Director of Public Prosecutions v Wallace
[2024] VCC 1154
•27 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01694
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM WALLACE |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2024 | |
DATE OF SENTENCE: | 27 May 2024 | |
CASE MAY BE CITED AS: | DPP v Wallace | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1154 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty - intention exposing emergency worker to risk by driving (aggravated) - theft - summary charges - non-parole period.
Legislation Cited: Crimes Act 1958, Road Safety Act 1986, Sentencing Act 1991
Cases Cited:R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571
Sentence: 14 months imprisonment, 4 months non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Ms M. Greener | Emma Turnball Lawyers |
HER HONOUR:
1William Wallace, you have pleaded guilty to the following charges:
·Two charges of the aggravated offence of intentionally expose emergency worker to risk by driving, contrary to s 317AD(1)(a) of the Crimes Act 1958, which carries a maximum penalty of 20 years’ imprisonment, and
·Two charges of theft, contrary to s 74(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years’ imprisonment.
2You have also agreed to the transfer of one summary charge, being a charge of driving a motor vehicle without a license, contrary to s 18(1)(a) of the Road Safety Act 1986, which carries a maximum penalty of 60 penalty units or six months’ imprisonment.
3I note that Charges 1 and 2 are each a relevant category 2 offence under the Sentencing Act 1991, mandating that a term of imprisonment must be imposed unless certain exceptions are made out.
Circumstances of Offending
4The circumstances of the offending were set out in a Summary of Prosecution Opening for Plea. At the time of the offending, you were aged 32 and you were residing in Dandenong. You were not licensed to drive a motor vehicle in Victoria, and you did not own a car.
5Between 8:00 pm on Tuesday 30 August and 2:00 am on Wednesday 31 August 2022, you stole a gold coloured 1988 Nissan Skyline, belonging to Frank Villante from an address in Menzies Creek.
6At approximately 10:51 pm on 31 August, you were captured on CCTV driving the vehicle into the Caltex Service Station located at 380 South Gippsland Highway, Cranbourne. You proceeded to put $51.66 worth of fuel into the car before driving away. You made no attempt to pay for the fuel.
7You later arrived at 75 Lesdon Avenue, Cranbourne, driving the Nissan Skyline.
8On 1 September 2022, police officers First Constable Cayden Bullied and First Constable Matthew Crichton were conducting mobile patrols in a marked police vehicle. This was a white Volkswagen van with police markings, being blue and white reflective checks down the sides, the word ‘Police’ across the bonnet and visible emergency lights affixed to the roof of the vehicle.
9At approximately 8:50 pm, Bullied and Crichton observed the Nissan Skyline parked in the driveway of 75 Lesdon Avenue. On conducting a check of the registration, the police officers became aware that the Skyline was listed as stolen.
10Officer Bullied positioned the marked vehicle in Toirram Cresent, which intersects with Lesdon Avenue at a T-intersection, directly opposite 75 Lesdon Avenue. The police officers maintained observation of the address and the Nissan, which was parked forward directly into the gravel driveway. There was another vehicle parked next to the Nissan Skyline. There was also a Ford Ranger reverse parked on an angle, partially blocking the Skyline.
11At approximately 8:55 pm, Bullied and Crichton observed an unknown male exit the front door of the premises. The male appeared to spot the police vehicle and then run back into the home. At 9:20 pm, a female was observed exiting the front door of the property. She moved quickly toward the Ford Ranger, getting into the driver’s seat. She was identified to be Sharlene Dike, who was a co-accused.
12You then also left the house and moved quickly towards the Nissan Skyline and got into the driver’s seat. Bullied and Crichton believed you were attempting to flee the address in the stolen Nissan. To prevent this from happening, Bullied moved the police vehicle so that it was blocking the driveaway.
13Ms Dike reversed the Ford Ranger back towards the house, so that it was no longer blocking the Nissan Skyline. She then exited the Ford Ranger and ran back into the house.
14At this time, the Nissan Skyline was parked about half-way up the driveway. You then reversed the stolen car directly into the front of the marked police vehicle which was towards the fence line (Commencement of Charge 1 and 2). You then drove the car forward into the drive away, as far as possible.
15You again reversed the Nissan Skyline into the marked police vehicle, this time with more speed, due to the run up of approximately 10 metres. Again, you drove the car as far forward as possible. For the third time, you prepared to reverse the Nissan. You placed your left arm on the back of the front passenger seat, turning your head over your shoulder to look towards the marked police vehicle. Bullied observed that you looked directly at him.
