECUTIONS

v

AIDAN VALLANCE

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2024
DATE OF SENTENCE:	14 May 2024
CASE MAY BE CITED AS:	DPP v Vallance
MEDIUM NEUTRAL CITATION:	[2024] VCC 694

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW- SENTENCE

Catchwords: Aggravated burglary; accused resided at boarding house; intellectual disability; argument with fellow boarder.

Legislation Cited: s77 of the Crimes Act 1958 (Vic); s44(1) Sentencing Act 1991 (Vic); 48D(3) Sentencing Act 1991 (Vic); 48D(3)(e) Sentencing Act 1991 (Vic);

Cases Cited: Hogarth v The Queen [2012] VSCA 382; R v Verdins [2007] VSCA 102; Muldrock v The Queen [2011] HCA 39.

Sentence: Community Correction Order and 65 days imprisonment.

PSD: 65 days

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms P. Thorp
For the Accused	Ms E. Anselma

HIS HONOUR:

1The matter of the Director of Public Prosecutions v Aidan Vallance was a plea effected in this Court sitting in Latrobe Valley on 25 March of this year. Ms Thorp appeared on behalf of the DPP and Ms Anselma on behalf of Mr Vallance.  As part of the plea, the Prosecution Opening, Exhibit A, was accepted by Ms Anselma as the facts upon which I am to sentence.

2Mr Vallance, who appears remotely today, was born in June 1991.  He was
32 at the time of this offending and is now 34.  The offending took place on
26 August 2023. The offence itself is an offence against s77 of the Crimes Act, of aggravated burglary.  This offence is inherently serious, as indicated by the maximum penalty of 25 years' imprisonment imposed by Parliament.

3The circumstances were that the crime occurred at approximately 4.15 pm on the 26 August 2023.  Mr Vallance resided at a boarding house, Room 31 at 1 to 4 Linden Court.  It would appear that at some stage, a fellow boarder, Shane Callesen, became embroiled in an argument with Mr Vallance.  Whether Mr Callison in fact was part and parcel of that, or simply became part of the reaction to no medication of Mr Vallance, cannot not be known.  At the time, Mr Vallance was on a NDIS plan and was residing at the premises.  The victim sought to go into his room to be protected from Mr Vallance and unfortunately Mr Vallance not only smashed his door to enter into his room, but entered the room with a knife, threatening to kill the victim.  Those circumstances are obviously objectively very serious. 

4At the time, as I expressed at the plea, it seemed to me that upon such facts it was more appropriate to be charged, with threat to kill and an assault, rather than the more serious charge of aggravated burglary.  However, the one charge was pursued.

5The circumstances were such that fortunately, no injuries were incurred, and the attack itself ended after a very short time.  Triple 0 had been called and the police arrived at the boarding house. Very shortly thereafter, Mr Vallance was arrested.  It would appear, and I imagine, Ms Anselma, you might be able to tell me this, but I understand he was remanded and ultimately bailed two months later after serving 65 days, which is PSD to today.  Do I take it that he was bailed, was it on an appeal or was it simply in the Magistrates Court on the basis of his mental issues?

6MS ANSELMA:  It was in the Magistrates Court, Your Honour, upon securing housing for Mr Vallance at a different location.

7HIS HONOUR:  All right, thank you.  So as part of the bail he was put into separate housing, than where the offence occurred; is that right?

8MS ANSELMA:  Yes, Your Honour.  Apologies, yes.

9HIS HONOUR:  Thank you.  Given his condition one is somewhat surprised, and I should say pleased that his prior offending is not more dramatic.  He has had prior offences.  In September 2014 at 23 years old, he was found guilty of a burglary charge but no conviction was recorded.  In June 2012, again no conviction was recorded with a wilful damage charge.  The matter was adjourned with an undertaking and in July 2011 again for a burglary charge, there was no conviction recorded when he was placed on his first justice plan. 

10In the plea, as I have already indicated, Exhibit A was the prosecution summary dated 15 February 2024.  Exhibit B was the prosecution sentencing submissions dated 21/3/24.  Exhibit C was the pre-sentence overview report prepared for the purposes of the justice plan condition.  Exhibit D was a Justice Plan dated 6/5/24, and Exhibit E was the requirement pursuant to s 80, the Statement of Intellectual Disability, provided by the Secretary as of 8 May 2024. Finally, the Community Correction report dated 10 May 2024, Exhibit F.

