Director of Public Prosecutions v Walker & Graham
[2022] VCC 1521
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02017
CR-21-02034
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA JAMES WALKER and RYAYTH JULES GRAHAM |
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JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2022 | |
DATE OF SENTENCE: | 7 September 2022 | |
CASE MAY BE CITED AS: | DPP v Walker & Graham | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1521 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Burglary – criminal damage – affray – make threat to inflict serious injury – unlawful assault – plea of guilty – deprived childhood – rehabilitation – youthful offender – impact of COVID-19 on burden of imprisonment – parity
Cases Cited:Bugmy v R [2013] HCA 37
Sentence: Convicted and sentenced to a term of imprisonment of 9 months, with a Community Correction Order of 12 months (Walker); Convicted and sentenced to a term of imprisonment of 6 months, with a Community Correction Order of 8 months (Graham)
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Marcel White | Office of Public Prosecutions |
| For the Accused Walker | Ms Liliana Dubroja | Slades and Parsons Solicitors |
| For the Accused Graham | Mr Mark Sturges | Emma Turnbull Lawyers |
HER HONOUR:
Introduction
1Mr Walker and Mr Graham, you have each pleaded guilty to one charge of burglary (charge 1), one charge of criminal damage (charge 2) and one charge of affray (charge 3). Mr Walker, you have additionally pleaded guilty to one charge of make threat to inflict serious injury (charge 4), and have consented to this court hearing and pleaded guilty to a related summary offence of unlawful assault (related summary charge 9).
2The maximum penalty for burglary and criminal damage is 10 years’ imprisonment, for affray and make threat to inflict serious injury is 5 years’ imprisonment and for unlawful assault is 15 penalty units or 3 months’ imprisonment.
Circumstances of Offending
3The full circumstances of the offending, arrest and interview are set out in the Summary of Prosecution Opening for Plea which was tendered as Exhibit A on the plea. The charges arise from events which occurred on 19 February 2021 when you, Mr Walker, were 28 years of age, and you, Mr Graham, were 22 years of age.
4At the time of the offences you, Mr Walker, were in a relationship with Stephanie Jackson. You had previously been in a relationship with Molly Aspland and the two of you had had two children together. The relationship with Ms Aspland ended shortly before this offending.
5Throughout the day on 18 February 2021 and into the early hours of the morning of 19 February 2021, there were a series of text messages and phone calls between Molly Aspland and each of the two of you – the crux of which appeared to revolve around Ms Aspland’s views that you, Mr Walker, had been cheating on her, and issues she had in respect of your new relationship with Ms Jackson. Shortly after the last of these phone calls, Ms Aspland drove to her brother Nathan’s house in Canadian, but found that he was not home and went to a friend’s place instead.
6At approximately 1.30am, the two of you attended at Nathan Aspland’s home. You, Mr Walker, were carrying a two-tone bar when you arrived, whilst you, Mr Graham, were carrying a machete. On arrival you attempted to open the wire mesh security door using the handle, and then took turns to kick the door. You were unable to force the door open and gave up, going to the rear of the property still carrying your respective weapons. At the back door, one of the two of you knocked with your weapon and yelled out ‘Open up, you fucken dog’. No-one was home so there was no response from inside.
7At around this time the two of you started to smash a window on the house. Mr Aspland had motion sensor activated CCTV cameras at his home and at around this time he was notified through an app on his phone that the CCTV cameras at his property had detected movement. He checked the app and saw a man smashing the window near his front door. Occupants of other houses in the vicinity of Mr Aspland’s home also saw and heard the two of you smashing windows and called the police.
8The two of you then entered the house through a window which you had broken (charge 1 – burglary) and started to damage property inside the home including a television, mirror, and furniture. Your actions in damaging the front door, breaking the windows and damaging the property inside the home constitutes charge 2 – criminal damage. Both of you suffered injuries to your hands in the course of breaking in to Mr Aspland’s house.
9As a result of seeing, via the app, the damage being done to his home, Nathan Aspland drove to his address with a friend named ‘Pete’. He saw a white car parked across the road from his address. Ms Jackson was sitting in that car.
