Director of Public Prosecutions v Wallis

[2020] VCC 399

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02497

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON WALLIS

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 April 2020
CASE MAY BE CITED AS:	DPP v Wallis
MEDIUM NEUTRAL CITATION:	[2020] VCC 399

REASONS FOR SENTENCE
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Subject:  Criminal Law
Catchwords:                  Firearms – indictable offence whilst on bail – youthful offender
Legislation Cited:           Sentencing Act 1991
Cases Cited:
Sentence:  2 years and 8 months with non-parole period of 20 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland	Office of Public Prosecutions
For the Accused	Ms J. McGarvie	Dribbin and Brown Lawyers

HIS HONOUR: 

1Aaron Wallis, on 3 April you pleaded guilty to an indictment containing five charges, being burglary, Charge 1, theft of a firearm, Charge 2, prohibited person carry a firearm, Charge 3, theft Charges 4 and 5.  As well, you pleaded guilty to two related summary offences being Charge 11, commit an indictable offence whilst on bail and Charge 13, contravene a conduct provision of your bail, namely a curfew.  The offending was committed whilst you were on bail and this is an aggravating feature of your offending.  You admitted your criminal record which although not extensive contains prior convictions for burglary, theft, handling stolen goods and bail offences of fail to answer bail, commit an indictable offence whilst on bail and contravene a conduct provision of bail. 

2Tendered as Exhibit A and read aloud in court was the summary of prosecution opening.  In brief terms, you and your co-offender left Geelong late on 25 June 2019 to travel to the Horsham area to steal firearms from Mr English whose farm is located in Drung.  You intended to sell the firearms.  You had previously had a relationship with Mr English's daughter, Milly, and knew where Mr English stored his firearms.

3At about 2.15 am on 26 June you and your co-offender went to a shed on the English farm where Mr English kept his firearms properly stored.  You cut the padlock to the cabinet and stole his firearms being a .308 calibre rifle, a .22 calibre rifle, a 12-gauge shotgun, a 410-gauge shotgun and an air rifle, together with assorted ammunition.  You were a prohibited person at the time because you were subject to a final, personal safety intervention order. (Charges 1, 2 and 3.)  You and your co-offender left the English property and travelled to the Sudholz's farm in Rupanyup.  There you stole Mr Sudholz's firefighting trailer which consisted of a trailer, a 600-litre water tank and pump.  In addition you stole a diesel fuel tank to one of Mr Sudholz's grain augers, (Charge 4.) You and your co-offender also rummaged through Mr Sudult's Landcruiser and stole a jack and a set of jumper leads (Charge 5). 

4You drove towards Deep Lead but ran out of petrol and your co-offender pulled his ute with Mr Sudholz's trailer attached into the Canadian bushland reserve.  At about 11 am Kelly Harris saw the pair of you walking along a neighbour's fence line.  Ms Harris contacted the police and shortly thereafter she left her property and by chance found your utility at the Canadian reserve rest area.  Ms Harris again contacted the police.

5Police attended the Canadian rest stop but left that area to make further enquiries.  In the interim you and your co-offender returned to the utility.  Your co-offender put three of the five firearms being the 410 shotgun, the .22 calibre rifle and an air rifle into a bag and hid them about 40 metres or so from the utility.  (See your record of interview, Question and Answers 126 to 128.)  You walked to Stawell and contacted a friend who lived there who put you up for the night and the next day drove you and your co-offender to Geelong.

6On 12 July 2019 you were arrested at the Geelong University Hospital and taken to Geelong police station where you were interviewed under caution.  You made full and frank admissions to the police.  You told the police the name of your co-offender, you gave the police a description of him, told them where the firearms were sold and in respect to the 410 shotgun that it had been sold to a person called Nossie in Warrnambool and that you had seen a photograph of it after it had been cut down.  At the time of your offending you were on bail.  You were to reside with your father and were subject to a curfew between 10 pm and 6 pm (related Summary Offences 11 and 13).

7After interview you were charged and remanded in custody on 12 July 2019.  Your matter resolved at an early stage at the second committal mention on
11 December 2019.  The maximum penalty for burglary, theft and prohibited person carrying a firearm is 10 years' imprisonment while the maximum penalty for theft of a firearm is 15 years' imprisonment.  In respect to each of the summary offences, the maximum penalty is three months' imprisonment or 30 penalty units.

8Tendered as Exhibit B was the victim impact statement of Mr English.  It deserves to be incorporated into these reasons.  Mr English deposed:

'Both Sheridan and myself felt betrayed more than anything else.  One of the guns that Aaron and friend took was given to me when I was a child, handed down from my grandfather.  You could say it was a family heirloom.  I know it wasn't worth much money-wise but it held great value to me'.

9In respect to their reaction to the crime, he deposes:

'At first we were angry and unsettled.  When we found out it was someone we knew and trusted we felt very frustrated and confused'.

10He further states:

'We live out in the country, never locked our doors and we knew most people that came in.  Now, we lock everything down, i.e. sheds, house, we have a security system put in and we also have cameras'.

By your actions effectively you have changed the way Mr and Mrs English live.

