Director of Public Prosecutions v Wallace

[2018] VCC 1100

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00544

DIRECTOR OF PUBLIC PROSECUTIONS

V

ROBERT ANTHONY WALLACE

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bendigo – Trial .  Melbourne - plea and sentence
DATES OF HEARING:	Trial: 10 April – 30 April 2018; Plea: 17 April 2018
DATE OF SENTENCE:	18 July 2018
CASE MAY BE CITED AS:	DPP v Wallace
MEDIUM NEUTRAL CITATION:	[2018] VCC 1100

REASONS FOR SENTENCE
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Subject: Criminal Law - sentence
Catchwords: found guilty of 2 charges  burglary, 8 charges  theft, one charge criminal damage; recently released from prison prior to committing offence;  burglary of  car yard and private home -  theft of cars and other  items – both victims  lost money and affected by the crime -  offender now 30 years of age  difficult childhood -  excessive discipline as a child -  attacked and set alight as a teenager, suffered extensive burns and now suffers from post traumatic stress disorder -  heavy drug use  commencing as a teenager - currently serving another sentence - Two co-offenders sentenced to an aggregate sentence at Magistrates Court covering a range  of offences – parity to be considered – total concurrency for theft charges

Cases Cited: Verdins v R [2007] VSCA 102, Jennings v Morgan 2/6/1998 VSC at [16] – [17]
Sentence: Total effective sentence 4 years  with new non-parole period of 2 years 8 months; licence cancellation  and disqualification  5 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr H. Boyd-Wilson	OPP
For the Accused	Ms J. Clark	VLA

HER HONOUR: 

1Robert Anthony Wallace, you have been found guilty by a jury of two charges of burglary, eight charges of theft and one charge of criminal damage.  The offences occurred in July 2015 near Bendigo.

2The circumstances were that you had been released from prison shortly before this and had resumed a relationship with the mother of your four children, Reannon Davey.  You stayed at her house occasionally and at other times with another woman, Jasmine Aziz. 

3On the evening of 21 and 22 July, you and two other men, Leigh McElroy and Robert Barden, went to Phil Doherty Car Sales in Kangaroo Flat.  You gained entry to the car yard by pulling down a section of chain link fence, allowing you to climb over the fence and into the yard.

4From there, you entered the office by forcing open the door, causing the doorframe to split.  You forced open the safe and located the keys to ten cars, three of which you stole from the yard.  You also took other items, including a chequebook, an EFTPOS machine, a Rolodex, an office stamp, contracts of sale and other sales documents.  Those are Charges 1 and 2, burglary and theft.  You used one of the cars to ram the gates of the car yard down, causing the gates to be damaged beyond repair.  You and the co-offenders drove the three cars away.  One of them was a gold-coloured Ford Falcon registered number RMH 105.

5At about midnight the following night, 23 July, you left Reannon Davey's home in Golden Square with the two co-offenders and at 12.20 am the stolen gold-coloured Ford Falcon was crashed in Chum Street, not far from
Ms Davey's home.  The car was later found to contain items stolen from the car yard.  Your fingerprints were found on the driver's side door and this prompted the police to regard you as a suspect for the burglary.

6A few days later, on the night of 26 and 27 July, you and the two other co-accused committed a burglary in Boundary Road, Maldon, a property consisting of a house and several sheds.  This burglary is Charge 7.  From one of the sheds you stole a toolbox and a chainsaw, which is Charge 10, and from another shed a Nissan four-wheel drive Patrol, Charge 8, and a Yamaha Pee Wee motorcycle and a number of tools, Charge 9.

7You ransacked the house and stole a television set, cash of $1500, several bottles of alcohol, a chequebook, a file of personal documents, a toolbox containing ammunition and a 6 x 4 trailer.  That is part of Charge 10.  You also took from a bedside table the keys to the gun safe, which you unlocked, and stole from it a 12 gauge shotgun and a .22 rifle.  That is Charge 11.

8Later that morning, you and the other co-offenders took the stolen items to
Ms Davey's home and unloaded them and took them into the house.  In the early afternoon you were seen by a neighbour throwing an item over the fence from Ms Davey's house, which police believed from the description given by the neighbour was a firearm.  Police were watching the house, having observed a stolen car parked outside, and also saw you carrying a long item wrapped in cloth near the front of the house.

9Police found a shoeprint at the Maldon property which was later found to match the shoes you were wearing at the time of your arrest.  The stolen car parked outside was a Commodore, stolen from Phil Doherty's car yard on the night of 22 July.  Its registration plates had been removed and replaced with plates stolen from an unrelated stolen car.