16Then for the third time, you reversed the Nissan Skyline at speed into the marked police vehicle. You again drove the car forward into the driveway. At this point, Bullied decided to take evasive action, due to the risk of further damage to the police vehicle and injury to himself and Crichton. Bullied reversed the police vehicle out of the driveway and into Toirram Cresent.
17You then reversed the Skyline into the middle of Lesdon Avenue, at which point it appeared that you were having problems with the car. You then drove the car back into the driveway of number 75. You exited the car, leaving the driver door wide open, the engine running and in neutral. You ran into the rear of the property.
18The Nissan Skyline, now unoccupied, began to roll backwards out of the driveway, out on to Lesdon Avenue and down to Torriam Cresent. Bullied and Crichton had to reposition the police vehicle to avoid another collision with this vehicle. The Nissan eventually came to rest on a nature strip further down Torriam Cresent.
19As a result of your offending, the police vehicle sustained significant damage to a value of approximately $8,400, rendering it inoperable.
20Bullied and Crichton secured the Nissan Skyline, to prevent it from moving any further. They were unable to turn off the engine, as the ignition barrel was heavily tampered with to the point that it would not have been possible to use a key. There was a half pair of scissors on the floor, believe to have been used to start the vehicle. The car was towed in evidence to a secure tow yard, where it was stored in a secure shed.
Investigation
21On 5 September 2022, a forensic sample of the Nissan Skyline was undertaken. Latent fingerprints were developed from the exterior of the vehicle, near the petrol cap, but later deemed too poor quality to provide a match to anyone. A black cap seized from the vehicle was tested and has since been forensically matched to you.
22Initially police arrested the wrong person in relation to the ramming conduct. The individual was remanded in custody and was later moved to Hopkins Correctional Centre. On 25 September 2022, you were taken into custody on unrelated offending. You were moved to Hopkins Correctional Centre on 10 October 2022, where you remained an inmate until 21 December 2022.
23On 23 November 2022, the informant in this matter received a phone call from a witness, who provided second hand information he claimed had come from the individual who had been wrongly accused of this offending. This information was provided during a prison phone call. The phone call outlined that the person in custody for the offending did not commit the alleged crimes and that you, the actual offender were in the same prison. You were purportedly refusing to come forward to police. You were named as the offender.
24However, on 6 December 2022, you approached Ms Downie, the Records Supervisor at Hopkins, with a prepared statutory declaration. You signed the statutory declaration in the presence of Ms Downie. It contained your confession to the ramming of the police vehicle with the Nissan Skyline, registration 1DJ 4CV. A copy of the declaration was provided to the informant and an investigation commenced.
25On 15 December, you received a phone call from your mother. During the call, you made a further confession to the police vehicle ramming, stating 'I rammed police five times' and that, 'the police don’t know it is me. They can’t identify me'.
26On 12 January 2023, the informant received a forensics report relating to DNA swabs taken from the steering wheel of the Skyline and a glove located in the driver’s seat pocket. The swabs gave a strong DNA match to you for both items and importantly excluded any match to the individual who had originally been remanded for this offending.
27On 27 February, all charges against the wrongly accused individual were withdrawn.
Victim Impact
28There were no victim impact statements tendered on the plea.
Procedural History
29You were ultimately charged in mid-June 2023, at which time you were already in custody for other matters. This matter resolved in the Magistrates Court, following multiple committal case conference listings. The matter was committed to this Court by way of straight hand up brief on 27 September 2023. A plea hearing occurred on 16 May this year.
30I note that there is no attributable pre-sentence detention in this matter.
Prior Criminal History
31You have admitted a lengthy prior criminal history, which dates back to 2011. Your criminal history includes convictions for dishonesty offences and violence related offences, including intentionally cause injury, unlawful assault, assault emergency worker on duty as well as carjacking. You have a poor driving record and have multiple priors for driving related offences, including drive whilst disqualified, unlicensed driving and drive in a manner dangerous.
32You have, throughout your criminal history, previously received numerous periods of imprisonment. You have been afforded the opportunity to be placed on community correction orders, which you have breached. None of this bodes well for your prospects of rehabilitation.
