Director of Public Prosecutions v Walker

[2023] VCC 1174

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00053

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHLEY WALKER

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	10 July 2023
DATE OF SENTENCE:	10 July 2023
CASE MAY BE CITED AS:	DPP v Walker
MEDIUM NEUTRAL CITATION:	[2023] VCC 1174

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie	Office of Public Prosecutions
For the Accused	Ms A. Patterson

HIS HONOUR: 

1Ashley Walker, you have pleaded guilty to one charge of aggravated burglary and one charge of causing injury recklessly.  Those crimes carry maximum penalties of 25 years and 5 years respectively.

2You are now 31 years of age.  You pleaded guilty at a reasonably early opportunity.  I will give some acknowledgement of remorse by the plea of guilty, but it is pretty clear that when you were speaking to the psychologist you engaged in a significant amount of victim blaming, but be that as it may, I will give you the benefit of the doubt insofar as remorse is concerned.

3Also, you must get the utilitarian benefit of that plea of guilty.  You may well have had a chance as the only Crown witness against you had been the complainant.

4I also take into account the fact that this plea has been made in the time of Worboyes and significant discounts must be given for that and not merely have lip service towards it.

5Unfortunately in your situation you have very significant priors at 31 years of age.  I cannot take them into account and I do not, but it would seem pretty clear that this has been going on since you were a kid.  Obviously Children's Court matters are not listed before me but you have reached the age of 30 and the only person who can fix this now is you, I am afraid.

6As will become clear from the summary of the offending, general and specific deterrence are clearly important, denunciation and also appropriate punishment.  You are getting very close to the scenario where community protection is going to become very important.  I can indicate to you, Mr Walker, if you get out and start doing this again, at some stage, some judge is going to give you a very very serious sentence indeed.  I think there is no other way of dealing with it.

7It is clear from what you told your psychiatrist that you lack insight and you have little faith in the capacity of mental health experts to assist you.

8Hopefully somehow or other you are able to see your way clear to get around those matters and endeavour at least to make something of your life.

9In simple terms, you and the offender were known to each other.  Apparently he had given you up or done something and at approximately 12.30 am, in the early hours of the morning obviously, in May 2022 you, along with two friends, attended at the victim's house.  I note that neither of those two have been charged and I will treat this as a singular act on your part.

10You were parked outside the front.  You walked to the front door and knocked.  The victim's house mate opened the front door and saw you standing there. 

11You yelled out 'Where the fuck is Scott' and then uninvited, pushed past the friend, went into the front bedroom where the victim was asleep on a mattress on the floor, jumped on him, you gave him a kicking and he was able to get up off the mattress - well you got him up off the mattress and threw him into a window.  It broke, he was cut, you then threw him into a cupboard and continued to punch and kick him to his head and body.

12He was able to get away and ran out the front door.  Whilst endeavouring to hide from you he realised that he was injured and went back to the house.  It is clear that somebody at least was looking for him.

13When he got back to the house he rang police and was taken to hospital and received stitches.

14To your credit I suppose in your record of interview you admitted having gone to the address, you admitted having assaulted him and as I have indicated, you seemed to take the view he deserved it.  That again, you know you have done the right thing and at least explained to police your perception of it all, and you agreed that you had hit and kicked him a number of times.

15The difficulty is of course that you do have prior convictions for violence.  You have been gaoled for it on a number of occasions and there are no other court dispositions other than gaol are now operative. 

16However, there was no weapon involved.  It was probably pre-meditated.  There was no force used to get in and fortunately in the end at least the injuries do not appear to have been all that significant.

17It is a situation where the sentence for the recklessly cause injury in my view should be served wholly concurrently with the sentence for aggravated burglary, because of reasons of totality and just simply it is all in the one incident.

18You are still relatively young at 31 years of age.  As I have indicated, that is when people can turn their lives around.  You are in a situation where a head sentence and a minimum term is the only sentence available. 

19Matters personal were contained in a very helpful document of submissions prepared and filed by your counsel. 