10Immediately upon arriving at his home, Mr Aspland went to his trailer and grabbed an axe out of his tool box. He then ran to his front door and yelled ‘what are you doing?’ He was accompanied by Pete. As Mr Aspland reached the front door of his home, one of you came out of his front door wearing a black bandana over your face. Mr Aspland and Pete then confronted the two of you. There is no CCTV footage of what occurred next as either Mr Aspland, or one of his associates, deleted the CCTV footage. Further, Mr Aspland was uncooperative with police and would not advise as to the identity of ‘Pete’ or whether Pete was armed.
11According to a neighbour from across the street the first act of violence during the altercation out the front of Mr Aspland’s home involved either Mr Aspland or Pete knocking one of the two of you to the ground. One of you then struck Nathan Aspland over the head with an item you were carrying and Mr Aspland fell over. Both of you participated in fighting outside the house with Mr Aspland and Pete. This conduct constitutes charge 3 – affray.
12As a result of the affray, Mr Aspland suffered a number of injuries which included a bleed on the brain, skull fractures, a laceration to the head and bruises on the skull. The prosecution cannot say which one of you struck Nathan Aspland with the item causing him to fall, nor who directly caused the injuries. The prosecution case is that the injuries were sustained at some point during the affray in which both of you participated.
13At 2.04am that same morning, Ms Jackson booked a ride with Ola Cabs and asked for a driver to attend at an address in Canadian. Ola driver, Muhammad Khan arrived at the address in Canadian a short time later. You, Mr Walker, sat in the back seat of the vehicle with Ms Jackson. You were still carrying a weapon at this time which looked like a rod. You, Mr Graham, sat in the front passenger seat of the car. During the drive, Ms Jackson changed the destination address from an address in Wendouree to an address in Sydenham. Whilst on the Western Highway, driving towards Sydenham, Mr Khan hit a kangaroo. You, Mr Walker, then punched Mr Khan in the head with your fist and said ‘are you trying to kill us’, and asked for the trip money back (related summary charge 9 – unlawful assault).
14After taking the Leakes Rd exit as requested, Mr Khan was forced to stop the vehicle as you, Mr Walker, reached over and pulled up the handbrake. When the vehicle stopped you exited and demanded, whilst still holding the rod in your hand, that Mr Khan give the trip money back. You then reached into the vehicle, pulled out the car keys and threw them away. You threatened Mr Khan and demanded that he take you to Sydenham. You, Mr Graham, then retrieved the car keys and returned them to Mr Khan, and Mr Khan returned the trip money as requested.
15You, Mr Walker, then again demanded that Mr Khan drive the three of you to Sydenham and said you would pay him $50. When Mr Khan told you that he would not be taking you to Sydenham because he was frightened, you demanded that Mr Khan give you the car keys or that you would kill him. At the time you made this threat you had the rod raised above your head. This conduct constitutes charge 4 – make threat to inflict serious injury. The prosecution concedes that the threat made by you against Mr Khan was animated by your intoxicated state but put the case on the basis that you were reckless to the fact that Mr Khan would have treated it as a threat to cause him serious injury by violence at the very least.
16Following you making this threat, Mr Khan put his phone and wallet in his pocket and began to run. You, Mr Walker, chased after him carrying the rod, and yelling at him to give you the car keys. Mr Khan managed to get away and call police. The two of you, and Ms Jackson, ran off and were later located in nearby bushes by a police dog.
17The two of you were arrested and interviewed by police. You, Mr Graham, made a ‘no comment’ record of interview. By contrast, you, Mr Walker, did respond to police questions, but told a number of lies including that you had cut yourself at work, you did not remember where you had taken the Ola car from, and that whilst you had taken the keys out of the ignition of Mr Khan’s car, you had held onto them and given them back to Mr Khan when he returned the money to Ms Jackson.
18Each of you were remanded into custody on 19 February 2021. You, Mr Graham, were granted bail on 17 September 2021 following the contested committal in this matter, and as a result have served 211 days of pre-sentence detention. You, Mr Walker, were granted bail on 14 December 2021, and as a result have served 299 days of pre-sentence detention.
Victim Impact
19I received a victim impact statement from Mr Khan during the plea. He explained that as a result of this incident he has stopped working in the rideshare business as he gets scared of people and has difficulty in trusting in people’s behaviour. This has affected him financially as well as emotionally as he now finds himself in a position where he needs to find a new job in a new line of work. He also finds it difficult to engage as fully in his social life as he used to – even with close family members and friends. I accept that the impact upon Mr Khan has been substantial, and I take this impact into account in sentencing you, Mr Walker.