33Relevantly, you have prior convictions for theft, theft of motor vehicle and the aggravated offence of recklessly expose emergency worker to risk by driving. You are currently serving a term of imprisonment for offending that appears to have a number of similarities to some of the offending here. You received that sentence in the Magistrates' Court on 7 February 2023 for multiple offences which were committed between it seems late July and early September 2022. The last in that most recent series of offending occurred within a week of the offending for which you now fall to be sentenced. Indeed the last of that offending culminated in you sustaining injuries within a stolen motor vehicle during a collision. You were hospitalised on 4 September 2022 and then remanded in custody.
34The total effective sentence imposed last year in the Magistrates’ Court was 1 year and 8 months imprisonment with a non-parole period of 14 months. There was a number of days pre-sentence detention reckoned as time served. That series of offending reportedly began within months of you being released from custody in May 2022.
35Your counsel submits that had you been sentenced for this offending at the same time, the court would have likely imposed some concurrency between the sentences on each set of offending. Whilst this is a relevant consideration, it must also be borne in mind that the reason you were not charged until June 2023 for this offending was entirely of your own making. Indeed, police had arrested the wrong person and he was remanded in custody for a number of months. To your credit, as I have just set out, you did identify yourself to police and admitted your involvement some months before any forensic evidence linked you to the crimes. I take this into account and I give this some weight.
36Putting aside the reasons why you were not sentenced for this offending at the same time as for the earlier offences, I accept that had you been sentenced for all of the offending, which occurred reasonably proximate in time to each other, then there would have likely been some concurrency across all of the sentences. To that end, I am prepared to order some concurrency on your sentences today, with the sentence that you are currently serving. I must take into account totality, that is the entirety of the time that you will be spending in prison, which I will return to again in a moment.
Personal Circumstances
37You are now aged 32. You are the second eldest child born to your father Billy and mother Jeanette. You were raised in the Hampton Park area. You were born four weeks premature with your bowel outside your body. You were placed into intensive care and required five major operations.
38Your parents both experienced difficult childhoods. Your father witnessed the death of his own father when he was 12 years old and was subsequently placed into State care. Your father spent extensive periods of time in custody. Your mother had her own issues, growing up in a household stained by substance use and gambling.
39You have had an extremely unstable and traumatic upbringing. This is set out in detail in both the submissions filed on your behalf, and in the DHS history provided. I cannot possibly cover all of the circumstances of your upbringing here. Quite clearly, you have been through a dreadful amount of trauma from a very young age. Your father was an alcoholic, who frequently perpetrated violence against your mother. He was also violent towards you and your siblings. Your mother also suffered from poor mental health.
40You struggled academically and found it difficult to concentrate. You demonstrated behavioural issues, acting with aggression and fighting at school in your primary years. Unsurprisingly, it is said that you learned such behaviour from seeing your father hit your mother. You were diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and later attended at Berry Street School. You never attended high school and did not have any further involvement in mainstream education.
41You became the subject of a notification to the Department of Human Services (DHS) Child Protection at the age of six, after presenting with what is described as 'very concerning emotional difficulties'. You were evidencing self-harming behaviours, which included clawing your own face and cutting your arms. Your parents were reportedly not providing you with adequate food and fluid. You had also been exposed to parental domestic violence and had sustained substantial emotional trauma. DHS received a total of nine notifications concerning your welfare and safety between 2000 and 2003.
42At the age of 11, there was a notification to DHS regarding concerns that there was a known paedophile supplying children in the area with marijuana in return for sexual favours. You would frequently visit this man before catching the bus home from school. Your mother had known the man since she was a child.
43A further notification recorded ongoing concerns regarding your behavioural issues. You were reportedly aggressive, oppositional and difficult for your parents to manage. You were using substances and had been expelled from school. In August 2003, your mother was observed intoxicated while out at night with you and your siblings. Your mother reportedly put a knife to her own throat and threatened suicide in front of you.
44You entered residential care in approximately 2005 aged 13. You reported within a DHS assessment that you had been subject to further abuse while you had been removed from your parents and whilst placed in care. You disclosed this abuse to your grandfather, and the matter was the subject of criminal proceedings following which you were awarded crimes compensation. That you were abused whilst you were supposed to be under the protection of the State, removed from your own parents who were unable to care for you properly, is a very sad state of affairs. It is perhaps unsurprising that you have found it difficult to cope over the years and that you have engaged in repeated anti-social and criminal behaviour.