11In regard to the defence submissions, dated 19 March 2024 there were two medical reports.  The main report of Dr Keith Adey, which I will come to, was dated 5 October 2023, and there was a subsequent report dated 25/2/24 and finally there was a letter to the Court from Mr Vallance.

12In Exhibit B, the prosecution submissions as to sentence, at [8] it was submitted, that a form of imprisonment was warranted, given the seriousness of offending. In that submission acknowledgment was made of the potential for a combined sentence under s44(1) given his intellectual disability, with a justice plan condition. The prosecution had envisaged, obviously, the operations of the principles set out in Verdins and the issue as to a combined sentence and the length of imprisonment was left to the Court.

13The written submissions on behalf of the defence, Exhibit 1, was that a combined order under s44(1) by way of a Community Correction Order and a term of imprisonment was appropriate. It was further put that the appropriate term of imprisonment should be the 65 days served by way of pre-sentence detention.

14In regard to that matter the prosecution left the issue as to the length of such imprisonment to the Court. In these submissions defence counsel conceded the seriousness of the crime as set out in [8]. At [10], the submission was made that there needs to be a distinguishment as to the circumstances making up this technical aggravated burglary from the confrontational type of aggravated burglary in Hogarth v The Queen [2012] VSCA 382, at [5].

15Ms Anselma stressed that what occurred here was a spontaneous encounter following a disagreement in the facility, which as I have said was a share home. The Court does not disregard the fear the victim would have been in, given the condition of Mr Vallance, albeit that Mr Shane Callesen, who is the victim, has not placed before the Court a victim impact statement.  As I have already said, Mr Callesen had locked himself in his room to protect himself from Mr Vallance.  The door was then kicked open when he was then threatened with a knife and the threats of death were made.  Fortunately, as I have said, the whole event lasted about 30 seconds. It was accepted by Ms Anselma that the victim would indeed have been terrified in the circumstances.  Mr Vallance in his letter to the Court has expressed not only remorse, but an acknowledgment that these circumstances came about because of his failure to take medication.

16In the plea Ms Anselma put the personal circumstances that are set out, and I will go to those, in Exhibit 1.  They are set out at [11] to [17].  As detailed, Mr Vallance was born into a family which had, unfortunately, been beset with intellectual disability.  His father died when he was 12 and he was primarily raised by his grandmother.  He unfortunately had close to no education, given behavioural problems as a child, and the fact that he was expelled from a number of specialist schools.  He is, unfortunately, illiterate.  Due to his behavioural problems there were periods of time when he would reside in Department of Health and Human Services housing.  He unfortunately has few friends.  As I have already indicated, it was put upon his instructions that he unfortunately had not taken his medication the night before this incident.  He apparently, on instructions, had tried to de-escalate the circumstances after the initial argument by going into his room.  However, he was unable to contain himself and the offending occurred.  Mr Vallance is supported by the NDIS organisation and has his own worker and, indeed, as has been remarked today, now has stable accommodation.

17As I have indicated, also tendered was the medical reports of Dr Edney, and I want to come to the first of those, which is Exhibit 2, this report is dated 5 October 2023.  The first consultation with Mr Vallance by Dr Edney, who I should indicate is a consultant psychiatrist, was on 31 January 2012.  The history provided at that time were outbursts of anger, shouting and throwing objects at his elderly grandmother and carer.  His medication at the time was Ritalin for attention deficit hyperactivity disorder, Risperidone, which is a major tranquiliser to control paranoia and aggression, and a mood stabiliser.  Under, 'History', the doctor said, 'His intellectual disability, being unable to read or write, outbursts of anger and paranoid thoughts at the family as well as his day placement.  He's been expelled from special schools.  The doctor decided to change the tranquiliser to Olanzapine at 10 milligrams per night.  The purpose of that was to control aggression and paranoid thinking and ultimately such prescription was increased to 20 milligrams per night.

18He was at the time settled in a special accommodation boarding house and as far as the doctor knew, there was, subsequent to this time, compliance.  However, there was observations by way of blood tests from serum level, that non-compliance was occurring. His opinion was that Aidan was of low intelligence and did not recognise rules, regulations, what is right and what is wrong.  He does not attend consultations and does not comply with his oral medication.  As to management, the doctor said, 'I recommend that he be placed on a Court or mental health order for ongoing treatment, which can include intramuscular monthly injections of a major tranquiliser to replace oral medication.  I am happy to continue with Aidan's treatment, but do require enforcement of my suggested treatment'.