Gravity of Offending
20Turning now to the gravity of the offending. There is no dispute in this case that your offending was serious. Both of you had been drinking on the evening of the offences but this does not provide either of you with an excuse for your conduct.
21Insofar as the burglary and criminal damage are concerned, they are serious examples of this kind of offence. You both entered the victim’s home in the early hours of the morning, with weapons and disguises, and caused substantial damage to a door, windows, and the contents of the house. Whilst the offending was not sophisticated, there was some level of pre-planning as evidenced by your attendance at the premises already armed with weapons, and wearing bandanas and masks to disguise your appearance.
22The affray was similarly a serious example of this kind of offence. As conceded by your counsel, Mr Walker, it would have been terrifying for the neighbours to see four men on the street in the early hours of the morning, brandishing weapons and fighting with each other. Moreover, Mr Aspland received some significant injuries during the affray – including fractures to his skull – which increases the overall gravity of the offence. However I do accept that the affray occurred over a relatively short period of time, and occurred spontaneously when Mr Aspland and his friend attended at the property.
23Finally, dealing with the incident in relation to Mr Khan – for which only you, Mr Walker, are facing charges – this was similarly a serious example of assault and making threats to inflict serious injury. The incident occurred in the course of Mr Khan’s employment, again in the early hours of the morning, and in circumstances where Mr Khan was vulnerable given his role as driver of the vehicle. I do accept that the initial assault was a spontaneous incident which arose after a collision with a kangaroo, however rather than desisting, you then took it upon yourself later in the same journey to make threats to Mr Khan whilst brandishing a weapon.
24I note that it is important in sentencing each of you for these offences that there is some level of cumulation as between the various types of offending on the evening. to reflect the distinct aspects of the offending. However, I also note that in respect of the burglary and criminal damage offences, it is appropriate to impose an aggregate sentence given that both offences arise from the same set of circumstances and the manner in which those offences are entwined.
Plea of Guilty
25Whilst this matter has a relatively lengthy history and progressed through a contested committal and case conference prior to resolution, I consider your pleas of guilty in this case to be pleas which were entered at the first reasonable opportunity. It was not until the issues had been aired at the case conference that a resolution was reached between the parties where the prosecution was willing to withdraw a number of more serious charges which each of you were facing. Upon the indication that those charges would be withdrawn, each of you indicated your intention to plead guilty.
26Your pleas are significant for a number of reasons. Firstly you have saved the witnesses from the ordeal of having to give evidence at trial.
27Secondly, your pleas facilitate the course of justice and have significant utilitarian value, aspects which gain even greater weight by reason of you having entered your pleas in the current climate of the pandemic which is having a significant impact upon the smooth running of the criminal justice system.
28Thirdly, I also accept in each case that your plea of guilty demonstrates an acceptance of responsibility and remorse. This is so in both of your cases, despite the initial lies which you told to police, Mr Walker. Your remorse for your conduct in each case is reflected not only in your pleas of guilty, but also in the references tendered on your behalf, and the conversations which each of you had with the Corrections officer who assessed you for your suitability for a community correction order.
29In the circumstances I have given each of you a substantial discount on sentence for your plea of guilty.
Personal Circumstances – Mr Walker
30Mr Walker, you are now 30 years of age. You were born in Southport, Queensland and were the equal oldest of three children born to your parents Steven Walker and Bronwyn Graham – the other two being your twin sister Kayla and your younger brother Jacob. You have no memory of your parents being in a relationship, and in fact had no knowledge of your biological father until you were 12 years of age. Your mother re-partnered with a man named Ryan Carr when you were three years of age, and you believed that Mr Carr was your biological father. Your mother and Mr Carr separated when you were 7 years of age, but Mr Carr remained involved in your life after that separation. You had three further siblings born of the relationship between your mother and Mr Carr – including your co-accused Mr Graham.
31It was submitted on your behalf, and conceded by the prosecution that you had a severely disrupted and difficult childhood. You moved homes, schools and states regularly in your early childhood due to Mr Carr being involved in organised crime and attempting to evade police. Mr Carr was frequently incarcerated and you recall visiting him in custody from the age of seven onwards. Further both Mr Carr and your mother were drug users and your mother was also an alcoholic. After your mother and Mr Carr separated, you recall your mother being neglectful of you and the other children, having frequent boyfriends in the home, engaging in sex work whilst you and the other children were home; and being physically violent towards you – including occasions when you were beaten with hoses and garden implements and an occasion when she choked you to the point of unconsciousness. As a result of the disruptions in your family life you attended approximately ten primary schools, with your longest attendance at any one school being approximately two years.