45There seems to be a significant correlation between your substance abuse and history of criminal offending. You commenced substance use in your early teenage years. You were twice rendered unconscious as a result of chroming. You have previously used cannabis, but reportedly ceased use as you believed it did not agree with you. You began using ice at the age of 20, by way of smoking and later through intravenous use.
46You have been in and out of custody for much of your adult life. You have not been gainfully employed, except for a period of one week where you worked mowing lawns. You have previously been a recipient of the Disability Support Pension.
47You have a son from a previous relationship, who is now approximately 13 years. He lives in Sydney with his mother and you have not had any contact with him since being in custody.
48Following your latest release from custody in May 2022 you resumed using illicit substances. You had stayed with family members for a period of time and then quickly began a relationship. After a period that relationship ended and you found yourself homeless. The offending here occurred in this context.
Childhood Deprivation
49As I have said, your background is characterised by a history of significant trauma, neglect, exposure to violence, abuse and very limited family support. Again as noted, from an early age you were exposed to verbal and physical abuse at home. Your home life was particularly volatile, characterised by environmental and emotional neglect. You were the victim of abuse at the hands of two perpetrators. You left home in your early teenage years and as I have said, were placed in State care. In light of this, I accept, and there is no dispute from the prosecution that the principles enunciated in the case of Bugmy v The Queen[1] have application.
[1] (2013) 249 CLR 571
50This is relevant to the court's assessment of your moral culpability as well as general deterrence. Pursuant to the principles in Bugmy, an offender's background of deprivation is relevant because his or her moral culpability for the particular offence is likely to be less than the culpability of an offender whose formative years have not been marred in that way. I have taken this into account and moderated your sentence accordingly. However, whilst a disadvantaged background may have the effect of reducing moral culpability, it will also increase the importance of protecting the community.
Mental Health
51Psychologist Carla Lechner assessed you in 2018 and 2024. In 2018 she observed that your offending was directly related to and during substance abuse problems. You still present with symptoms of stimulant use disorder. Furthermore, she considers that your ADHD has persisted into adulthood.
52You have previously attempted suicide and last engaged in self-harm whilst in custody in 2018. You present in the borderline range of intelligence with an IQ of 77. Your score on the assessment of psychological distress was at a level indicative of you being 'likely to be severely psychologically distressed'. You have presented with all symptoms of PTSD including flashbacks, nightmares, avoidance, hypervigilance and a sense of threat at a moderate to extreme level, in addition to long-term symptoms indicative of complex PTSD arising from your exposure to Complex Developmental Trauma.
53Ms. Lechner considers that your diagnosis of Complex Traumatic Stress Disorder, has contributed to your emotional and behavioural dysregulation that is aggravated by your drug use. She notes that you had symptoms of these disorders at the time of the offending and that they have been long-term and chronic in nature.
54
Your counsel submits that all six limbs as articulated in R v Verdins[2] are enlivened here. No issue is taken by the prosecution with this. I accept that your mental health played a significant role in your offending, however these symptoms have no doubt been exacerbated by your substance abuse. You admit you were substance affected at the time of the offending. It is therefore difficult to disentangle the role that your drug use played from your mental health issues. However I accept that there is a nexus between your mental health and the offending. As |
Ms Lechner notes, the combined effect of your drug intoxication and your ADHD, specifically, poor information processing and poor impulse inhibition, no doubt contributed to your poor judgement and decision-making.
[2] (2007) 16 VR 269.
55Ms Lechner notes that imprisonment is more difficult for persons suffering complex PTSD on account of the inherently aggressive and threatening nature of the custodial environment which can lead to a resurgence of traumatic memories - you have reported a high level of hypervigilance, nightmares and intrusive thoughts whilst in prison. Whilst I accept that all six limbs of Verdins are enlivened, and have moderated your sentence accordingly, when considering the sixth limb, I do note the opinion of Ms Lechner, that your symptoms could potentially further deteriorate in custody. However, when in the community, your anxiety levels also increase. Thus, Ms Lechner notes that you feel caught between two environments that adversely impact on your mental health in some way. The reality is that you are in danger of being institutionalised.
56Previous attempts to reintegrate you into the community following a term of imprisonment have been relatively unsuccessful. Ms Lechner opines that you are at risk of becoming entrenched in a pattern of recidivism if you are not engaged with intensive treatment supports both in your custody and upon your release. What that means is that you are at risk of continuing to reoffend if you do not get the support and help that you need. She recommends a long-term residential drug facility as a good stepping stone for your return to the community. You do remain a high risk of reoffending particularly if your drug addiction and underlying mental health issues are not addressed.