19The subsequent report really did not take the matter much further, although his medication was changed when he was in prison, except that the doctor stressed that he will need a Court order to ensure medication can continue.  It is of note that Mr Vallance was assessed under the old Act having an intellectual disability. 

20As I have said, Dr Edney saw the need for a Court sanctioned medicated program.  In this regard, as part of the Justice Plan I sought as a condition of the Justice Plan that such be made a condition of the Justice plan in order to protect the community and to assist Dr Edney.  Having requested this from the Department, and from the Correction Department, I am now told that neither of them have the power or the facilities to effect such testing.  As I have earlier indicated to Ms Anselma, I am going to make such a condition of the Community Correction Order and I hope that with appropriate understanding by one or other of the Departments, that is either under the Justice plan or pursuant to the Community Correction Order, Dr Edney can get the assistance he needs to ensure that Mr Vallance takes the appropriate medication.

21I formally find the submission made as to the applicability of Verdins principles 1 to 4, established, [2007] VSCA 102 at [22], and I note the reference in Exhibit one, to the High Court decision of Muldrock v The Queen [2011] HCA 39, at pp [13] to [54].

22As part of the plea Ms Anselma took me his priors, which I have already rehearsed.  There have been no assaults as part of those priors, and I have detailed them and, as I have said, given his background and his type of personality, it is to his credit that there is no priors of any greater magnitude then I have indicated.  Clearly, however, as accepted by his counsel, his paranoia, his lack of perception and his intellectual disability present a risk of future criminality.

23Counsel also put by way of mitigation the plea of guilty.  As I have already indicated, in my view, it was a very valuable plea to a charge of aggravated burglary.  It was both utilitarian and an indication, in my view, of remorse.  The letter Mr Vallance sent to the Court, Exhibit 4, I accept his expression that he was very remorseful.

24These cases are very difficult when one comes to sentence.  Given the principles expressed in Verdins, reduced weight can be given to general deterrence and punishment when you're dealing with persons such as Mr Vallance.  When you have people who are intellectually disabled and mentally afflicted, it is necessary for a Court to not only provide mercy in its sentence, but to provide mercy as a matter of humanity given the principles set out in Verdins.

25The difficulty comes, of course, when one has to balance the question of protection of the community.  I find given an analysis of his priors, on balance the personal factors should take prominence in this case.  I accept the proposition put by the defence at [8] that the offending should be classified as in the moderate range.

26I come then to the two reports that I received insofar as assistance to the Court in considering the question of protection of the community.  The first is
Exhibit F, Community Correction report.  That report is dated 10 May 2024 and I thank Mr Brentwood for that report.  It notes, as I have already detailed, the general risk of reoffending as being high.  Mr Vallance was assessed as suitable for a Community Correction Order with a treatment and rehabilitation condition under 48D(3), a supervision condition under 48E, and a s80 Justice Plan.  As I have already mentioned, Mr Vallance is, pursuant to the NDIS scheme, supported on a basis of a minimum three hours a day by Mr Jenkins, and it appears that Mr Jenkins does an excellent job.

27The report also noted Mr Vallance's own recognition that when he does not take his medication he is susceptible to committing offences.  As advised in the report, the current operations of Community Corrections Orders and drug testing, were set out by a Patricia McGuinness, who is the coordinator of drug testing, which was:

'The purpose of drug testing is to determine illicit drug use, not to determine medical compliance, or if someone is taking their prescribed medication as instructed.  Test results cannot determine if a drug is being taken as prescribed.  It will just tell us that the drug has ceased completely.  If the offender is taking their medication haphazardly it is likely to still be detected in a sample.  Drug levels are affected by many things.  As far as antipsychotic medications go it is not in our standard testing panel so it would not be routinely reported as a tested result'.

28I understand that.  I would have thought in the interest of protection of the community that there is no reason why such a form of testing should not be undertaken in regard to Mr Vallance.  In this case the Court is not interested in drug testing for illicit drug use.  What the Court is interested in is trying to protect the community by way of testing to help Dr Edney, if possible, to ensure there is further compliance.  I can only indicate, and in this case it seems to me that standard operation should be disregarded, that appropriate testing should be implemented by Community Corrections.  I have no power to order that.  The only power I have is to place an order upon Mr Vallance, and that order will be that he subject himself to testing, be it dictated by either of the departments and/or his doctor.

29If I come then to the Justice Plan, Exhibit D, where the Court sought assistance in this regard.  The overview report, Exhibit C, noted the disability,  the excellent support from Mr Jenkins, and the steps and prompting taken by Mr Jenkins to ensure that Mr Vallance carries out his daily hygiene needs and that he takes his medication.

