Director of Public Prosecutions v Walley

[2019] VCC 376

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR‑18‑01850

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAY BRIAN WALLEY

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Shepparton
DATE OF HEARING:	20 November 2018, 30 January 2019
DATE OF SENTENCE:	1 February 2019
CASE MAY BE CITED AS:	DPP v Walley
MEDIUM NEUTRAL CITATION:	[2019] VCC 376

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Guilty plea – theft – theft of a firearm – being a prohibited person in possession of a firearm – being armed with a firearm with criminal intent – significant and relevant criminal history – serious drug addiction
Legislation Cited: Crimes Act 1958 (Vic), Firearms Act 1996 (Vic), Summary Offences Act 1996 (Vic), Bail Act 1977 (Vic), Family Violence Protection Act 2008 (Vic), Road Safety Act 1986 (Vic)
Sentence: Total effective sentence of 2 years imprisonment with 14 month non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D O'Doherty	OPP
For the Accused	Mr L Slater	Slater & King

HIS HONOUR

Introduction

1. Jay Brian Walley, you have pleaded guilty to the following charges:

   · One charge of theft contrary to s 74(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment;

   · One charge of theft of a firearm contrary to s 74AA(1) of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment;

   · One charge of being a prohibited person in possession of a firearm contrary to s 5(1) of the Firearms Act 1996, which carries a maximum penalty of 10 years imprisonment; and

   · One charge of being armed with a firearm with criminal intent contrary to s 31B of the Crimes Act 1958, which carries a maximum penalty of 5 years imprisonment.

2. You have also pleaded guilty to five related summary charges:

   · Charges 4 and 5 - assault with a weapon contrary to s 24(2) of the Summary Offences Act 1966, which carries a maximum penalty of 2 years imprisonment;

   · Charge 6 - committing an offence whilst on bail contrary to s 30B of the Bail Act 1977 which carries a maximum penalty of 3 months imprisonment or 30 penalty units;

   · Charge 7 - contravening a family violence interim intervention order contrary to s 123(2) of the Family Violence Protection Act 2008 which carries a maximum penalty of 2 years imprisonment or 240 penalty units; and

   · Charge 10 - driving a motor vehicle without a licence contrary to s 18(1)(a) of the Road Safety Act 1986 which carries a maximum penalty of 3 months imprisonment or 25 penalty units.

3. You have also admitted your prior criminal record.

Circumstances of the offending

1. A prosecution summary was tendered on the plea and may be summarised as follows:

2. At approximately 12.30pm on 2 April 2018, Albino Gianarelli returned to his house in Seymour having just left his hobby farm. He was in possession of an unregistered Baikal IJ 17 single barrel 12 gauge shot gun, having just used it to destroy an injured cow. Mr Gianarelli was 84 years of age at the time.

3. Mr Gianarelli parked his white Toyota Hi-Lux Utility, registration IKF 5WY, in the driveway of the property and placed a shot gun on the rear seat. He also placed a bandolier of shot gun ammunition behind the rear seat. Mr Gianarelli left the vehicle unlocked with the keys in the ignition.

4. At approximately 2pm, you were riding past Mr Gianarelli's house on a scooter and observed the vehicle parked in the driveway. You approached the vehicle and observed the keys in the ignition.            You got into the vehicle containing the firearm and drove away. 

5. Mr Gianarelli noticed soon after that his vehicle was missing and the theft was reported to the Seymour Police Station.

6. Meanwhile, you stopped the vehicle at an unknown location and searched through its contents. You located the Baikal shot gun in the rear of the vehicle however did not locate the ammunition. You placed the shot gun back in the vehicle.

7. You drove the stolen vehicle to Elicia Sparrow’s property and parked it at the rear of the address, breaching an interim family violence intervention order that was in place at the time. The order was taken out by Elicia Sparrow and served on you on 5 March 2018.

8. At approximately 2.30pm, you, in company with Elicia Sparrow, drove to the victims’ house. Travis and Christine Grant were out the front of the premises. Also present was Robert Grant, Kirsty Grant and Richard Grant.

9. Robert Grant was aged 69 years at the time of the incident. He was the father of four children, including Travis Grant and grandfather to three. He was retired at the time of the incident. He knew you personally as his son, Travis Grant, resided with you for a two month period.

10. Travis Grant was 18 years old at the time of the incident. He knew you personally as you had lived together and had lived in the same street for a number of years. At the time of the incident, Travis was involved in a dispute with you over unpaid rent.

11. Travis and Christine Grant observed you in company with Ms Sparrow driving the stolen vehicle up towards Travis. You stopped the vehicle on the nature strip outside the premises.

12. Travis called out that you were at the premises and Robert Grant came out to the front of the property.

13. You exited the vehicle and retrieved the shot gun. You lent on the vehicle door and pointed the gun at Travis. Travis was in extreme fear and ran inside and notified his sister Kirsty Grant, who immediately contacted 000.

