Director of Public Prosecutions v Walsh
[2024] VCC 135
•14 February 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
Case No. CR 23-00925
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAY WALSH |
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| JUDGE: | HIS HONOUR JUDGE JOHNS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 06 December 2023 |
| DATE OF SENTENCE: | 14 February 2024 |
| CASE MAY BE CITED AS: | DPP v Walsh |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 135 |
REASONS FOR SENTENCE
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Subject:Criminal Law Sentence
Catchwords: Armed Robbery -Threat to Inflict Serious Injury – Plea of Guilt – Application of Bugmy
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013 249 CLR 571;
Sentence:Total Effective Sentence of 476 Days Imprisonment – 2 Year Community Correction order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nibbs | Mr T. White Office of Public Prosecutions |
| For the Accused | Mr D. De Witt | Mr P. Hurst Victorian Aboriginal Legal Service |
HIS HONOUR:
1Jay Walsh, you have pleaded guilty before me to a charge of armed robbery, which has a maximum penalty of 25 years' imprisonment, and a charge of making a threat to inflict serious injury, which has a maximum penalty of five years' imprisonment. You have also admitted relevant summary offences: possessing a prohibited weapon, two years maximum, and unlicensed driving, six months maximum. You have also admitted relevant prior convictions. Charge 1 is a category 2 offence by virtue of it having been committed in company. This means I must impose a term of imprisonment in respect of that charge other than a combination sentence unless one of the exceptions applies. No submission in favour of an exception has been advanced on your behalf.
Circumstances of Offending
2The circumstances of your offending are set out in the summary of prosecution opening for plea dated 15 November 2023. That summary was Exhibit A on your plea and forms part of these reasons for sentence. I do not propose to summarise in detail the offending.
3In brief terms, your victim was on his two-wheel electric scooter in Norlane, and as he passed Sparks Road, he noticed a motorbike with you and your
co-offender on it. Moments later, the motorbike was behind him, and he heard you yell out 'I'm going to fucking shoot you. Get off the fucking scooter'.4You were carrying a gun that according to him looked like a Glock handgun, all black in colour. You kept yelling 'Get off the scooter. I'm going to shoot you'. You manoeuvred the motorbike beside him, and he started to wobble. Your co-offender removed his helmet and swung it at the victim, yelling 'I'm gonna cave your head in. Just get off the fucking scooter'. Your victim was forced to mount the median strip and lost control before falling to the ground. He got up to try and get the scooter going again. Your co-offender approached him and tried to hit him with the helmet and then wrestled the scooter from the victim as he struck him. The victim was also wearing a helmet.
5You manoeuvred the motorbike to be facing the opposite direction and then dismounted and yelled at the victim 'You're still mouthing off, are you?' The victim told you to ‘fuck off’ before both you and your co-offender got back on the motorbike. The passenger was carrying your victim's scooter. You and your co-offender then headed off on Station Street.
6In relation to Charge 2, the making a threat to inflict serious injury, or before I come on to that, the unlicensed driving. You were unlicensed to drive a motorcycle, and that constitutes the unlicensed driving charge.
7The making a threat to inflict serious injury was on a separate occasion, 25 October. A Mr Badwan was working as a security guard at Market Square Shopping Centre when he noticed you putting items from JB Hi-Fi into your hoodie within the store. He saw you select two items and place them into your hoodie. He then positioned himself outside the store. A colleague called Triple 0. The security alarms sounded as you left. Your victim stopped you and asked you what was in your hoodie and told you just to hand the things back. You said in an aggressive tone that you would punch him if he touched you. When asked to return the goods, you said 'I'm not going to give you anything'. The victim and a colleague of his tried to stop you from leaving, and you said 'If you touch me again, I'll stab you'. You unzipped your hoodie and exposed a black-handled hunting knife about 20 centimetres in length and said 'See the knife?' They let you go, and then you repeated that threat, saying 'I told you I was going to stab you and punch you', before leaving. You were clearly identified on CCTV footage.
8There is a related summary offence relating to possessing a prohibited weapon. When arrested, you were found in possession of an extendable baton. When executing a search warrant at your Norlane address, the stolen scooter was located, as well as a black imitation firearm consistent with the firearm described by the victim on the scooter.
Objective Gravity of Offending
9The objective gravity of the offending is quite serious. Both offences are serious and involved a high degree of terrorising and putting in fear, general thuggery, the sort of behaviour that the community finds abhorrent and is unfortunately all too prevalent in the community. It must be denounced in strong terms. The armed robbery in particular was disturbing in its audacity. It was brazen and outrageous street offending, stealing through force and threats, a valuable item. It is completely unacceptable behaviour that must be denounced in strong terms. Others must be deterred. You must be deterred. The impact upon both victims to be threatened and stood over in that way is shocking behaviour.
Personal Circumstances
10Turning to your personal circumstances, you are a 33-year-old Pitjantjatjara man. You were 32 at the time of the offending. You are a product of your own personal circumstances. You have been shaped by trauma and disadvantage in your life and also by your cognitive profile, and I was provided with materials that supported the matters raised and set out in Mr De Witt's outline on your behalf. I do not propose to summarise in detail your personal circumstances.
