Director of Public Prosecutions v Wallis, Steven Michael and Alderson, Troy William
[2013] VCC 419
•11 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-02380 (Wallis)
CR-12-01792 (Wallis)
CR-12-01793 (Alderson)
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN MICHAEL WALLIS and TROY WILLIAM ALDERSON |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February and 8 April 2013 | |
DATE OF SENTENCE: | 11 April 2013 | |
CASE MAY BE CITED AS: | DPP v Wallis, Steven Michael & Alderson, Troy William | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 419 | |
REASONS FOR SENTENCE
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Subject: Aggravated Burglary and other offences
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | OPP |
| For Accused Wallis For Accused Alderson | Ms M. O’Brien Ms M. Mykotowycz | Mathew White Alan McMonnies |
HIS HONOUR:
1 Steven Michael Wallis, you have pleaded guilty to one charge of aggravated burglary, one charge of causing injury intentionally and one charge of kidnapping arising out of an incident on 5 February 2012. On a separate indictment you have also pleaded guilty to a charge of theft.
2 Troy William Alderson, you have pleaded guilty to one charge of aggravated burglary and one charge of causing injury intentionally arising out of the same incident.
3 Mr Pickering, the prosecutor opened the circumstances of the offending against each of you by reading from a ‘Prosecution Opening’.
4 On 28 September 2012 I sentenced Michael Andrew Megne, the co-offender in the same incident. He also pleaded guilty to aggravated burglary, causing injury intentionally and kidnapping.
5 The offending, in short, concerns both of you as well as Mr Megne and another offender attending the home of the victim immediately after a phone call during which threats were made. Both of you have perceived the threats to be directed at your families. This seems to be the primary motivation for your attendance at the premises, the forced entry by kicking in the door and assault, by kicking and punching, of a male occupant who was then forced to leave at knife point, get into the boot of Mr Megne’s car and driven for about 15 minutes to a location before being told to run away, which he did. This male victim was repeatedly asked about another male’s whereabouts. This other male had been a participant in the telephone conversation but had left the premises before your arrival. A female friend of the victim was also present during the assault and tried to prevent it.
6 Although initially accepted as accurate the ‘Prosecution Opening’ was subsequently amended to delete an allegation that you Mr Walllis, threw a child’s ride-in-car at the victim as well as an allegation that it was you, Mr Wallis, who used the knife to force the victim to leave the premises as part of the kidnapping charge.
7 At the hearing of Mr Megne's plea, a number of mitigating circumstances were relied upon by his counsel. For example, he was recruited because he did not have a licence; he was not a planner or instigator; he had a low IQ and was easily led; he had a background of homelessness and dependency on others for basic needs; he was otherwise of good character despite a remarkably adverse upbringing and very limited opportunities; he encouraged others to release the victim from the car; I thought he would be particularly vulnerable in prison and subject to contaminating influences; I also thought he had excellent rehabilitation prospects provided he was not too long in prison and received supervised assistance on release; he had limited accessorial responsibility for the proposed assault and knew nothing about the knife. I also found he did not enter the premises and stayed in the car and was not aware of the intended kidnapping until confronted by others with the victim. I sentenced him to an aggregate sentence of 2 years and 9 months with a non-parole period of 12 months.
8 The primary victim suffered physical injuries as well as feeling extremely scared and fearing for his life.
9 Victim Impact Statements from the male victim and his female friend were tendered. They confirm that each has suffered understandable psychological consequences.
10 The charge of theft concerning you Mr Wallis relates to a police wallet containing a police badge and other items belonging to a police officer, who lost these items at a golf club in Cheltenham. The badge was found by the owner of premises occupied by you, Mr Wallis, after you moved out. You told police that you found the badge when playing golf at a club in Albert Park. The charge was alleged and accepted by you as a charge of theft by finding, you having failed to return it over about a 4 week period.
11 Each of you was interviewed and made admissions. The extent of the admissions was the summarised by the prosecutor.
12 Mr Wallis you were arrested on 16 February 2012. Mr Alderson, you were not arrested until 10 September 2012. You each pleaded guilty on the morning of a contested committal prior to witnesses being cross-examined.
