Director of Public Prosecutions v Walls

[2020] VCC 973

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02535

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAC WALLS

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2020
DATE OF SENTENCE:	2 July 2020
CASE MAY BE CITED AS:	DPP v Walls
MEDIUM NEUTRAL CITATION:	[2020] VCC 973

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Aggravated burglary; Common assault; Recklessly causing injury; Damaging property; Unlawful assault; Resisting an emergency worker on duty; Combination sentence
Legislation Cited: Crimes Act 1958, Sentencing Act 1991, Summary Offences Act 1966
Cases Cited: R v Mills [1998] 4 VR 235
Sentence: Total effective sentence of 12 months imprisonment and Community Correction Order of 18 months – Pre-sentence detention of 360 days declared as having been served – s.6AAA declaration of 2 years and 6 months imprisonment with a non-parole period of 1 year and 3 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Maguire	OPP
For the Accused	Ms E. Byrt	Papa Hughes

HIS HONOUR: 

1Jac Dylan Walls, you have pleaded guilty to the following charges: 

(i) Aggravated burglary, contrary to s.77 of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment;

(ii)  Common assault, contrary to Common Law, the maximum penalty for that offence is 5 years imprisonment;

(iii) Recklessly causing injury, contrary to s.18 of the Crimes Act 1958. The maximum penalty for that offence is 5 years imprisonment; and

(iv) Damaging property, contrary to s.197(1) of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment.

2You have also pleaded guilty to the following related summary offences:

(i) Two charges of unlawful assault, contrary to s.23 of the Summary Offences Act 1966. The maximum penalty for that offence is 3 months imprisonment or a fine of 15 penalty units;

(ii) Assault an emergency worker on duty, contrary to s.51 of the Summary Offences Act 1966. The maximum penalty for that offence is 6 months imprisonment or a fine of 60 penalty units; and

(iii) Resisting an emergency worker on duty, contrary to s.51 of the Summary Offences Act 1966. The maximum penalty for that offence is 6 months imprisonment or a fine of 60 penalty units.

3You pleaded guilty following the matter being listed for committal, but after negotiations took place that resulted in the withdrawal of a number of charges, in the circumstances, I have treated your plea as an early one and I have taken it into account in your favour in mitigation of sentence.  I accept that it is evidence of genuine remorse by you for your offending and it has spared your victims the burden of giving evidence in this case. 

4You have admitted a criminal history for offences dealt with in the Children's Court, a number of which were dealt with by way of youth supervision order, without conviction, or good behaviour bond.  Apart from a short time on youth remand, you have not been the subject of a custodial order in the past.  There are no subsequent convictions or outstanding charges in your case. 

5An agreed Prosecution Opening was tendered in evidence and your offending may be summarised as follows:

6At 8.55 pm on Sunday 7 July 2019, you entered  Sottile's Pizza in Werribee.  At the time, four persons were working there and it appears that there were no customers present.  You were alone.  Immediately after you entered the premises, you approached the victim Kumar and punched him in the face.  The victim, Materia, went to Kumar's assistance and told you to calm down.  You then punched him.  Kumar armed himself with a rolling pin and you took it from him and hit him with it.  A further struggle occurred and you threw a chair in the direction of two other staff members and damaged the computer screen with the rolling pin, before leaving the shop. 

7The following morning, police attended at your house to arrest you and you used a hammer to resist them and threatened them with it.  You told police you had attempted to take your own life that night and you were then conveyed to the Werribee Hospital for mental health assessment, which you declined.  You were not interviewed by investigators and were charged and remanded in custody, where you remain. 

8At the time you entered the adult prison system on 8 July 2019, you were 20 years old  and had not been imprisoned before.  For reasons that are unclear to me, you were refused bail in the Melbourne Magistrates' Court on 6 September 2019. 

9Aggravated burglary is a serious offence, but your offending is not a serious example of that offence.  You were plainly in a disturbed state, a matter that I will return to.  You were alone and you were not armed when you entered the premises and were confronted by four other men who were there.  There is no rational explanation for what you did and shortly afterwards, you attempted to take your own life. 

10Your offending in the premises, whilst serious, also falls at the lower end of the scale for such offences.  Nevertheless, the sentence that I impose must be calculated to deter others from offending in this manner and the community protected from crimes of this nature.  You too must also be deterred from
re-offending. 