10Police executed a search warrant at the house, believing you to be in the house, and while searching for you they found several items stolen from the Maldon property, including cheques from the owner's chequebook made out in large amounts of money payable to you, bearing the forged signature of the owner.  Other stolen items were found in the Commodore and your fingerprints were found on the car, as well as on a box containing bottles of alcohol stolen from the house at Maldon.  Several days later, police located your wallet at the home of Ms Aziz, containing more cheques made out to you from the same stolen chequebook.

11After your arrest on 5 August, police returned to Ms Davey's address and located more items stolen from the Maldon property.  The stolen Nissan four-wheel drive was found in Kangaroo Flat and your fingerprints were found on the registration plates, which had been removed and placed on the rear seat of the vehicle.  Upon your arrest you were remanded in custody.

12You are now aged 30, a man with a criminal history dating from January 2006 when you were aged 19.  Your previous offending covers a range of offences and includes offending connected with substance abuse, dishonesty, repeated driving offences, assaults and family violence.  Relevantly, you have no prior convictions for theft of a motor vehicle and only one conviction for burglary.  The context of that offending would appear to have its roots in your dysfunctional childhood, characterised by abandonment by your parents and ongoing abuse from your stepfather and having survived a serious assault resulting in severe and extensive burns.

13Your offending has resulted in various community-based orders and suspended prison sentences, with some breaches, and immediate prison sentences of gradually increasing length. 

14On 3 May 2017 you were sentenced to seven years' imprisonment with a non-parole period of four years and nine months for an armed robbery committed in July 2015.  You appealed against conviction and sentence.  That appeal was heard on 9 April 2018 but the appeal was refused.

15These experiences of prison have resulted in a degree of institutionalisation whereby you regard prison as a second home, providing the containment and structure that were lacking in your early life and which you struggled to provide for yourself.  I have referred to your early life and the details are set out in
Ms Clark's submissions and recounted by you to the psychiatrist,
Dr Fiona Best, who assessed you recently. 

16You never knew your biological father, and your mother re-partnered with the man who became your stepfather, Jodie White, and together they had a daughter.  That relationship broke up after about two years and your mother left, taking her daughter and leaving you with Mr White, telling him that he had to take you or you would go to ‘welfare’.  Mr White cared for you on his own until you were about ten, when in 1997 he met a woman with two sons of her own and with whom Mr White had a daughter about a year later.

17You began to be physically disciplined as the scapegoat for the misbehaviour of the other children and you were, in your words, flogged and bashed.  When you were 13 your step-parents separated and you remained with your stepfather.  You began spending time on the street, drinking and smoking cannabis, and you were physically disciplined when you returned home.  At the age of 15 you lived with your mother for a short time but left because she made you beg for food and alcohol, telling you to attend the local church asking for money to pay for your train fare, which you thought was immoral.

18You returned to your father, who was then living in St Arnaud, and again you regularly lived on the streets to escape being beaten.  You started using ice, speed, and heroin.  At this time you met on the streets two young teenagers who attacked you by spraying you with paint thinner and lighting it.  Your cousin managed to get you on to the ground and put out the flames.  He then put a mattress in the back of a ute and drove you to hospital, as no ambulance had responded to the 000 call.  You suffered extensive burns to your chest, abdomen, arms, and the front of your thighs, and you spent about two months in hospital and one month in a rehabilitation unit, with complications from a golden staph infection.  Your biological mother visited you there once.

19After being discharged from hospital you spent a few months living with your stepmother's parents and eventually moved to Bendigo, where you have lived ever since.  You still bear extensive scars from the burns and have to apply moisturiser each day.  You had been attending school until this time as a teenager but you had struggled and had been provided with an integration aide.  You had been suspended and expelled from school for bad behaviour more than once.  After being in hospital you no longer attended school, but in 2015 you completed the VCAL course in prison.

20You met Ms Davey in about 2005 and your four children were born, who are now aged 12, ten, eight and three.  The relationship was not a stable one and has now ended.  When first remanded in custody you bought prepaid envelopes and writing pads and sent them to Ms Davey so the children could write to you, and you received eight letters.  After a time, her telephone was disconnected and you lost contact, and then the children were removed from her care. 

21The children are now living with their grandparents, following intervention by the Department of Health and Human Services, and after a period of lost contact DHHS workers began bringing them to visit you, resulting in four or five visits this year.  Until those visits began, you had not seen the children for some two years or more, since Christmas 2015.  You have had no other visitors in prison.