13 You both spent time in custody. Mr Wallis, you were in custody until 1 March 2012, a total of 15 days pre-sentence detention. Mr Alderson, you were in custody until 9 October 2012, a total of 30 days pre-sentence detention.
14 Each of you has consented to me making Disposal Orders and Orders for the taking of Forensic Samples. I will make the Orders. My reasons for the latter will appear in the Orders. The samples will be mouth scrapings. You must understand that a police officer may use reasonable force to obtain the sample in each of your cases.
15 I do not intend to make any order under Section 28 Road Safety Act 1986.
16 Mr Megne was sentenced on agreed facts. It may be that his role was greater than accepted at the time of sentencing.
17 Mr Wallis, plea submissions concerning you began on 20 February 2013. They were interrupted because you wished to consider providing information and being of assistance to the prosecuting authorities.
18 As I followed you were concerned that because you were known to the victim your conduct may have received undue focus and others may have been able to escape detection or have their actions viewed too favourably.
19 As a consequence you made a statement to police on 14 March 2013. You confirmed its truthfulness and accuracy on oath before me and undertook to further assist the authorities by giving evidence against the fourth alleged co-offender whom you named. I was told that the offender is likely to be prosecuted.
20 As a result of a change in the alleged factual circumstances referred to earlier and your assistance the prosecution changed its sentencing range submissions concerning you.
21 Ultimately, I intend to impose a less severe sentence than I would otherwise have imposed because of your undertaking to assist, after sentencing, law enforcement authorities. This is to be noted in the court records as is the undertaking by you to give evidence consistent with your statement. If you fail to do this you will be at risk of being resentenced by the Court of Appeal.
22 Ms O’Brien appeared for you Mr Wallis.
23 She relied upon several matters in mitigation.
24 You must benefit from your relatively early pleas of guilty which have utilitarian benefits for the administration of justice saving time, expense and the need for witnesses to give evidence. Furthermore, I accept that these pleas were accompanied by remorse. Your partial admissions to police on interview are to your credit. You have demonstrated victim empathy and shame for your conduct. Your March 2013 statement to police and undertaking to give future cooperation is further evidence of remorse.
25 You have a criminal history but I accept that it is of limited significance to sentencing by me. You have no prior matters similar to the current offending.
26 Much evidence was tendered about your background and the difficult family situation in which you currently find yourself.
27 You are 30 years old. Your upbringing was difficult and troubled with your parents separating when you were about 6. Soon after you were effectively abandoned and were a Ward of State between the ages of 8 and 11. You have suffered abuse which I will not detail. Your sister was also a State Ward and she too has had a troubled life.
28 Mr Simon Robison, a foster parent who has known you for about 14 years, gave evidence on your behalf and a letter from him was also tendered. You were poorly educated and had learning difficulties. Mr Robison said you were a dedicated family man and he was impressed by your commitment to your partner, Tracy, and children. You have known your partner since high school. He confirmed your excellent work ethic and skills as a painter, carpenter and manual labourer. You have been with the one employer for the last ten years doing home maintenance. As he saw it your central problem was alcohol. He intends to remain supportive of you.
29 Mr Robison referred to and explained the circumstances of your appearance in court in 2000 on a charge of burglary of his house.
30 A character reference from Timothy Dunstone was also tendered.
31 The current offending occurred during a period of separation from Tracy. You have been a poly substance abuser and during the separation period you were drinking heavily.
32 You have three children and your eldest child, Brendan who is 9, is autistic, to put a simple label on his condition. An extensive report dated 4.6.2012, from Lisa Francis, a psychologist, concerning Brendan was tendered. Family hardship will follow from your incarceration. An argument that this hardship would be exceptional was foreshadowed but abandoned. I accept that time in prison will be difficult for you and in particular that the guilt of not being present to assist with Brendan and other family obligations will weigh heavily on you.
33 Your counsel argued that your time in prison will also be more burdensome because you may be in protection. This is difficult to forecast. The prosecution submitted that I should take this into account as a “possibility”. I am prepared to accept that your time in custody is likely to be made more difficult because of your cooperation and undertaking to give evidence.
34 You have a number of health problems. Some conditions have been identified and will ultimately require surgery, others require further investigation. For example, you suffer headaches, lung problems and poor liver function. You are to have hernia surgery. This operation was to occur in early March but it has now been decided to delay it.