20To your credit you have done a significant number of courses whilst in custody and hopefully you are learning something from that.  I know that has been difficult in COVID times to be able to do that and that is to your credit and hopefully it means you are making some sort of an effort.

21Your counsel pointed out that insofar as your background is concerned you are the youngest of three children.  You were brought up in Warrnambool and nothing significant about your childhood, other than that you had difficulty in learning at school and preferred hands-on subjects.

22It seems clear by the time you were in high school you were being suspended occasionally, having occasional fights with other students, and left school in Year 9. You later completed Year 12 equivalent at TAFE.

23On leaving school you worked for a brick layer.  Before that was terminated you were in an altercation with your boss.  It was at that stage that you say you came into spiral with negative associations and illicit substance use.  That does not help you very much in this situation.

24Your employment history has been intermittent and you have had the odd job and clearly when you are drug free and alcohol free, which does not seem to be too often, you can work and apparently will work quite well.

25This is the longest time now, as I understand it, that you have been drug and alcohol free and hopefully that has given you some sense of what you can do to rehabilitate yourself.  When you leave custody, you are hoping to gain employment in hotel maintenance.

26Unfortunately you have three children, you have not seen them since 2017 when your partner was subject to family violence from you and a family violence intervention order naming her as a protected person was put in place.  As I understand it, you went to gaol for that.

27Again, the next relationship ended in 2020, same thing.  You have a two-year-old child together.  Sorry, I take that back - there are two children of that relationship.  You have a two-year-old child together, same thing.  She has a family violence intervention order against you.  As I understand it, your last significant gaol sentence was violence towards her.  It is not comforting, indeed it is far from it.  In any event, it is what it is.

28Your alcohol and drug use commenced at a pretty early age.  You do not have addiction to amphetamine.  It seems mainly to be cannabis, which it is hard to see how that causes violence, but in any event - and alcohol. 

29My obvious view here is there is probably anger management aspects involved in all this, but I will leave that to the Parole Board and their appropriate psychological personnel.

30You do have a history of depression and anxiety and that does not help anybody in gaol, but you are far from alone in that.  I do not know what the circumstances of it are but apparently when you were about 18, you were under investigation for the suspected killing of a friend, but you were later exonerated when somebody else was charged with it.  It seems to have had a deleterious effect on how you have gone about life since.

31You were assessed by Ms Cameron, a psychologist, who says you have a major depressive disorder.  I accept that and make allowance for it.  Also cannabis use and alcohol use disorder which do not assist you greatly here.

32She also points out that you should be given a further assessment for attention deficit or hyperactivity disorder, as well as potential for the presence of a specific learning disorder.  The ADHD may well be significant bearing in mind the impulsivity and the violence that you will resort to when under pressure.

33I am aware of all the matters in regard to sentencing of these matters.  Aggravated burglary is a charge which covers a large number of situations, but I have already indicated I regard this at low level, but unfortunately it is complicated by a very significant, in my view, criminal history.

34I am going to give you a sentence because of your plea of guilty, that is somewhat under the odds.  I think the risk of you re-offending is probably still high.  The chance of your rehabilitating is really up to you.  It is not comforting to see what you have said to the psychiatrist about all that, but at least you are doing the courses and making an effort and if you can keep drug free, hopefully you can keep yourself out of prison but that is about as much as I can say insofar as those aspects of it all are concerned.

35As I said, I am going to give you a sentence which some might see as being under the odds but you are still only a young man.  If you can get your act together, good luck to you.  It seems to me that if you do not and continue to reoffend in this way, at some stage, as I have already said to you, some judge is going to give you a very significant sentence indeed and that will be of nobody's making but your own.

36Accordingly, in all the circumstances on the charge of aggravated burglary three and a half years.

37On the charge of recklessly cause injury, one year to be served concurrently.

38An effective head sentence of three and a half years.  In these circumstances, because of your age, I will give you a minimum term of two years and four months.

39I direct that 391 days be reckoned as having been served under this sentence.

40Pursuant to s6AAA, but for your plea of guilty I would have given you five with a three and a half.

‑ ‑ ‑