32When you were twelve years of age, your maternal grandparents told you that your biological father was Mr Walker and not Mr Carr, and you and Jacob were moved into Mr Walker’s care for a period of approximately three years. This did not result in an improvement in your situation as Mr Walker was also physically violent towards you and Jacob, and was a heroin addict. During the three years that you lived with Mr Walker, you did not see your mother or other siblings, and you frequently left home to couch surf at friend’s homes. You also started smoking cannabis, using amphetamines and drinking alcohol. You again had difficulties with attending and remaining at school, and unsurprisingly also had behavioural issues when at school. You managed to complete the equivalent of Year 9, before moving back to the Gold Coast where you resided between the homes of your uncle, mother, grandparents and friends.
33At seventeen years of age you returned to living with Mr Carr. During this time, Mr Carr was trafficking and cooking methylamphetamine, and he provided you with drugs. As a result you started using methylamphetamine and were using it on a daily basis until you were 20 years of age. You did manage to undertake some work as a concreter whilst residing in the Gold Coast between the ages of 18 and 20, however this work was sporadic due to the impact of your drug use. By this stage you also had an additional four step-siblings – two born to your mother and two to Mr Carr.
34At twenty years of age, you again became homeless and you contacted your biological father who was now living in Melbourne. He arranged for you to move in with a cousin in Melbourne and you then experienced a period of relative stability for the first time in your life. You initially did some work as a concreter before obtaining work in a medical supply factory. You worked for that company for six years from the age of twenty through to twenty-six and gained a management position. You also commenced a relationship with your ex-partner Yasna Kelly. With her assistance, you managed to reduce your cannabis consumption to monthly use and only sporadically used cocaine and ecstasy. You bought a house together and your life appeared to be heading in a good direction.
35Unfortunately your relationship with Ms Kelly ended after three years and the two of you sold the house which you have purchased. You used the proceeds of that sale to return to Queensland and whilst there you relapsed significantly into drug use. You then returned to Victoria to continue working at the medical supply factory, but your use of drugs and alcohol escalated, and continued to do so until your remand on these matters.
36At some point after your return to Victoria, you met and began a relationship with Molly Aspland. You have two children from that relationship – Senor and Nirvana. Senor was born in 2019 with serious health problems including a cleft palate, a second set of ribs and spinal issues. He has had to undergo a number of operations for his cleft palate and regularly sees a speech pathologist. He is now three years of age and despite his multiple ongoing health issues, attends kindergarten. Nirvana is now almost two years of age.
Prior Convictions
37You do have a criminal history which consists predominantly of some minor offences which you committed in Qld between 2010 and 2016 (when you were aged between 17 and 23 years of age). Those offences were largely dealt with by way of fine and non-conviction and are not of any great significance to this sentencing exercise.
38Of greater relevance is a sentence which you received in March 2019 for one charge of affray and one charge of recklessly cause injury. You were convicted and placed on a 24 month community correction order with unpaid community work hours, supervision and treatment conditions. That order was ultimately cancelled in January 2020 due to your son’s serious health issues impacting on your ability to complete the order. However up until the time of that cancellation you had been complying and engaging with all supervision and treatment conditions of the order. Whilst the circumstances of that affray were somewhat different to the circumstances of your current offending, it is still of some concern that you were again involved in an affray so soon after being sentenced for similar offences. In these circumstances specific deterrence remains an important sentencing purpose in your case.
Relevance of Deprived Childhood to Sentencing
39It was submitted by Ms Dubroja on your behalf, and conceded by Mr White on behalf of the prosecution, that the fact that you were raised in an environment of alcohol and drug abuse, violence and neglect is a matter which must be given weight in the sentencing exercise. In particular it was submitted on your behalf, relying upon the principles in Bugmy v R [2013] HCA 37, that your moral culpability for your offending is reduced by reason of the impact of your deprived childhood. In summary, Ms Dubroja submitted that your early development was compromised due to your exposure to your parent’s violence, mental health issues and drug taking. These experiences led to educational disadvantage, a somewhat transient lifestyle, and use of alcohol and drugs from an early age – which in turns provides the context within which you committed the current offences. Accordingly, Ms Dubroja submitted that the dysfunction, disadvantage and abuse experienced by you reduces your moral culpability for the offending and should be taken into account as an important mitigating circumstance.