14. Robert Grant confronted you and you pointed the shot gun at him. Robert Grant said, ‘Come on then, shoot me.’ He walked towards you. As he approached you, you returned to the vehicle and placed the shot gun in the passenger foot well beside Ms Sparrow.

15. You reversed the vehicle, striking a give way sign and drove away. You stopped outside Ms Sparrow’s house where she exited the vehicle and went inside, again in breach of the interim family violence intervention order. You drove away, turning left at the end of the street.  

16. A few minutes later, you returned to Mr Sparrow’s house and parked the vehicle in the backyard, again breaching the intervention order.

17. At approximately 3.20pm, Senior Constable Trent Shortt and Constable Jason Crossing arrived at the victims’ house.

18. At approximately the same time, you jumped the fence into the next door property with the stolen shot gun. You hid the shot gun in long grass at the rear of the property. You then entered the address after requesting Kirsty Kadow, a resident of the property, to let you in.

19. Soon after, Senior Constable Shortt and Constable Crossing, in company with further police, attended Ms Sparrow’s house to arrest you. The address was surrounded and attempts were made to contact you and Ms Sparrow.  No one responded to the phone calls.

20. The stolen vehicle was observed in the rear yard of Ms Sparrow’s property. 

21. The police entered the next door property. You were located inside the house and arrested by Senior Constable Shortt.

22. You were asked where the shot gun was. You stated it was in the long grass at the rear of the property. Constable Crossing located the shot gun where you had stated it was.

23. You were conveyed to the Seymour Police Station where you were interviewed by Senior Constable Williams and Sergeant Derrett.

24. You cooperated with the police and made full admissions during that interview.

Objective seriousness of the offending

1. Generally speaking firearms offences are serious offences. So much is recognised by the maximum penalties imposed by Parliament where in relation to charge two theft of a firearm, the maximum penalty is 15 years imprisonment, and in relation to charge three, being a prohibited person in possession of a firearm, the maximum penalty is 10 years imprisonment. When consideration is given to the circumstances in which these offences arose, the objective facts demonstrate that your offending on this particular day was serious.

2. At the time of the commission of these offences you were in a drug induced state. As you stated to your psychologist in your own words, you were ‘not in the right mind’. Your counsel submitted that you reported to him significant ice use prior to the offending and that you were in a particularly low mood. Further, you were having a dispute with Travis Grant and you were angry. Therefore, while you were in a dangerous and vulnerable state, you came across the vehicle and the weapon and proceeded to commit the offences described.

3. Initially, when you stole the car, you were unaware of the shot gun in the rear.  However once you discovered the shot gun you then made the plan to approach the Grants and threatened them in the way that you did. However before that you picked up your partner Ms Sparrow in breach of the intervention order that was in place at the time. Once you were at the property, Travis Grant saw you out the front. You immediately exited the vehicle and retrieved the shot gun pointing it at Travis. Understandably, he was in extreme fear. Robert Grant then confronted you and you pointed the shot gun at him.  Mr Grant had the courage to confront you and ultimately you returned to the vehicle and drove off.

4. Clearly the weapon was operative as it had just been used by Mr Gianarelli. Thankfully you did not find the shot gun ammunition behind the rear seat of the car.

5. The whole incident would have been a frightening experience not only for Travis and Robert Grant but as noted in the prosecution summary, there were other members of the family present when you confronted the men at the front of their property.

6. These offences were committed whilst you were on bail in relation to other matters and while you were on a community correction order which in my view further aggravates the seriousness of your offending.

Personal circumstances

1. You are 27 years of age and the youngest of three children. Your parents separated when you were about eight months of age. You have two older sisters but you have no contact with them. You have limited contact with your father.

2. You report a fragmented childhood where you were raised primarily by your mother in Kyabram in your early years and spent a few years with your father until the age of 14 when you returned to your mother's care. You left home at about age 16 and at that age you state that you were using drugs heavily and your life was extremely disrupted.  You report that you were close to your mother and since her death in 2014 you have had little family connection or support.

3. You struggled at school and left after year eight. You were exposed to drug use at an early age. You state that you smoked cannabis at the age of eight and that you began to use speed at the age of 15 and ice at the age of 18. You began using heroin at age 22 and at that time you were also using ice heavily.

4. You have been in a long-term relationship with Elicia Sparrow and you have two children aged six and four who are not in your care or in Ms Sparrow's care. You also had twin sons who died at 26 weeks gestation in 2017. This had a devastating effect on you and your partner and exacerbated an already serious drug addiction.

5. A report was prepared by clinical psychologist Carla Lechner and tendered on the plea.  Ms Lechner conducted a number of psychometric tests where your performance indicated that your verbal intelligence is extremely low and can be considered in the mildly intellectually disabled range. Your verbal comprehension test indicates that approximately 99 per cent of the adult population perform better than you. In summary, Ms Lechner is of the view that you have genuine cognitive limitations in respect of your verbal skills which have been further undermined by chronic and significant drug use.

