Director of Public Prosecutions v Walsh

[2014] VCC 1581

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

AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON WALSH
ANTHONY EDWARDS
ADAM SIMMONS

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Bendigo
DATE OF HEARING:	28 August 2014, 29 August 2014, 17 September 2014
DATE OF SENTENCE:	19 September 2014
CASE MAY BE CITED AS:	DPP v Walsh & Ors
MEDIUM NEUTRAL CITATION:	[2014] VCC 1581

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Jones	O.P.P.
For Offender WALSH	Ms A Kapitaniak	Robert Stary Lawyers
For Offender EDWARDS	Mr A. Patton	Haines & Polites
For Offender SIMMONS	Ms T. Hartnett	Leanne Warren & Associates

HIS HONOUR:

1Simon Paul Walsh, you have pleaded guilty to the following charges: 

2Theft, contrary to s.74(1) of the Crimes Act 1958, the maximum penalty for that offence is ten years' imprisonment;

3Burglary, contrary to s.76(1) of the Crimes Act 1958, the maximum penalty for that offence is ten years' imprisonment;

4Possession of a drug of dependence, contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for that offence is a fine of 30 penalty units or imprisonment for one year or both.

5You pleaded guilty following negotiations to resolve this matter when it was listed for trial.  Your plea has spared the community the cost and inconvenience of a difficult criminal trial, and I also accept that your plea is some evidence of remorse in your case.  Accordingly, I have taken your plea into account in your favour in mitigation of sentence.

6You have admitted an extensive criminal history for offences of aggravated burglary, burglary, theft, recklessly causing serious injury, intentionally causing injury, drug offending and culpable driving.  You have breached a number of court ordered dispositions intended to facilitate your rehabilitation, and you have served a number of terms of imprisonment. 

7Anthony John Edwards, you have pleaded guilty to the following offences:

8Theft, contrary to s.74(1) of the Crimes Act 1985;

9Attempted burglary, contrary to s.76(1) and s.321M of the Crimes Act 1958, the maximum penalty for that offence is five years' imprisonment;

10Two charges of possession of a drug of dependence, contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981.

11You also pleaded guilty following negotiations to resolve this matter when it was listed for trial.  Your plea has also spared the community the cost and inconvenience of a difficult criminal trial.  I also accept that your plea is evidence of genuine remorse for your offending, and I have taken your plea into account in your favour in mitigation of sentence.

12You have admitted a criminal history which is not significant for sentencing purposes in your case.  You have not offended for approximately nine years, and your prior convictions generally concern street offending whilst intoxicated. 

13Adam Scott Simmons, you have pleaded guilty to one charge of theft, contrary to s.74(1) of the Crimes Act.

14You also pleaded guilty following negotiations to resolve this matter when it was listed for trial.  Your plea has also spared the community the cost and inconvenience of a difficult criminal trial, and I also accept that your plea is evidence of genuine remorse for your offending, and I have taken your plea into account in your favour in mitigation of sentence.

15You have no prior convictions, subsequent convictions or outstanding charges.  Accordingly, you are a first offender. 

16A prosecution opening was read to the court and tendered in evidence, and your offending may be summarised as follows: 

17In the early hours of the morning on 6 June 2013 Walsh and Edwards went to Simmons' home in Castlemaine.  Walsh was under the influence of methylamphetamine and Edwards was in possession of that substance. 

18During the course of the morning, all three of you discussed an allegation made by a friend of Edwards', Jai Hohnel, that Scott Telford had stolen a large amount of goods from him.  The location of Telford's address was established by reference to his Facebook account or text message from Hohnel, and all three of you agreed to proceed to the premises to recover the goods from Telford. 

19As I observed during the course of the plea in mitigation, it is not clear that this was the only purpose of your attendance at the premises, and during the course of the hearing, Walsh submitted that he attended to obtain a quantity of cannabis from Telford. 

20Simmons drove all three of you in Edwards' partner's car to Telford's premises, and you arrived there at approximately 6 am.  Simmons parked the car nearby and waited in it.  Edwards and Walsh walked to the premises.  Walsh entered the premises via an unlocked rear door.  Edwards waited outside. 

21Telford, his sister Elizabeth and her three children aged 14, nine and seven were asleep in the premises.  Walsh entered Telford's bedroom, got on top of him and said he was Hohnel's cousin.  Telford struggled with Walsh, and the noise of this woke one of Elizabeth Telford's children, who then woke his mother.  She went to Telford's bedroom and questioned Walsh who said, "This guy has stuff of ours". 

22Edwards then appeared at the bedroom window, and after he attempted to enter the house, Walsh started taking goods from the bedroom and threw them out the window to Edwards.  Elizabeth Telford rang the police who responded quickly, and upon arriving at the premises, arrested Edwards and Simmons. 

23Walsh avoided apprehension, and stole Elizabeth Telford's wallet, car keys and tobacco as he left.  A search of Edwards' partner's vehicle revealed personal items belonging to Walsh and a number of Xanax tablets which are relied upon in proof of Charge 6 on the Indictment. 

24Edwards was in possession of Valium and methylamphetamine which is relied upon in support of Charges 4 and 5 on the Indictment. 

25In my opinion, this offending constitutes serious examples of the offences of burglary, attempted burglary and theft.  A family home was entered in the early hours of the morning with the purpose of stealing goods.  Whatever the background to the offending, this was conduct of a kind without any justification. 

26I have received in evidence a Victim Impact Statement of Elizabeth Telford, and I accept that your offending has had a deeply traumatic effect on her.  Your indefensible and cowardly conduct has caused great disruption to her life and the lives of her children. 