40I agree with this submission and have taken into account the impact of the hardship suffered by you during your childhood and adolescence when assessing your criminal responsibility for your offending. Whilst general deterrence still carries significant weight in the sentencing synthesis given the nature and gravity offences which have been committed, I am of the view that your culpability must be assessed in the context of your personal history of trauma and deprivation, and that any sentence imposed should allow within it the opportunity for you to engage with rehabilitative supports to address the impact of those traumas. Accordingly, I am of the view that in the particular circumstances of your case, the weight to be given to the sentencing purpose of general deterrence should be moderated to a degree, and the weight to be given to rehabilitation should be enhanced to properly reflect the substantial impact of your background upon you. Further, I am of the view that community protection should also be given additional weight in the sentencing synthesis – bearing in mind, however, that in your case community protection is likely to be best achieved through enhancing your rehabilitation prospects.
Current Circumstances and Prospects of Rehabilitation
41As previously noted you spent a period of 299 days on remand in respect of this offending. Your time in custody was your first period of abstinence from all alcohol and drugs since you commenced using substances as a 13 year old. You report that you have remained alcohol and drug free since your remand into custody and have commenced on a path of rehabilitative treatment for your drug and alcohol issues.
42In support of this submission I received four certificates relating to courses which you completed whilst in custody, together with a letter from Tegan Hamilton, who is the Primary Therapist at the Peninsula Health Resetlife alcohol and drug treatment program – a program which you attended post-release. Ms Hamilton confirmed you had self-referred to the program which involves a 16 week intensive outpatient program, followed by 36 weeks of continuing care. You commenced with the program on 9 March 2022 and successfully completed the intensive component on 19 August 2022. That component required you to attend formal group treatment three days per week, a one hour individual therapy session once per fortnight and weekly mandatory random alcohol and drug testing. According to Ms Hamilton you contributed well in both your group and individual therapy sessions and demonstrated an ‘impressive degree of personal development’. Ms Hamilton also notes that due to your level of insight and engagement, you have been asked to return to the program in the role of volunteer peer in the near future to share your experience with others starting out on their recovery journey.
43Additionally, since your release from custody you have commenced working at an automotive shop on a part-time basis. I received a reference from Mr Raymond Ogilvie – who owns and operates the business – in which he spoke very positively of your reliability, punctuality, enthusiasm and eagerness to develop new skills. It is apparent that you are already considered to be a valuable employee, and that you have a full time role waiting for you once you are in a position to be able to commit to full time work.
44You are also now in a relationship with your new partner Lisa Amenta, and the two of you are expecting a child in February next year. Although the relationship between you is a relatively new one, Ms Amenta has known you for approximately five years and has seen you at your worst when you were struggling with your drug and alcohol addictions. She reports that you are now a completely different person, who has committed to your drug and alcohol treatment, your children, your new passion for restoring cars, and your relationship with her. These sentiments are also echoed in references from your twin sister Kayla, and your former partner Ms Kelly – both of whom are very supportive of you. The support of your extended family is also obvious from the number of members of your family who attended court in support of you at the plea hearing.
45Ms Dubroja submitted on your behalf that whilst your prospects for long term rehabilitation are firmly linked with your ability to remain alcohol and drug free, your prospects for rehabilitation should be considered to be good given the protective factors which you now have in your favour. She highlighted your engagement in treatment, employment, stable residence, family support, and your relationships with your children as positive factors. I agree with this assessment.
46It appears that your time in custody has had a salutary effect and it is apparent from the material before me that you have taken responsibility for your conduct, made substantial efforts to both address your drug and alcohol issues, and taken steps towards being a contributing member of both the community and your family. You are very much involved in the lives of your children, having the care of them every second weekend despite the issues which your current offending has raised in the family dynamic. It is important both for you and the community that you continue on this path of rehabilitation and that you continue to have some guidance and support, at least in the short term, in doing so. I have taken both your progress towards rehabilitation to date, and your need to continue on a rehabilitative path into the future, into account in determining both the length and type of sentence to be imposed in this case.