Remorse
57I accept that you are remorseful for this offending. You have expressed your regret for your actions to Ms Lechner. You have expressed embarrassment and shame. You told Ms Lechner that you understand the police officers could have been seriously injured. You are disappointed to find yourself back in custody but have admitted to a high level of anxiety and inability to cope in the community. You also said you were disappointed with yourself because you promised your father previously that it would be the last time that you would be in gaol. You worry that this situation will stress him. You have also told Ms Lechner that you are often sorry after the event in the realisation that your offending was the result of rash and hasty decisions on account of your drug intoxication and high level of emotional arousal.
Plea of Guilty
58I take into account your plea of guilty. It was a plea at an early opportunity. It has significant utilitarian value. You have saved the community the time and expense of a trial. You have spared witnesses from having to give evidence. The sentence should be appropriately discounted to reflect this. It is also evidence of some remorse.
59At the time when you indicated your intention to plead guilty, the courts were facing a backlog associated with the COVID-19 pandemic. Whilst there has since been an audit of outstanding trials - and the backlog of trials is now relatively the same as before the pandemic - there must be some recognition that, in entering a plea of guilty when you did, you have contributed to the reduction in the backlog. To that end, your plea of guilty warrants an appreciate amelioration of sentence consistent with what the Court of Appeal espoused in Worboyes v The Queen[3], given the timing of that plea.
[3] [2021] VSCA 169.
Nature and Gravity of Offending
60The seriousness by which Parliament views offences of this nature is reflected in the maximum penalties applicable, particularly with respect to the charges of the aggravated offence of intentionally exposing emergency workers to risk by driving. It is a high maximum penalty to reflect the gravity of offences of this nature.
61Here, in an effort to avoid apprehension, you drove not once, not twice, but three times in the direction of the police vehicle. On the final occasion, officers moved the vehicle before it could be struck by the car that you were driving. In each instance, you put police officers in danger. These are people who are going about their job. They do not deserve to be put at risk at work. They do not deserve to be injured. I accept that the offending was spontaneous, but those who commit these offences are often acting spontaneously, in the heat of the moment, and usually in an effort to evade police. Thankfully, no one was injured in the course of your offending.
62It is submitted that the offending is towards the lower end and it seems that the prosecution do not significantly cavil with this categorisation of your offending. But whilst the offending needs to be evaluated in the context of your personal history and personal circumstances, the court cannot ignore that it occurs in the context of a very poor history of similar offending in which you have demonstrably disregarded authority or behaved in a similar way. You are not to be punished for your prior offending, but it is particularly relevant when it comes to an assessment of your prospects of rehabilitation.
63Theft of motor vehicle is also serious. A message needs to be sent to the community that vehicle thefts will not be tolerated. For an individual, having their car stolen can be upsetting, frustrating and downright inconvenient. Importantly, those seeking to evade police capture should understand that this offending will attract punishment.
Sentencing principles
64General deterrence is an important sentencing consideration. So too is specific deterrence having regard to your extremely poor criminal history including many run ins with police members. It is very concerning and sadly it seems not much has deterred you in the past.
65It is also important to denounce your conduct and impose a sentence that is just in all of the circumstances. Community protection is also a relevant consideration given that you placed emergency workers, members of your community, at risk. This has to be balanced with your rehabilitation. Realistically those prospects are poor, given your prior criminal history, lack of community supports, your mental health issues, and your history of drug abuse. But I would hope that as you get older you can begin to appreciate that life with a revolving door in an out of gaol is not what you want for yourself.
66I must take into account totality, as I have discussed. You have been in gaol since September 2022. Taking this time into account, I must ensure that the sentence imposed is just and proportionate. This is necessary to avoid a crushing sentence.
67Given that the offending occurred within the same time frame as the offending for which you are serving sentence, I do intend to order a degree of concurrency despite there being a presumption of cumulation for offences under s 317AD(1)(a) pursuant to s 16(3D) of the Sentencing Act. Specifically this provision requires that every term of imprisonment imposed on a person for an offence against this section, must unless otherwise directed by the court, be served cumulatively on any uncompleted sentences of imprisonment, whether before or at the same time as that term.