35 A combination of your health concerns, the weight of family obligations not being able to be met and your status as a prisoner who has assisted authorities all combine to justify some reduction in sentence because imprisonment will weigh more heavily on you.
36 You were assessed by Carla Lechner, a well known clinical and forensic psychologist. She noted your disturbed early history characterised by abandonment, neglect and abuse. You showed emotional and behavioural problems during childhood and adolescence. She detailed your personal history. Intellectual testing showed that you are in the ‘mildly intellectually disabled/borderline’ range with approximately 98% of the adult population performing better than you. You presented with symptoms of Major Depression and whilst this was partly a reaction to your current circumstances, Ms Lechner thought your symptoms indicated a long-standing mood disorder previously undiagnosed. She noted that you had attempted suicide in your twenties, when intoxicated.
37 Ms Lechner considered that you were cognitively and emotionally immature. She thought you would be easily overwhelmed by social and emotional factors that undermine your judgment and reasoning skills. She thought you impulsive.
38 I accept Ms Lechner’s opinion. Her assessment of you helps explain your offending as well as providing a basis for treatment designed to assist your rehabilitation and avoid future offending. Of course I am also conscious of the role played in the offending by alcohol.
39 As noted a little while ago I would be prepared to make Ms Lechner’s report available to the prison authorities in the hope that some help can be provided in prison. You have consented to me doing this.
40 Your counsel acknowledged that you must be imprisoned. The prosecution submitted that a sentence of between 3½ and 4½ years with a non-parole period of between 2 and 3 years should be imposed. This was an amended range as a result of your cooperation with the authorities and undertaking to give evidence against your co-offender as well as the amended factual circumstances to which I referred earlier. The previous sentencing range submissions added a year to each figure. The earlier range was strongly resisted by your counsel when announced on 20 February. She also submitted that insufficient credit had been given for your cooperation and undertaking to give evidence and suggested that a 50% reduction in sentence should be given. The prosecution submitted that such a reduction was excessive. As noted in discussion a moment ago, I do not propose to quantify the reduction in sentence as a result of cooperation but rather reflect it as part of the intuitive synthesis; however it is a weighty factor.
41 Your counsel strongly argued for a significant disparity between the sentence and non-parole period.
42 You responded well to the CISP program when released on bail. You do need support and supervision including drug and alcohol counselling as well as counselling to deal with the abuse you suffered as a child and depression. Indeed, as Ms Lechner stated, you need long term therapy that can gradually peel back the layers that require psychological work. This treatment needs to allow for your cognitive limitations. You are unlikely to receive this help in prison and need an experienced therapist in the community. You may need anti-depressant medication and of course you must not abuse alcohol.
43 It is very unfortunate that I have not been able to sentence you and your co-offenders at the same time. The courts have commented often about the problems this creates. The problem may persist because the fourth offender may yet have to be sentenced. In circumstances where a co-offender may have received too lenient punishment the superior courts have at times ‘with a degree of unease’ moderated the sentence of the offender under scrutiny. As I noted earlier Mr Megne was sentenced on agreed facts. You dispute those facts and have made the significant step of assisting the authorities and undertaking to give evidence against your remaining co-offender. It may be that Mr Megne was treated too leniently but it is too late to resolve the factual dispute between your version of events and his. However, as noted in discussion earlier, in all the circumstances I consider Mr Megne’s possibly too lenient penalty warrants some additional moderation of your punishment to avoid a justifiable grievance.
44 Concerning the charge of theft, you do have relevant prior matters. In all the circumstances I propose to convict you and fine you $250.
45 You will also be convicted of the charges of aggravated burglary, causing injury intentionally and kidnapping and I will impose an aggregate sentence of 3 years and 3 months. I think it highly desirable to give you the chance of relatively early release on parole to encourage your rehabilitation. I fix 18 months as the period you must serve before being eligible for release on parole.
46 I declare that you have served 15 days pre-sentence detention and that this period is to be reckoned as time already served on the sentence I have imposed.
47 Had you not pleaded guilty your entire circumstances would have been different however focussing on what the sentence would have been but for the plea of guilty I expect I would have sentenced you to about 4 years imprisonment with a non-parole period of about 2½ years.