Personal Circumstances – Mr Graham
47Mr Graham, you are now 24 years of age. You were born on the Gold Coast and are one of three siblings to your mother Bronwyn Graham and your father Ryan Carr. You have ten siblings and step-siblings in total – one of whom is your co-accused Mr Walker. You also had an unsettled and dysfunctional upbringing – albeit to a much lesser extent than Mr Walker. You do not have a memory of your parents ever being together, and you spent much of your childhood moving between your parents’ and your grandparents’ homes due to your father’s criminal activity and incarceration, and your mother’s alcohol abuse and mental health issues. Your father spent most of the earlier years of your life in and out of gaol before he was deported to New Zealand in 2016 when you were 18 years of age. He was, as I have already noted, a drug user and often left cannabis laying around the house. By the age of 11, you had also commenced using cannabis.
48You attended Pacific Pines Primary School and Secondary School in Queensland. You were expelled in Year 9 due to a fight and spent one year in a police reform school before returning to Pacific Pines to complete your schooling. I am told that you are the only person in your immediate family to have finished Year 12, and you are rightly proud of your achievement in doing so. Upon leaving school you worked as a boat builder in Queensland, before following your father to New Zealand for a period of time. Whilst in New Zealand you worked as a forklift driver. You then returned to Australia.
49I am told that you arrived in Melbourne in February 2021, having travelled from Queensland to be closer to family living in Victoria. You had only been in Melbourne for approximately two weeks prior to the offending and were residing in Sydenham with your brother, Mr Walker, when this incident occurred.
Prior convictions
50Whilst you do have a criminal history in Queensland, the matters for which you have appeared are all minor as reflected in the penalties imposed. These prior matters have limited significance in the current sentencing exercise, the main point being that you cannot call in your aid that this is your first time before the court.
Current Circumstances, Youth and Prospects of Rehabilitation
51As previously identified, you spent 211 days in custody on remand. Since being bailed you have been on bail conditions which include a curfew, and reporting, and have been restricted from returning to Queensland where the majority of your immediate family reside.
52You have however found yourself in a much safer and more stable environment than what you have had for some time – living with Ms Rayward (your step-mother) and her partner Mr Mulvogue. This has allowed you to take steps to deal with some of your issues. I am told that you have significantly reduced your alcohol intake and have attended upon a doctor to gain some help for mental health issues which you have suffered as a result of a number of traumatic incidents – including being the victim of home invasions whilst your father was in custody, and the death of three of your closest friends between 2015 and 2019. I am told that you have been diagnosed with post-traumatic stress disorder and anxiety and have been prescribed mirtazapine to assist you in dealing with these conditions. I received a very short letter from Dr Dobbing, a general practitioner, who confirmed that you attended upon him on 1 August 2022, whereupon he re-commenced you on this medication and also referred you for a review with a psychologist. Your first appointment with the psychologist was scheduled to take place two days after the plea hearing in this matter. Whilst it is not sought to rely on your mental health, or your deprived upbringing, as specific mitigating factors in this case, I note that your willingness to attempt to address these issues is a matter which bears positively on your prospects for rehabilitation.
53In addition to confronting your alcohol and mental health issues, you have used your time whilst on bail to connect with your family members who are based in Melbourne, and to assist your older sister Kayla with caring for your nephew whilst she pursues her full time study at Chisholm Tafe. It is your ultimate goal, however, to return to Queensland after this matter is concluded in order to support your grandmother whose health is failing, and to live with your sister and her family with whom you are very close.
54Mr Sturges submitted on your behalf that given your current age, and your age at the time of offending, you should be considered to be a youthful offender and rehabilitation should gain additional weight as a sentencing purpose as a result. Further Mr Sturges submitted that your prospects of rehabilitation should be considered to be positive given that you have completed your education, have the capacity to engage in employment, are engaging in treatment for your mental health issues, have remained offence-free and compliant with your bail for just shy of 12 months, and have the support of your family. He submitted that in your case community protection is best achieved through you continuing on your positive path of rehabilitation, and that given your young age and rehabilitative prospects, rehabilitation should be a dominant sentencing purpose in your case.