Submissions
68Your counsel submits that there should be largely concurrency between the sentences. As I have said, whilst there should be some concurrency, the offending itself needs to attract a degree of cumulation both to properly reflect your conduct and to take into account deterrence and community protection. I intend to order some cumulation which will, in effect, create a longer period in custody and I propose setting a further period as a non- parole period, which will involve some further time before you become eligible for parole. However, I accept that you have the best chance of rehabilitation if there is a reasonable period on parole to assist with your transition. Turning now to the sentences to be imposed.
Sentence
69On Charge 1, the charge of intentionally expose emergency worker to risk by driving as an aggravated offence, you are convicted and sentenced to 12 months' imprisonment.
70On Charge 2, the same charge, aggravated offence of intentionally exposing an emergency worker to risk by driving, you are convicted and sentenced to 12 months' imprisonment.
71On Charge 3, the charge of theft, you are convicted and sentenced to 6 months' imprisonment.
72On Charge 4, a further charge of theft, you are convicted and sentenced to 1 month imprisonment.
73On the summary charge, you are convicted and sentenced to 7 days' imprisonment. I am going to order that the sentence imposed in relation to this summary charge be served concurrently with other sentences imposed this day.
Orders for cumulation
74The sentence imposed on Charge 1, the sentence of 12 months' imprisonment, is to be the base sentence. I order that months of the sentence imposed on Charge 2 is to be served cumulatively on the sentence imposed on Charge 1.
75I order that 2 months of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 1 and others sentences imposed this day.
76I order that the sentence imposed on Charge 4 be served concurrently with the sentence imposed on Charge 1 and other sentences imposed this day.
77This makes a total effective sentence of 18 months' imprisonment. I order that six months of this sentence be served cumulatively on the existing State sentences. That means 12 months of this sentence, for avoidance of doubt, should be concurrent with the existing sentence.
78Having regard to the fact that you are currently serving sentence – it is my intention to impose a non-parole period, taking into account the existing non-parole period. In effect, it is my intention to add four months by way of a non-parole period which will effectively mean that the non-parole period across the board would be 18 months. So it is my intention that you serve a minimum of four months for this offending before you are eligible to be released for parole.
Pre-sentence detention
79I take into account pre-sentence detention as it applies in relation to all of the time that you have spent in custody, which I am told is 612 days, that is to be reckoned as time served.
Licence cancellation
80
I also order that in relation to Charge 3, the charge of theft of motor vehicle, that your licence be cancelled and you be disqualified from driving for a period of
12 months. I make this order under s 89(4) of the Sentencing Act.
s. 6AAA
81I indicate that but for your plea of guilty I would have sentenced you to a total effective sentence of two years and three months' imprisonment and there would have been a greater non-parole period of seven months.
Ancillary Orders
82Finally, I make the orders for disposal as sought by the prosecution, which is by consent.
83I am just going to confirm with counsel now whether or not there are any matters that require correction or that I have overlooked.
84MS HOLMES: Not that I believe, Your Honour, thank you.
85HER HONOUR: Just to be clear, it is my intention to order a degree of concurrency. So for the purposes of s16(3D) of the Sentencing Act, the direction is that there be some concurrency as I have already set out in my reasons for sentence. Yes, thank you. We will adjourn the court. Ms Greener, you can have a moment to speak to your client now if you need to.
86MS GREENER: Thank you, Your Honour.
87HER HONOUR: Thank you.
UPON RESUMING ON 28 MAY 2024 FOR FURTHER SENTENCING HEARING
88HER HONOUR: So yesterday I said that I was going to sentence Mr Wallace on Charge 1, to 12 months' imprisonment; Charge 2, 12 months' imprisonment; Charge 3, 6 months' imprisonment; Charge 4, 1 month imprisonment; and on the summary charge, seven days. And I had intended to make Charge 1 the base sentence and order that four months of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1; and that two months of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 1 and other sentences; and the sentence on Charge 4 be served concurrently.
89What that gave rise to, was a head sentence, in effect of 18 months and I ordered that six months of that sentence be served cumulatively on the State sentence. As I said, I did that on the understanding that he still had 12 months to serve on the State sentence.
90What I am now proposing to do is amend the sentence slightly so that:
91On Charge 1, Mr Wallace is convicted and sentenced to 10 months' imprisonment.
92On Charge 2, convicted and sentenced to 10 months' imprisonment.
93On Charge 3, convicted and sentenced to 4 months' imprisonment.
94On Charge 4, convicted and sentenced to 1 month imprisonment.