27Offending of this nature is increasingly prevalent, and the sentence that I impose must be calculated to deter others from offending in this way.  Your conduct must be denounced by this court, and you must also be punished for what you have done. 

28Specific deterrence is also a significant sentencing consideration in the case of Walsh. 

29It is accepted by all parties that whilst I must pay due regard to the principle of parity in sentencing by reason of your differing roles and antecedents, disparate sentences are warranted in the circumstances of this case. 

30I now turn to your personal circumstances. 

31Simon Paul Walsh, you were born on 14 November 1977 and you are now aged 36.  You have, as I have said, an extensive criminal history.  There are also a number of outstanding charges to be dealt with on 23 September 2014 in the Magistrates' Court at Melbourne by way of a plea of guilty. 

32Whilst I am only concerned with your offending on this occasion, you continued to offend after these offences until your apprehension in Melbourne on 10 July 2013.  On that day, you were remanded in custody where you have remained. 

33You completed year 11 at Castlemaine High School, and I accept that your childhood and developmental years were disrupted by the separation of your parents and your father's alcoholism. 

34Your work history has been intermittent, and you have suffered from polysubstance abuse disorder for a number of years.  In 1999 you were involved in a fatal motor collision and pleaded guilty to culpable driving.  Following your release from prison, your drug use escalated and you continued to offend. 

35In my opinion, your prospects of rehabilitation are poor, although I accept that on your release from prison you will have the support of your mother who has provided a reference to the court. 

36Your counsel submitted that you would not seek parole in the event that I fix a non-parole period because you have breached parole in the past.  That submission tends to support the assessment that I have made as to your poor prospects for rehabilitation.

37As I indicated, I also do not accept that imposing a penalty that would provide for your imminent unsupervised release from prison would be an appropriate proportionate penalty in this case. 

38Anthony John Edwards, you were born on 7 March 1979 and you are now aged 35.  You have a limited criminal history which is not significant in this case. 

39You have been in a long-term relationship and have a four year old son.  You were educated to year 9 at Castlemaine High School, and after leaving school, completed an apprenticeship as a mechanic.  You have an excellent work history and have occupied in the past positions of some responsibility. 

40You have abided by strict bail conditions after serving one day in custody following your arrest.  You reside with your parents, and currently have a large role to play in the care of your child, as your partner is ill with cervical cancer. 

41I accept that you are remorseful for your offending, and you demonstrated this by your conduct during the proceedings in court. 

42In my opinion, your prospects of rehabilitation are good, and your parents attended the proceedings in court to support you. 

43Furthermore, in my opinion, the purpose for which the sentence is to be passed in your case will be achieved by the imposition of a term of imprisonment that is wholly suspended. 

44Adam Scott Simmons, you were born on 23 July 1980 and are now aged 34.  You have no criminal history. 

45You reside with your mother in Castlemaine.  You left school at the age of 15 to work to assist the family, as your father had a serious stroke when you were 11.  He died when you were 16.  You trained as a carpet layer, but suffered a serious back injury in 2008.  Thereafter, you worked part time for three years, but have been unable to work since 2011, and you are now on a disability pension. 

46You intend to retrain and re-enter the workforce following the completion of these proceedings, and in my opinion, your prospects of rehabilitation are very good.  In all probability, you will not reoffend. 

47You also spent one day on remand following your arrest for your offending in this case. 

48Furthermore, you played a significantly lesser role than your co-accused in the offending, and at all material times remained in the vehicle. 

49Would you stand up, please, gentlemen. 

50In the result, the sentence of the court is as follows: 

51Simon Paul Walsh, in relation to the charge of theft, you are convicted and sentenced to be imprisoned for 15 months; in relation to the charge of burglary, you are convicted and sentenced to be in prison for two years and six months; in relation to the charge of possession of a drug of dependence, you are convicted and sentenced to be imprisoned for 14 days. 

52I order that six months of the sentence on the charge of theft be served cumulatively on the charge of the sentence imposed in relation to the charge of burglary. 

53This makes for a total effective term of three years' imprisonment.

54I order that you serve two years' imprisonment before becoming eligible for release on parole.

55I declare that you have served 436 days by way of presentence detention, not including today.

56But for your plea of guilty, I would have imposed a total effective term of imprisonment of four and a half years, and a non-parole period of three years.

57Anthony John Edwards, in relation to the charge of theft, you are convicted and sentenced to be imprisoned for six months; in relation to the charge of attempted burglary, you are convicted and sentenced to be imprisoned for 12 months; in relation to the charge of possession of diazepam, you are convicted and fined the sum of $500; in relation to the charge of possession of methylamphetamine, you are convicted and fined the sum of $1,000.

58I order that three months of the sentence on the charge of theft be served cumulatively on the sentence imposed on the charge of attempted burglary.

59This makes for a total effective term of imprisonment of 15 months. 

60I order that that term of imprisonment be wholly suspended for a period of two years. 

61I order a stay of three months in relation to the payment of the fines.

62But for your plea of guilty, I would have imposed a total effective term of imprisonment of 18 months and ordered that you serve nine months before becoming eligible for release upon parole. 

63Adam Scott Simmons, in relation to the charge of theft, you are convicted and the further hearing of the matter is adjourned for a period of two years on you entering an undertaking to be of good behaviour in the meantime. 

64I have made the ancillary orders sought on behalf of the prosecution. 

65Is anything further required?

66COUNSEL:  No, Your Honour.

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