6. Ms Lechner reports that you fulfil the criteria of a diagnosis of Major Depressive Disorder and you have recently commenced on antidepressant medication. 

7. A further report was prepared by neuropsychologist Leanne Kennedy. Ms Kennedy also conducted a number of tests where she found that you scored in the Extremely Low to Borderline Impaired range across many of the cognitive tasks.

8. Ms Kennedy also acknowledges your depression and notes that while the deaths of the twins and your mother were not the cause of your substance use or offending, it is likely that those matters would increase stress and depression, further exacerbated by the complications associated with your relationship with your partner.

9. Both reports provide detailed analysis of the testing conducted and further details as to your background circumstances. I have taken the content of those reports into account. 

10. A conclusion which is common to both reports is that your substance use is a large factor in your offending behaviour. It was noted by Ms Kennedy that significant substance use and abuse has been part of your life for so long that even after a period of abstinence you do not have the skills or social supports to sustain you in the community. Your drug use has restricted you from being employed for several years and you have no qualifications and limited education. It is clear that your drug use from a very young age has very much impaired your ability to learn and progress and to grow into adult hood. That circumstance combined with some genuine cognitive impairments, mean that your rehabilitation prospects depend on you making significant life changing choices and engaging with community supports.

Sentencing considerations

1. When arrested by the police you cooperated fully and ultimately made full admissions when interviewed. You pleaded guilty at the committal mention and in all the circumstances I accept that your plea of guilty was entered at the earliest opportunity.  As such it has avoided the need for a trial and has facilitated the course of justice.  That said, I accept that you have demonstrated some remorse for your behaviour.

2. As to genuine remorse, you have acknowledged that your actions on this occasion were an overreaction to a disagreement you had with the victim.  However in my view, because of your very complicated and long-term drug addiction and cognitive deficits you have limited insight into why you reacted the way you did when the opportunity presented itself in relation to the theft and the use of the firearm.

3. As to your prospects of rehabilitation, as already noted, they can only be approached with caution. You have a significant criminal history which is largely connected with your long-term and serious drug addiction. It is only when you take positive and sustained steps towards ridding yourself of drugs that you will be able to address some of the core issues relating to your cognitive impairments.

4. In relation to offences of this nature involving firearms, general deterrence is a primary sentencing consideration. In your case, specific deterrence must also weigh heavily in the sentencing equation as you have a significant and relevant prior criminal history. Further, the choices you made on the day of the offences were made while you were affected by ice which in my view is very disturbing and therefore, protection of the community is a relevant sentencing consideration.

5. I take into account your genuine cognitive limitations. While in the context of your offending it is difficult to separate those limitations from your significant drug addiction, in my view the conclusions of Ms Kennedy that you do not have the reasoning ability to cope with stressful situations as a result of your cognitive deficits may enliven the Verdins principles to some degree. However, as you also acknowledged, you were not in a right state of mind due to your drug use at the time of the offending. What the psychological reports do not do is draw any causative connection between your cognitive deficits and the offending.

6. I am of the view however that now that you are not using drugs while in custody, your cognitive deficiencies would make prison more difficult for you than for others not suffering from your difficulties.

7. It is only if you remain drug free upon your release from custody that you will able to engage with services to assist you in your reintegration into the community.  While a community correction order may offer you the type of support that you need to continue your rehabilitation, in my view in light of the seriousness of the offending the only appropriate sentence is one of a term of imprisonment together with a non-parole period.

Sentence

1. Mr Walley please stand. 

2. Jay Brian Walley, in relation to charge 1 on the indictment, theft of a motor vehicle, you are convicted and sentenced to 10 months imprisonment. 

3. In relation to charge 2, theft of the firearm, you are convicted and sentenced to 14 months imprisonment. 

4. In relation to charge 3, prohibited person possess firearm, you are convicted and sentenced to 12 months imprisonment. 

5. In relation to charge 4, being armed with a firearm with criminal intent, you are convicted and sentenced to 6 months imprisonment. 

6. In relation to summary charges 4 and 5, assault with a weapon, you are convicted and sentenced to 6 months imprisonment on each charge. 

7. In relation to summary charge 6, commit an indictable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment. 

8. In relation to summary charge 7, contravene family violence interim intervention order, you are convicted and sentenced to 2 months imprisonment. 

9. In relation to summary charge 10, drive a motor vehicle without a licence, you are convicted and fined $500. 

10. Charge 2 will be the base sentence. I direct that 3 months of charge 1, 3 months of charge 3 and 2 months on each of summary charges 4 and 5 be cumulative on each other and on charge 2. That makes for a total effective sentence of 2 years imprisonment.

11. I direct that you serve a period of 14 months imprisonment before becoming eligible for parole. 

12. Pursuant to s 18 of the Sentencing Act 1991, I declare that 305 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

13. Pursuant to s 89(4) of the Sentencing Act 1991, you will be disqualified from obtaining a licence for a period of 12 months from today.

14. Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 2 years and 6 months imprisonment with a non-parole period of 18 months imprisonment.

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