48 The offending for which I have sentenced you is very serious. Aggravated burglary and kidnapping usually result in much harsher penalties than you have received. Aggravated burglary in particular is an offence often thought to be insufficiently punished. A combination of circumstances has persuaded me that you should receive what, on the face of it, seems a particularly lenient total effective sentence.
49 Ms Mykytowycz appeared for you Mr Alderson.
50 She made submissions concerning your role in the offending emphasising that you had not met the victim or his friends prior to the offending. However, in the context of threats being made over the phone you perceived that your family was being threatened and so you became involved, attributing the threats to the ultimate primary victim. You then ‘lost it’ in response to the perceived threats.
51 You admitted to police at interview that you assisted in the breaking of the door to gain entry to the premises and directly assaulting the occupant. You admit to being 'heavily intoxicated' and having used drugs. You denied any knowledge of a knife. Your justification to police was that you would do anything for your family. You cannot recall how you got to or left the residence at which the offending occurred.
52 Your counsel relied upon your history of exposure to familial violence to explain why you might be more than unusually sensitive to threats of violence directed at your family members.
53 You must benefit from your pleas of guilty which came soon after your arrest. They have utilitarian benefits, saving time, expense and the need for witnesses to give evidence and I accept that they also reflect remorse. When interviewed soon after your arrest in September 2012 you initially made denials but after speaking to your mother you made admissions. You have written a letter of apology to the primary victim. This reflects your remorse and is relevant to your rehabilitation.
54 You are 35 years old. You have a criminal history but no prior history for offending similar to the current matters. You have however spent 2 months in custody in 2008 for reckless conduct endangering serious injury and associated offending arising out of the unlicensed driving of a car doing ‘burnouts’ whilst intoxicated. You also have prior convictions for assaulting police.
55 Your counsel detailed your personal background. Your father abandoned the family when you were about 1½ and you had little to do with him except for a period of 3 months when you were 15 and unsuccessfully moved in with him.
56 Your father remarried and had more children one of whom died of a heroin overdose in 2001. Blame was directed at you for this because you and your step brother worked together and you also used heroin.
57 You have an older sister and you have supported each other.
58 You had a difficult upbringing. Your family was poor. You were physically abused yourself and witnessed your mother being assaulted by partners. You were also exposed to drug cultivation and use. Your grandfather was physically abusive to your mother and her sister. Your mother physically ‘disciplined’ you. All this was relied upon to demonstrate the atmosphere of violence in which you were raised.
59 You had a limited education being expelled from one secondary school before completing year 9 at another with little education thereafter.
60 You have a good work history having completed a butcher’s apprenticeship, an occupation in which you have predominantly worked but you have also done other jobs. You are currently not working but that is because of the current proceedings and family commitments.
61 In 1997 you had a daughter with a person with whom you had a long term relationship. The relationship ended in 1999 and you then had little contact with your daughter. Between 2004 and 2005 you had three boys with another partner. One died soon after birth and you no longer see the two others. However, your relationship with your daughter, whom you recognised on public transport last year, has been re-established.
62 Your daughter, aged 15½, was placed in your care in mid October 2012. She is a difficult child to manage but until recently she was living with you and your mother. She has now been returned to the care of her mother however, you are keen to take responsibility for her and do what you can to ensure that she does not suffer the same disadvantages as you have. You want to do what you can to assist your daughter to settle and avoid drugs and crime.
63 You were released on CISP bail after spending a month in custody on the current offending. During this period you engaged in drug and psychological counselling although it is clear that you have not remained drug free.
64 A body of material was tendered by your counsel. This included a Final Progress Report from Gerry Doyle, your CISP Case Manager, a report from Baptcare Family Services concerning the care and management of your daughter, a psychological report from Karin Steinhoff, to whom you were referred as part of the CISP program and a letter from Dr King of the Sunshine Health and Dental Superclinic, who referred you to Ms Steinhoff.
65 You have some history of mental state problems having been diagnosed with depression and prescribed medication some years ago. You have also been treated with anti-psychotic medication.