11I have received in evidence a victim impact statement of Mr Materia and I accept that your offending has had a traumatic effect on him and that he requires further treatment to correct an injury that you caused to his nose.  Your offending has disturbed his sense of wellbeing and personal security.  I also accept that your offending would have had a traumatic effect on the other staff members who were present that night. 

12During the course of the plea hearing, you read to the court a letter written by you, setting out your remorse for your offending, which in turn revealed a level of insight into its effect on your victims. 

13I now turn to your personal circumstances.  You were born in Werribee on
10 February 1999 and are now aged 21.  At the time of your offending, you were a young offender for the purposes of the Sentencing Act 1991. You are now a youthful offender and the principles set out by the Court of Appeal in
R v Mills [1998] 4 VR 235, are plainly engaged in your case.

14As I have already observed, in my opinion, your offending is not of such seriousness that the prominence of rehabilitation in the sentencing synthesis in your case should be moderated.  Your future rehabilitation, particularly after the period of time you have spent in an adult prison, is the prominent sentencing consideration in your case. 

15Your childhood and formative years were characterised by disruption and disadvantage.  Your father, who was a heroin addict, subjected your mother and other members of your family to abuse and domestic violence.  Your parents separated when you were 8 years old and your mother re-partnered with a man who then subjected the family to further violence. 

16Your schooling was disrupted and you left school at the age of 15 when you were remanded in youth justice.  You have resided in transitional housing and at the time of your offending, were in a youth housing facility.  You have no regular work history. 

17I have received in evidence a mental health report prepared by Forensicare on 10 July 2019.  When you first entered the adult prison system, the report sets out your then psychiatric condition, including impaired cognition, anxiety, depression and a history of suicide attempts and ideation. 

18Your history of substance abuse disorder is also noted. 

19I am satisfied that at the time of your offending, your mental health issues had intensified and you had consumed a significant quantity of Xanax and alcohol.  You were both mentally disturbed and intoxicated when you offended.  It is not necessary for me to disentangle these factors for the purposes of sentencing you, as it is plain, in my opinion that your future rehabilitation is the prominent sentencing consideration in your case. 

20I have also received in evidence two psychological reports of Ms Alison Maynard a forensic psychologist, setting out your background and psychological profile and I accept that your continued incarceration in prison will cause further deterioration in your mental health and increase the risk of you becoming institutionalised.

21It was submitted on behalf of the prosecution that it would not be open to me to impose a sentence of imprisonment, in combination with a Community Correction Order in your case.  In other words, having regard to the relevant provisions of the Sentencing Act and pre-sentence detention in your case, it was submitted by the prosecution that a sentence of imprisonment of in excess of approximately two years was warranted.  I do not accept this submission.  For the reasons I have set out, I had you assessed for suitability for a Community Corrections Order and you have been assessed as suitable for that disposition. 

22The report to the court refers to a number of incidents you have been involved in whilst incarcerated.  Many of these incidents involved acts of violence, although it is difficult in the context of a young offender in prison to be clear as to their circumstances.  Nevertheless, I wish to emphasise that I have not taken these incidents into account in arriving at the appropriate proportionate sentence in this case.

23I accept, as recommended by Corrections, that it is necessary for you to undergo programs to reduce your risk of re-offending.  Furthermore, I also accept that your prospects for rehabilitation must be approached with caution and as I have said, I am firmly of the opinion that you require ongoing counselling and treatment in the community to address your risk of re-offending.

24In the result, the sentence of a court is as follows:

25On the charges on the Indictment and the related summary offences, you are sentenced to an aggregate sentence of 12 months' imprisonment, and at the completion of which, you are sentenced to complete a Community Correction Order of 18 months on the mandatory conditions provided for in the Sentencing Act 1991 and on the following special conditions:

·During the period of the order, you be under the supervision of a Community Corrections officer;

·During the period of the order, you undertake assessment and treatment for mental health;

·During the period of the order, you undertake assessment and treatment for drug addiction;

·During the period of the order, you undertake assessment and treatment for alcohol abuse; and

·During the period of the order, you undertake programs to reduce the risk of re-offending. 

26Do you agree to entering a community corrections order on those terms and conditions, Mr Walls?

27OFFENDER:  Yes I do.

28HIS HONOUR:  All right.

29I declare that you have served 360 days by way of pre-sentence detention, not including today. 

30But for your plea of guilty, I would have imposed a total effective term of imprisonment of two years and six months and fixed a non-parole period of one year and three months.

31I have made the disposal order sought by the prosecution. 

32HIS HONOUR: The court will now adjourn until Tuesday 7 July at half past nine.  Thank you.