22Dr Best's report is dated 4 April 2017 and was prepared for the plea in relation to the charge of armed robbery of which you were convicted in March 2017.  While it does not deal with the current matters, it remains relevant to my sentencing task.  The report sets out your psychiatric history, which includes an admission to a psychiatric hospital in 2008 to treat psychotic symptoms, which have not reoccurred and were likely linked to drug-induced psychosis rather than the diagnosis of schizophrenia you reported to Dr Best.

23She considers that the antidepressant medication you are prescribed is likely to be taking care of any symptoms of depression and so your mental state is being adequately managed as far as medication is concerned.  She noted, however, that you have been diagnosed with post-traumatic stress disorder, the symptoms of which can be reactivated in times of distress, leading to a decline in your mental health.

24Dr Best considers that your childhood experiences have left you with attachment difficulties and with personality deficits related to those difficulties, and to deprivation and trauma.  She considered that a therapeutic ‘talking’ program would enable you to better understand your unconscious motivations.  The report also refers to your 16-year history of illicit drug use, including opioids, cannabis, amphetamines and ice, as well as alcohol.  There had been no significant periods of abstinence except in prison, and Dr Best described you then as being "pre-contemplative about giving up drugs and alcohol".

25Dr Best considered that the Verdins[1] principles applied in relation to your likely experience of prison because of your impaired mental functioning resulting from your fragile personality difficulties, trauma history, and post-traumatic stress disorder.  Prison could weigh more heavily upon you and could lead to a deterioration in your mental health over time, risks that are less likely to apply to prisoners who do not have impaired mental functioning in this way, and that was her opinion.

[1] Verdins v R [2007] VSCA 102

26That is a matter to be taken into account in moderating slightly the weight to be placed on general deterrence, as is usual in cases where the Verdins principles apply.  General deterrence remains the most important sentencing principle and specific deterrence is also significant in this case.  These are all serious offences, with maximum penalties of ten years' imprisonment applying to each.  The burglary of people's homes and businesses, the theft of their personal and business-related property, of cars and other items, and the damage caused to that property is only part of the havoc that you and the co-offenders wreaked upon their lives.

27As was explained by Mr Doherty and Mr Lang in their victim impact statements, the effects went much further.  For Mr Doherty, the crimes cost him $20,000 and insurance did not even cover half of this sum.  His premium increased and he had to spend money to improve the security of the premises.  He was concerned that the reduced profit caused by remedying the situation might jeopardise the jobs of his staff.  He said it took a long time to get over it and he will never forget it.

28Mr Lang also said that he is still affected by the crime.  His immediate concern was as to the identity of the offender and the reason for the offending, as well as the need for greater security in his home where he had previously felt safe and secure.  As a self-employed person he lost money because of the time spent dealing with the police and insurance agents and in replacing unrecovered items and installing security equipment.  He felt a sense of embarrassment when people asked him why the crime had happened to him.

29Described in this way, the nature of the offending and the consequences for its victims signifies its gravity.  Your counsel, Ms Clark, submitted that in weighing the gravity of the offending in this case I should take into account that all the charges could have been heard in the Magistrates' Court, as were the charges against the two co-offenders.  Other charges laid against you which have now been discontinued were linked to these charges and so brought you within the jurisdiction of the County Court, and I take that into account.

30This leads me to consider further the mitigating factor of parity.  The other offenders, McElroy and Barden, were sentenced in the Magistrates' Court on separate occasions after pleading guilty, with the charges arising from this offending heard together with numerous other charges as part of a consolidation.  McElroy was sentenced in Sunshine Magistrates' Court on 3 May 2016 to an aggregate sentence of 12 months' imprisonment.  Barden was sentenced on 31 May 2017 in the Melbourne Magistrates' Court to an aggregate sentence of 18 months' imprisonment.

31It is not possible to gauge what proportion of these sentences was attributable to the offences they committed with you on the two relevant occasions.  Each of their sentences can only be considered as a global figure within which fall sentences for the relevant crimes.

32It has been established that, in relation to your current sentences for armed robbery, your earliest release date if you are found eligible for parole is 6 May 2020.  I must consider the principle of totality in determining an appropriate sentence, bearing in mind that you still have approximately 20 months to serve at least.  These offences occurred within the same week as the armed robbery.  Overall, the principle of totality should prevent the sentence being a crushing one, bearing in mind the time already spent in custody for the armed robbery charge and the expiration of that sentence being almost two years away.