11Mr Wallis, you are 25 years old and were 24 at the time of your offending.  I was informed by Ms McGarvie of counsel, who appeared on your behalf, that you grew up in Horsham in a loving and supportive family.  You have two older sisters, one of whom Rachel Wallis wrote a reference for you that became Exhibit 1 on the plea and gave evidence on your behalf.  Your mother and father are separated and your father lives in Geelong while your mother still resides in Horsham.

12You completed year 10 and after leaving school commenced a building apprenticeship in Horsham in 2012.  You did not complete your indenture, leaving your employer after three years in 2014.  In 2014 you were living with your parents when their marriage broke down.  Your sister Rachel swore that this was a hard time for you and that after your parents sold the family home you went to live with friends and started to use methylamphetamine.  It is about this time that you start to offend. During this time your sister Rachel was sharing a house in Horsham.  You became homeless for a period of time and as there was no room in the house for you, there were times when you slept in a swag in your sister's backyard.   

13In or around 2015 you met Milly English and you had a two-year relationship with her.  Your sister Rachel swore that the English family treated you as a member of their own family.  After a period of time you and Milly moved in together in Horsham and you had a good job working for Glencore a grain company in 2006 and 2017 where you worked long hours. During this time you were abstinent from methylamphetamine. 

14Unfortunately, your relationship with Ms English broke down and you remained in the house in Horsham.  You commenced to abuse methylamphetamine and lost your job with Glencore and you could no longer afford the rent on this house.  It is unclear how you lived in 2018 and 2019 until you moved to Geelong from Horsham in May 2019 and lived with your father.  After your offending and prior to your remand you spent some time in Warrnambool where you suffered a tooth abscess which caused you to become so ill that you were transferred to hospital in Geelong suffering from septicaemia and you spent at least four days in hospital on intravenous antibiotics. It was at the end of this period that you were arrested. 

15While on remand you were initially imprisoned at Ravenhall, however, you were stood over and assaulted by a group of prisoners and eventually transferred to Hopkins Correctional Centre in Ararat.  This transfer has made it difficult for your family members to visit you, although your father, until recent times has visited you on a fortnightly basis and you are in daily telephone contact with your family members.  In the present circumstances, members of your family will not be able to visit you because of the Coronavirus. Ultimately, when you are released from prison, you will return to live with your father in Geelong. 

16While in prison on remand in October 2019 you pleaded guilty to, amongst other offences, to one charge of burglary and two of theft and you were sentenced on appeal to two months' imprisonment which sentence you have served.  I must take this into account when applying the principle of totality.  I do so because the offences for which you were sentenced predate the instant offending.  (See the chronology to Ms McGarvie's outline of sentence.)

17You pleaded guilty at an early stage and are entitled to the benefits that flow to you from such a plea, being that it is some evidence of your remorse and it has utilitarian value.  You are still a youthful offender and I must look to your rehabilitation.  You made full and frank admissions to the police and identified not only your co-offender but the purchaser of one of the stolen firearms.  However, while on bail and subject to a curfew that you breached, together with your co-offender, you travelled to the home of a family that had treated you as one of their own. At night and in company you stole firearms in order to get money for them.  You intended that the stolen firearms would enter into the black market.  As proof of the vice to which the offence is directed, you saw a photographs of the 410 shotgun that you stole, cut down.  There is put one purpose for such a procedure and that is for the use of the shortened firearm in a crime of violence.  You committed the thefts of the firearms and carried them whilst a prohibited person.  Thereafter you stole a firefighter trailer and other items from Mr Sudholz, a person who you appear to be unknown to.

18Your offending, in my opinion, is a serious example of offending of its kind.  You are an appropriate vehicle for the application of the sentencing principles of general and specific deterrence.  Further, you must be justly punished and your conduct publicly denounced. 

19By these sentences, I must denounce your conduct.  I must punish you and deter you and others from committing crimes of a same or similar kind.  I must look to your rehabilitation, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedence endeavouring to (indistinct) sentences which reflect and promote the purposes of sentencing in a manner appropriate to you, I sentence you as follows.

20On Charge 1, six months' imprisonment.  On Charge 2, two years' imprisonment.  On Charge 3, one year's imprisonment.  On Charge 4, one year's imprisonment.  On Charge 5, on month's imprisonment.  In respect to the related summary offences, I sentence you to one month's imprisonment on each charge.  In respect to the offences on the indictment, I order that three months of the sentence imposed on Charge 3 and Charge 4, together with two months of the sentence imposed on Charge 1 be served cumulatively upon each other and upon the sentence imposed on Charge 2.  This results in a total effective sentence of two years and eight months' imprisonment and I fix the period of 20 months' imprisonment as the period that you must serve before you will be eligible for parole.

21I declare that you have spent 210 days by way of presentence detention, not including today. Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to five years' imprisonment with a minimum term of three years' imprisonment.

22There are some ancillary orders.  There is a disposal order sought by the Crown and I have signed that and hand that down.

23MS McGARVIE:  As Your Honour pleases.

24HIS HONOUR:  Is there anything arising out of the sentence?

25MR BUCKLAND:  I do not believe so, Your Honour.

26MS McGARVIE:  No, Your Honour.

27HIS HONOUR:  Thank you.  Then break the link with the prisoner please.

28TIPSTAFF:  Yes, Your Honour.

29HIS HONOUR:  Ten-thirty, tomorrow morning.

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