30It noted his current circumstances in a one bedroom unit in Traralgon, the considerable support he has from Mr Jenkins, that he requires that substantial support and promoting from Mr Jenkins to take his daily medication.  Exhibit D, that is the Justice Plan itself, set out four recommendations, all of which recommendations obviously will be part of the Justice Plan.  Unfortunately, there was no recommendation as to assistance with forensic testing to ensure ongoing participation.  When the Court queried this matter we received an email from Jacqueline Kent, who is the team leader in Disability Justice Coordination, she stated:

'We certainly share the same concerns in relation to Mr Vallance's history of non-compliance with his medication, which is why we have included a mental health recommendation in the Justice plan based upon Dr Edney's reports.  It's just not a recommendation for forensic testing.  The Justice plan will focus specifically on Mr Vallance's forensic disability needs and ensure that any treatment or intervention put in place is achievable in relation to his disability and capabilities.  We will also support Corrections Victoria and other services to ensure that Mr Vallance adheres to conditions on his orders'.

31And as I said, neither report was of assistance in the sense of the request made by Dr Edney, a request it seems to me that is quite appropriate in order to protect the community. 

32Coming then to the disposition, given the circumstances of the remote hearing, I will pronounce the sentence and you can stay where you are, Mr Vallance.

33Mr Vallance will be convicted of this offence and sentenced to a combined sentence under s44 of the Sentencing Act, being a Community Correction Order and imprisonment of 65 days.  The Community Correction Order will be for a period of three years.  The conditions on the Community Correction Order will be treatment and assessment under 48D(3)(e) for his mental health, 48E, supervision, and that he be subject to a Justice plan under s80.

34I am going to impose the following special condition.  The special condition will be that Mr Vallance take the medication for his mental condition as directed by Community Directional Services, under the Justice plan or by his medical practitioners.  I make it in that broad form on the basis that currently those services have indicated that they cannot carry out such testing.  Added to that special condition will be that not only must he take his medication, but must submit to relevant blood tests to ensure such compliance.

35I declare pursuant to the Sentencing Act that the 65 days already served as
pre-sentence detention be declared as service of this combined sentence and that this declaration be noted in the records of this Court.

36The Parliament requires me under s6AAA to indicate to Mr Vallance what would have been the sentence pronounced had he not pleaded guilty. Unfortunately, that legislation relates to only one factor, and that is the plea of guilty. In the case of Mr Vallance the circumstances are of such breadth that it is just impossible for me to indicate what would have been the alternative sentence, although clearly it would not have been an order under s44.

37Ms Anselma, is that clear?

38MS ANSELMA:  Your Honour, it is, thank you.  I have just been informed by the worker from Disability Justice, Ms Bernard, that the Justice plan can only operate as a condition on a Corrections order for a maximum of two years.

39HIS HONOUR:  Yes, that can only go for two years.  That is under the Act.  Let us hope that assistance helps.  As I say, one can be positive about your client because the fact is despite all of these medical conditions, he has kept himself out of serious trouble. This clearly in his life was a particular incident, but it is a very dangerous and concerning incident.

40MS ANSELMA:  Yes, Your Honour.

41HIS HONOUR:  Ms Anselma, I know that you will do this but one thing that needs to be stressed to your client, and I am certain that his NDIS worker will do the same, as his doctor had said is that he must take his medication.  Yes, Ms Thorp, any matters that I need to clarify with you?

42MS THORP:  It is just the requirement to explain the consequences of breaching the order, which I understand the difficulty in this situation.

43HIS HONOUR:  Yes.  Ms Anselma, it is important for you when the circumstances of remote pronouncement of sentences is such that the formal order will be sent to your office and then signed by your client and sent back here.  Clearly it is important for your client to understand that
Community Correction Orders and breaches of them are taken very seriously by the Court and the Parliament. Should there be a breach of this order your client obviously runs the risk of further gaol.  I think that should be emphasised to your client, if you would not mind.

44MS ANSELMA:  Yes, Your Honour.

45HIS HONOUR:  Thank you.  Yes, thank you both.  We will prepare the order, Ms Thorp.  When it is signed we will forward a copy to you.

46MS THORP:  As Your Honour pleases.

47HIS HONOUR:  Or to your instructor.

48MS THORP:  Thank you.

49HIS HONOUR:  Anything else I need to attend to?

50COUNSEL:  No, Your Honour.

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