33Arguably, the principle of totality also calls for considerable concurrency as between the charges for which I am sentencing you.  Your counsel submitted and the prosecution conceded the point that the risk of double punishment for burglary and the associated theft charges on each occasion must be avoided by means of ordering concurrency rather than cumulation.  That issue is discussed in the decision of Jennings v Morgan[2] to which I was referred.

[2] 2/6/1998 VSC at 16 – 17

34That is not to say that there should not be any cumulation as between the two separate burglaries, as Ms Clark indeed submitted that for each incident there should be total concurrence for the theft charges.  My final conclusion was to agree with that submission.  

35Overall, the principle of totality also applies to the question of what proportion of the sentence I shall impose should be served cumulatively upon the sentence you are already serving.  Your counsel submitted that there should be substantial, if not total concurrency, between them.  The prosecution's submission was that some degree of cumulation is required.  I agree, in view of the seriousness of each separate incident and the planning involved to which I have already referred.

36The final mitigating factor is that of your prospects for rehabilitation.  Your counsel conceded that those prospects were guarded, but that being said they appear to have improved since you were first remanded.  You appear to have engaged well with Dr Best and she did not attribute your personality deficits as being caused by an antisocial attitude as such, but as being related to your early childhood experiences with the attachment difficulties, deprivation and trauma to which I have already referred.

37Your children are now able to visit you in prison and that appears to be a significant advance.  You have undertaken some self-help courses.  Your medication is appropriate and your mental health is stable, although fragile.  On the other hand, you may not be entirely ready to remain abstinent from drug and alcohol use.  You committed these offences not long after your release from prison without the structure of parole.  You were homeless and fell back into the trap of drug use and offending.  Clearly, you need quite a long monitored period when you are released next time to reduce the risk of recidivism and maximise your chances of rehabilitation.

38Mr Wallace, I sentence you as follows.  Would you stand now please.  I sentence you to the following terms of imprisonment.  I have a summary here for counsel to follow.

For Charge 1, burglary, three years. 

For Charge 2, theft, 18 months. 

For each of Charges 3, 4, and 5, all charges of theft, two years. 

For Charge 6, criminal damage, 18 months. 

For Charge 7, burglary, three years. 

For Charge 8, theft, two years.  

For Charge 9, theft, two years. 

For each of Charges 10 and 11, both charges of theft, 18 months. 

The sentence for Charge 1 is the base sentence for the purposes of cumulation.  I order that one year of the sentence for Charge 7 be served in cumulation upon the base sentence and this results in a total effective sentence of four years.  It will be served concurrently with your current sentence. 

I fix a new non-parole period of two years and eight months which you must serve before being eligible for parole, meaning that you would serve a further ten months approximately beyond your expected release date of 6 May 2020.

39The prosecution has sought a disposal order for certain items and through your counsel you have consented to that and I make that order. 

40Mr Boyd-Wilson, in relation to each of the charges of car theft, I think there should be an order in respect of any driving licence that Mr Wallace holds.

41MR BOYD-WILSON: Yes, Your Honour. I think it's under s.89 of the Sentencing Act.

42HER HONOUR:  That is right, yes.  Ms Clark, that was not raised during the plea hearing yesterday.

43MS CLARK:  No.

44HER HONOUR:  But I will be making an order.

45MS CLARK:  If Your Honour pleases.

46HER HONOUR:  In relation to each of the charges of theft of a car, there will be an order cancelling any driving licence or permit you might hold and you will be disqualified from obtaining another permit for five years.  Are there any matters that I have omitted or neglected?

47MR BOYD-WILSON:  May I just speak to my friend for one moment?

48HER HONOUR:  Certainly.

49MS CLARK: Your Honour has applied s.14 of the Sentencing Act by fixing now a new single non-parole period of two years and eight months.

50HER HONOUR:  Yes.

51MS CLARK:   Which takes effect from the date of the sentence that Your Honour has imposed today?

52HER HONOUR:  That is right, yes.

53MS CLARK:  That is as I understand it.

54HER HONOUR:  No problem with that?

55MR BOYD-WILSON:  No, Your Honour.

56HER HONOUR:  All right.  Mr Wallace can be taken now, thank you, officer.  Did you want to speak to Ms Clark?

57OFFENDER:  Yes.

58MS CLARK:  I will come down and speak to Mr Wallace.

59HER HONOUR:  All right, thank you, Ms Clark.

60HER HONOUR:  Adjourn the court, please.

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