55I agree with your counsel’s submission that you do have good prospects for rehabilitation and that rehabilitation does carry increased weight as a sentencing purpose in your case given your age, limited prior criminal history, and good prospects for rehabilitation. However, general deterrence and denunciation of your conduct are also still important sentencing purposes given the nature and gravity of the offences which you committed.
Impact of Covid-19 on Burden of Imprisonment – Mr Walker and Mr Graham
56During the period that each of you were in custody on remand, you were impacted by the COVID-19 pandemic in a number of ways. I take into account that your time in custody was made more burdensome than it might otherwise have been, due to restrictions imposed in response to the pandemic. As a result of the restrictions you were subjected to periods of quarantining and lockdown, restricted access to rehabilitative opportunities, and reduced access to family and friends including limitations on face to face contact. I also accept that you were both subject to heightened stress and anxiety by reason of your incarceration and resultant lack of control of the measures to reduce your own risk of contracting the virus, as well as your concern for the health and safety for your loved ones in the community.
57I take this added burden of imprisonment into account in sentencing each of you.
Parity
58In sentencing each of you I have also had regard to the principle of parity.
59Insofar as your respective offending is concerned, in my view your roles in respect of the burglary, criminal damage and affray charges are broadly similar and do not, in and of themselves, justify any disparity in sentence between you. However, I am dealing with you Mr Walker for additional offences arising from the incident with Mr Khan; and further have to take into account that you do have a recent, relevant prior conviction for affray and causing injury. Insofar as your personal circumstances are concerned, you Mr Graham, come before the court as a youthful offender with a more limited prior criminal history. Whilst you Mr Walker have a more substantial criminal history, but have suffered significant deprivation throughout your formative years which must be taken into account in sentencing.
60Ultimately there are some factors which justify a disparate sentence between the two of you – not least your youth Mr Graham; and your relevant prior conviction and involvement in additional offences on this occasion, Mr Walker. Accordingly the sentence imposed on you, Mr Graham, is lower than that imposed on you, Mr Walker.
Sentencing Submissions
61Ms Dubroja submitted on your behalf, Mr Walker, that a combination sentence of a period of imprisonment (no longer than the time which you have already served) and a community correction order, would be an appropriate disposition in this matter. She submitted that such a sentence would address both the gravity of your offending and the need to give weight to the sentencing purposes of general deterrence, specific deterrence, denunciation, community protection and just punishment, whilst also acknowledging the mitigating factors in this matter and allowing an opportunity for you to continue on your path to rehabilitation.
62Mr Sturges submitted on your behalf Mr Graham that a term of imprisonment (no longer than the time which you have already served) would be an appropriate disposition in your case as it would reflect the overall criminality of your offending and address the relevant sentencing factors. In the event that I was not in agreement with this submission, Mr Sturges submitted that a term of imprisonment in combination with a community correction order should be imposed.
63Mr White, on behalf of the prosecution, did not cavil with the sentencing submissions made by each of your counsel. However he did submit that there was a potential for too much disparity in the sentence between each of you if I was to place you Mr Walker on a sentence which combined imprisonment and a community correction order, but did not also impose a community correction order on you, Mr Graham.
Parsimony and Availability of Community Correction Order as a Sentencing Disposition
64Following the plea in this matter, I had you both assessed for your suitability to undertake community correction orders. You both engaged well with that process and were assessed as suitable.
65Having carefully considered the various sentencing considerations raised by this case, I am of the view that despite the seriousness of the offending by each of you, that all of the sentencing purposes can be achieved in each of your cases through the imposition of a community correction order in combination with a period of imprisonment which does not exceed the period which each of you have already served in custody. To place either of you back in custody now would not be conducive to your ongoing rehabilitation, nor to ensuring long term community protection. There is a difference in the length of the terms of imprisonment and community correction orders which I have imposed in each of your cases for the reasons already outlined above in respect of parity. However, I note that in each of your cases I have also taken into account the principle of totality in arriving at the length of the term of imprisonment and the length of the community correction order to be imposed.
Sentence – Mr Walker
66Mr Walker, on charge 1 (burglary) and charge 2 (criminal damage) you are convicted and sentenced to an aggregate term of imprisonment of 6 months.
67On charge 3, affray, you are convicted and sentenced to a term of imprisonment of 6 months.
68I direct that 3 months of the sentence imposed on charge 3 be served cumulatively on the aggregate sentence imposed on charges 1 and 2. That results in a total effective sentence of 9 months’ imprisonment.