95The summary charge sentence would be the same, 7 days. The base sentence would be Charge 1, so that is the 10 months, and I order that 2 months of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1; and 2 months of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 1, and other sentences imposed today. What that equates to is a total effective sentence of 14 months. I propose to order that the sentence on Charge 4 be served concurrently with the sentence imposed on Charge 1 and other sentences.
96As I have said, the total effective sentence would be 14 months. The effect of that is a sentence that is slightly less in terms of a head sentence than what I was otherwise going to give him yesterday, and so as not to prejudice Mr Wallace, I would fix the period before which he becomes eligible for parole as 4 months.
97
The sentence would start today. It does give rise to a
non-parole period that is considerably shorter than the head sentence, and I have to assume that Mr Wallace is going to serve every day of the sentence that is imposed – but I want to ensure that he is not prejudiced in terms of the effect of what I was trying to achieve yesterday by virtue of the fact that I had understood that his sentence would not expire until May of next year. Does that make sense?
98MS HOLMES: It does, Your Honour, and I presume Your Honour's reasoning will include that he has missed out entirely on any opportunity for concurrency with the last sentence, as to why there is a disproportionately short non-parole period.
99HER HONOUR: That's right, yes, yes. Now logistically does anybody see any difficulties with that sentence?
100MS HOLMES: None, Your Honour, no.
101HER HONOUR: All right. Ms Greener, do you want to say anything?
102MS GREENER: No, Your Honour.
103HER HONOUR: So what I will do is, I am going to explain to Mr Wallace why I am doing what I am doing and articulate again these reasons for sentence. As I have said, I have in effect reduced the head sentence because I accept that Mr Wallace does not have the advantage of the sentence running concurrently for the most part with the Magistrates' Court sentence, which I had thought expired on 24 May 2025. Do you want to say anything about that, Ms Greener?
104MS GREENER: Your Honour, just to clarify, the effect of what you have said is that if he is not eligible for parole then yesterday's situation wherein he had six months to serve is now 14 months?
105HER HONOUR: No. Part of this is based on your submissions, which indicated that his sentence would expire on 24 May 2025. So I had incorrectly understood that he still had 12 months left on his sentence.
106MS GREENER: Yes. Sorry, Your Honour. I didn't realise I made those submissions. I apologise for misleading the court.
107HER HONOUR: No, that's all right and look it's my fault too, but on the basis that I thought he still had another 12 months to do on the Magistrates' Court sentence, what I was seeking to do was to give him a total effective sentence of 18 months, 12 of which would run concurrently with the 12 months that I thought he had left on his Magistrate's Court sentence.
108MS GREENER: Yes.
109HER HONOUR: And then to add six months to the top of that. So in effect it would have meant serving 18 months but 12 months of that was to be concurrent with the Magistrate's Court sentence, with a non-parole period of four months. What I am doing now is, bearing in mind that he doesn't have the benefit of the concurrency, I am proposing a total effective sentence of 14 months which is four months shorter than the 18 months that I had proposed sentencing him on yesterday. And as I have said, it is a shorter period because I had thought yesterday, he was still undergoing sentence for the next 12 months and that he would do an extra six months on top of that, with the sentence that I am imposing.
110I realise that gives a fairly disproportionate non-parole period, an 18 month sentence with four months non-parole period, and that really wasn't what I was seeking to achieve on the understanding that he still had 12 months left to serve on the Magistrate's Court sentence. So bearing in mind that he has lost that opportunity of concurrency, it is my intention to impose a sentence which is a head sentence of 14 months. So it is in effect less time as a head sentence than he would have served had he had to serve the 18 months. All right, does that make sense?
111MS GREENER: Thank you for clarifying that, yes it does.
112HER HONOUR: Yes, all right.
113MS GREENER: Thank you, Your Honour.
114HER HONOUR: All right, so I am just going to explain to you, Mr Wallace. Yesterday I went through my reasons for sentence and I went through the individual sentences that I was giving you on each charge. I went through the orders for cumulation, so what I was adding on top for each charge, and I set down a non-parole period. Now at the time that I gave that sentence yesterday, I understood that you were still serving a sentence, and I had understood that you would be serving that sentence until May of next year. That is clearly not the case. You will remember that yesterday I spent some time discussing the question of totality, that is the total amount of time that you would be in custody, and you will remember that I also in my reasons for sentence said that it was my intention to order some concurrency, that is that my sentence would run alongside for a large part, the sentence that was imposed on the Magistrate's Court, and that is despite what I said was a presumption that it would be cumulative.