66 Ms Steinhoff notes your history of ‘extreme childhood abuse’. She said you suffer ‘attachment issues’ and developed defence mechanisms to ensure you are not hurt. You suffer anxiety, have ‘limited problem solving skills’ and ’poor coping skills’. You experience feelings of ‘hopelessness and helplessness’. You have a ‘low sense of self worth’. You have attempted suicide. You use drugs to numb pain. Ms Steinhoff thought you required a psychiatric assessment as well as neuropsychological testing. She thought you should see a neurologist to assess whether you received a brain injury from a serious accident when you were 2. She also recommended therapy.
67 A report from Dr Lester Walton, consultant psychiatrist, as well as a supplementary report were tendered. He noted your patchy recollection of the incident and thought it more than likely due to alcohol abuse. Dr Walton noted your history of alcohol abuse having first consumed alcohol aged 6 and drinking regularly by 14. He also noted your use of other drugs including the fact that you had taken heroin and cannabis prior to his interview with you.
68 Dr Walton thought you had developed a chronic mood disorder and thought it possible that your chronic depression contributed to the current offending but alcohol abuse, he thought, would be more relevant. He noted your remorse and victim empathy. He could not understand why you have been prescribed long-acting antipsychotic medication and thought this needed review by a treating psychiatrist.
69 I accept that you have made progress with your drug and alcohol abuse problems despite these remaining an issue that needs further addressing. Dr Walton suspected that you might require a residential rehabilitation program. As so often is the case avoiding alcohol and drug abuse is central to your rehabilitative prospects about which I am guarded.
70 I accept that you are very much concerned about the welfare of your daughter and that this is likely to act as a focus to encourage your rehabilitation. It is unclear how your daughter will manage in the care of her mother whilst you are in prison. I accept that this will weigh on your mind and you will find it very difficult if her conduct declines given that she made progress when with you.
71 I accept that your background is such as to make you more sensitive to threats of violence directed at family members and this was the catalyst for your involvement in the current offending. Indeed, both of you seem to have been motivated in this way.
72 I accept that your chronic mood disorder, as described by Dr Walton, played some part in contributing to the current offending by compromising your ability to exercise proper social judgment.
73 A number of impressive character references, some referring to your upbringing and current dedication to your daughter as well as describing her problems, were tendered. You have a considerable amount of family support.
74 Your counsel noted that you must be imprisoned. The prosecution submitted that a range between 2½ and 3½ years with a non-parole period of between 12 and 18 months was appropriate. Your counsel argued that the circumstances would justify a significant disparity between the sentence and non-parole period. As noted in discussion the prosecution range seems to reflect this. Having decided to impose an aggregate sentence of course I need to be vigilant about the admitted facts on which you are to be sentenced and the fact that you are not to be punished for the kidnapping.
75 I will not repeat what I said when sentencing Mr Wallis concerning the significance of the sentence passed on Mr Megne. Parity considerations between you, Mr Wallis and Mr Megne have troubled me. I need to achieve sentences that are just in all the circumstances. It would be quite wrong for me to simply impose the same sentence on you as I did on Mr Megne to achieve superficial equality. You have not been charged with kidnapping; he was sentenced on the basis of powerful mitigating factors, as they then appeared. Mr Wallis has provided information and made an undertaking concerning the fourth offender.
76 After anxious consideration and to achieve justice and what I consider to be a proper balance of all of the relevant sentencing factors I have decided that I should impose a sentence on you that falls at the bottom of the prosecution range. I have been assisted in reaching this conclusion by the prosecution range submissions.
77 You will be convicted of both charges and sentenced to an aggregate sentence of 2 years and 6 months. I fix 12 months as the non-parole period.
78 Once again I recognise the leniency of this sentence but I think the unusual circumstances require it.
79 I declare that you have served 30 days pre-sentence detention and that this period is to be reckoned as time already served on the sentence I have imposed.
80 Had you not pleaded guilty I expect I would have sentenced you to about 3½ years imprisonment, with a non-parole period of about 21 months.
81 I have signed those orders, Mr Pickering. I will hand them down to you.
82 COUNSEL: As Your Honour pleases.
83 HIS HONOUR: Anything that needs correcting or anything that needs to be pointed out to me?
84 COUNSEL: No, Your Honour.
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