69Additionally, in respect of charges 1 and 2, and on charge 4 (make threat to inflict serious injury), and related summary charge 9 (unlawful assault) – you are convicted and placed on a community correction order for a period of 12 months commencing today. In addition to the mandatory conditions of the order you will be subject to the following special conditions:
(a) you must report to South Morang Community Correctional Services within 2 clear working days of the commencement of this order;
(b) you will be under the supervision of a Community Corrections officer for the entire period of the order;
(c) you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed;
(d) you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed; and
(e) you must participate in programs and/or courses that address factors relating to the offending as directed.
70Do you understand each of these conditions Mr Walker?
71OFFENDER WALKER: Yes.
72HER HONOUR: I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Corrections and the matter will be brought back before me. One of the potential outcomes if you breach the order is that you may fall to be re-sentenced and may face a term of imprisonment. Do you understand that?
73OFFENDER WALKER: Yes.
74Given all of those matters which I have told you and the conditions which apply, do you consent to undertaking that community correction order?
75OFFENDER WALKER: Yes.
Pre-Sentence Detention
76HER HONOUR: I declare that a period of 299 days of pre-sentence detention has already been served in respect of this sentence, and I order that such declaration and its details be entered in the records of the court.
77I note that although I have imposed a term of imprisonment which is less than the total period of time which you spent in custody, I have taken into account the additional days which you spent in custody when determining both the length of the community correction order and the conditions imposed.
Section 6AAA Declaration
78Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a term of imprisonment of 2 years and 3 months imprisonment with a non-parole period of 18 months.
Sentence – Mr Graham
79Mr Graham, in respect of charge 1 (burglary) and charge 2 (criminal damage) you are convicted and sentenced to an aggregate term of imprisonment of 4 months.
80On charge 3 (affray), you are convicted and sentenced to a term of imprisonment of 4 months.
81I direct that 2 months of the sentence imposed on charge 3 be served cumulatively on the aggregate sentence imposed on charges 1 and 2. That results in a total effective sentence of 6 months’ imprisonment.
82Additionally, in respect of charges 1, 2 and 3, you are convicted and placed on a community correction order for a period of 8 months commencing today. In addition to the mandatory conditions of the order you will be subject to the following special conditions:
(a) you must report to Frankston Community Correctional Services within 2 clear working days of the commencement of this order;
(b) you will be under the supervision of a Community Corrections officer for the entire period of the order;
(c) you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed;
(d) you must undergo mental health assessment and treatment as directed; and
(e) you must participate in programs and/or courses that address factors relating to the offending as directed.
83Do you understand each of these conditions Mr Graham?
84OFFENDER GRAHAM: Yes.
85HER HONOUR: I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Corrections and the matter will be brought back before me. One of the potential outcomes if you breach the order is that you may fall to be re-sentenced and may face a term of imprisonment. Do you understand that?
86OFFENDER GRAHAM: Yep.
87HER HONOUR: Now Mr Graham, Corrections may have already advised you of this but in terms of your ability to return to Queensland whilst on the order, the Victorian Corrections office will make enquiries of Logan City Probation and Parole Office in Queensland as to whether your case can be transferred to them for management. In the event that Logan City refuses the transfer, you will be required to remain in Victoria until you have completed your CCO in 8 months’ time. Do you understand that?
88OFFENDER GRAHAM: Yep.
89Given all of those matters which I have told you and the conditions which apply, do you consent to undertaking that community correction order?
90OFFENDER GRAHAM: Yes.
Pre-Sentence Detention
91I declare that a period of 211 days of pre-sentence detention has already been served in respect of this sentence, and I order that such declaration and its details be entered in the records of the court.
92As with Mr Walker, I note that although I have imposed a term of imprisonment which is less than the total period of time which you spent in custody, I have taken into account the additional days which you spent in custody when determining both the length of the community correction order and the conditions imposed.
Section 6AAA Declaration
93Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective term of imprisonment of 20 months, with a non-parole period of 13 months.
Ancillary Orders
94Pursuant to section 78(1) of the Confiscation Act 1997, I make a disposal order in respect of each of the items listed in the schedule to the draft disposal order.
95In relation to the s78(1) disposal order, I will remove from the list of items the pair of black Nike shoes.
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