115So my order yesterday was that in effect a total effective sentence I was imposing was 18 months, and my intention was that at the conclusion of the Magistrate's Court sentence, factoring in totality, that is the total sentence, what I was seeking to do was that 12 months of the sentence that I was going to impose was going to run alongside the sentence imposed in the Magistrate's Court with another six months on top of that.
116I have become aware that you have in fact completed the Magistrate's Court sentence. So any sentence I give you would just run from here on. Now, because you have already served the Magistrate's Court sentence, any orders for concurrency are in effect null and void, because you have already done that sentence.
117Now what that means is that your 18 month sentence would have started immediately with a non-parole period of four months, and that non-parole period when viewed in isolation with the head sentence that I was going to set down, is very short. It did not appear to be quite so short when I was viewing it in the context of you serving the sentence I was imposing, as well as the Magistrate's Court sentence. So on the understanding that you had only just become eligible for parole and that you were still undergoing sentence and that you would be for the next 12 months, my intention was to add, in effect, a non-parole period of four months to what I thought was the existing non-parole period.
118Now Ms Greener will no doubt explain to you what that means, but what that would have meant was my four months would go on top of the 14 months of a non-parole period that the Magistrate had given you. Now that it has become apparent that you have not just served the non-parole period in the Magistrate's Court, but you have also served the entirety of the sentence, I need to clarify my sentence and I need to do it in a way that does not prejudice the amount of time that you will spend in custody. That it does not prejudice the non-parole period that I had intended to set down yesterday. But I still need to give effect to the objectives of sentencing and I still need to take into account the principles of totality, bearing in mind that you have been in custody, as I understand it, since September 2022.
119So I do not propose to alter the non-parole period that I have already set out yesterday. That would be unfair on you if I were to change my sentence by increasing that period.
120Instead, what I am going to do is I am going to sentence you again. The sentences that I made yesterday have not been formally entered as order of the court because the error became apparent before the paperwork was filed. So yesterday I simply adjourned the matter for sentence today. This was after we had finished in court. So I had been through what the sentence was yesterday, I realised that this was an error, and I brought it back today just to correct that error and to make some adjustments to the sentence so that the non-parole period is the same, but the head sentence isn't as great as what I was going to give you yesterday.
121You still have to serve further time in custody but I had thought you were going to be serving it anyway and I was adding to that. So this is what I am going to sentence you to and as I said, Ms Greener will explain to you further.
122On Charge 1, which is the aggravated charge of exposing emergency worker to risk, you are convicted and sentenced to 10 months' imprisonment.
123On Charge 2, the same type of charge, you are convicted and sentenced to 10 months' imprisonment.
124On Charge 3, the charge of theft, you are convicted and sentenced to four months' imprisonment.
125On Charge 4, theft, you are convicted and sentenced to one month imprisonment.
126On the summary charge, you are convicted and sentenced to seven days' imprisonment, and that sentence is to be served concurrently with the other sentences that I am imposing today.
127Charge 1, the 10 months, will be the base sentence.
128I order that two months of the sentence imposed on Charge 2 is to be served cumulatively on the sentence imposed on Charge 1.
129I order that two months of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 1, and on other sentences imposed today.
130I order that the sentence imposed on Charge 4 be served concurrently with the sentence imposed on Charge 1 and other sentences imposed today.
131What this equates to is a total effective sentence of 14 months' imprisonment.
132I fix the period before which you become eligible for parole at four months. So that sentence starts today.
133Pursuant to s 18 of the Sentencing Act 1991, I declare 12 days pre-sentence detention to be reckoned as time served on these charges. And just for counsel’s benefit, the 12 days is the pre-sentence detention that the Sentence And Warrant Calculation Authority have advised us. So 12 days not including today. And I otherwise make the same order for disposal and licence cancellation.
134MS HOLMES: As Your Honour pleases.
135MS GREENER: As Your Honour pleases.
136HER HONOUR: Now, Mr Wallace, I will give Ms Greener an opportunity to explain all of that to you. Ms Holmes is there any technical difficulties from the prosecution's perspective?
137MS HOLMES: I don't think so, Your Honour, but then, I said that yesterday, so thank you.
138HER HONOUR: Yes, all right. What about from your point of view, Ms Greener?
139MS GREENER: No, Your Honour.
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