11You were born in Dubbo, New South Wales, but largely grew up in Adelaide. Your parents separated when you were young, around about 11 years of age. Your father was your primary caregiver and closest support. Your mother was distant, and I was told that you ceased contact with her in 2014. Your father unexpectedly passed away in 2013, and this understandably made a significant impact upon you.
12Your life had trauma within it. I am not going to go into detail, but I do accept the matters referred to in the reports in relation to significant trauma between the ages of nine and 11 and the ongoing impacts associated with that trauma. I accept the findings as to PTSD, ADHD and the findings of Ms Cidoni, consistent with the 2021 report of Mr Simmons also. In 2023, Ms Cidoni saw you and confirmed and endorsed a diagnosis of PTSD and ADHD. In the particular way those conditions manifest and operate upon you in combination with your cognitive profile and in particular executive functioning, I do accept that your experience in custody subjects you to greater hardship than for others who are not afflicted or experiencing those conditions or your cognitive profile. Your background also enlivens to some degree, in a general sense, the application of the Bugmy principle, and I take that into account.[1]
[1]Bugmy v The Queen (“Bugmy”) [2013 249 CLR 571
13You were performing well early in your schooling, but your schooling deteriorated dramatically following the trauma that I have referred to. You were also subjected to bullying through schooling because you came from disadvantaged circumstances, and your response to that was to lash out and engage in aggressive behaviour which again further affected your schooling, and you disengaged in early high school, opting to not turn up at school and, as so many others in your circumstances do, gravitating towards other like-minded individuals who are going through their own difficulties and engaging in illicit substance abuse, alcohol abuse and anti-social conduct.
14You have worked. You worked in the carnival world in early adulthood. You have also worked in the poultry industry transporting poultry. Your experience in custody has been you have tried to occupy yourself as best you can and you have been employed as a billet.
15You are the father of six children aged between 16 and nine months, and your daughter Ebony was present in the first plea hearing in relation to this matter, as was your then partner Kat, who wrote a letter in support, which I accept the contents of that letter. Unfortunately, that relationship has since broken down, but you have with the assistance of your lawyers actively sought stable opportunities upon your release from custody.
16A particular motivating factor for you is reconnecting with your children and becoming a father that they can look up to and look to for guidance. Central to you achieving that goal is treatment of substance abuse, and that has been a problem for you which no doubt has deep-seated origins that go right back to childhood, so you are going to have to work hard on yourself and on that in particular, and you will get that opportunity to do that at Odyssey House in probably the best environment to do that that this State can provide.
17You are particularly interested in your Aboriginal culture, and you express that culture through art, and you have sold a number of paintings in The Torch program. You are a fine artist, and that is something you ought to be proud of and something you should seek opportunities to pursue wherever you can, because it gives you purpose and gives you that connection and is a very worthwhile and valuable pursuit.
Prospects of Rehabilitation
18I received a community corrections order assessment in your case and also a Mental Health Area Response Service report. The matters contained in those reports were consistent with what had been submitted on the plea. You appear to be genuine in your intention and your endeavours to rehabilitate, and I intend to give you that opportunity.
19Your plea of guilty has great utilitarian value. At the time you entered the plea, these courts were still subject to the flow-on effects from the pandemic, and I give your plea of guilty great utilitarian value in that context. Your experience in custody has also been affected by the COVID-19 pandemic, and I take that into account.
Factors in Mitigation
20Just going back to the Bugmy issue and mental health issues and cognitive profile, the reports before me - that includes the Mental Health Area Response Service report - and the matters submitted on your behalf in combination do lead me to accept there is a relationship between the trauma and the drug issues, the early use of drugs, and these matters largely arise from experiences as a nine- to
11-year-old and explain in many ways your responses throughout life since then, in combination with other matters, such as your cognitive functioning. I have accepted all those matters in mitigation on your behalf, particularly the hardship in custody based on Ms Cidoni's opinion. Nevertheless, there needs to be a recognition that general deterrence is an important factor for offences such as those that you have committed, and it has significant weight in the sentencing process - also denunciation, as I have also mentioned. In your case, I have to have some regard to specific deterrence, and I do so, but I am somewhat optimistic about your prospects of rehabilitation if you can complete the Odyssey House residential rehabilitation program. That will be largely up to you.Sentence
21I will sentence you as follows. On Charge 1 on the indictment, being the charge of armed robbery, you are sentenced to 476 days of imprisonment, and I declare that you have served 476 days of imprisonment if that includes today, does it?
22MR NIBBS: Yes - - -
23HIS HONOUR: Yes.
24MR NIBBS: - - - if we're including today.
25HIS HONOUR: He is still serving it? Yes, so that is the appropriate declaration, I believe. So 476 days, that has been served, because you have served the final day of that today, so that means you can be released today. Do you think that'll work, won't it?
26MR HURST: That's my understanding, Your Honour.
27HIS HONOUR: Because I've made the declaration anyway, so yes.
28MR NIBBS: Yes, Your Honour.
29HIS HONOUR: Now, on Charge 2 on the indictment and all of the relevant summary offences, I am going to impose a two-year CCO. That is a two-year CCO with conviction. Now, I understand once you have left custody you will go to Traralgon and from there you will be residing at Odyssey House, so on the CCO your residential address will be Odyssey House. I am going to make a condition that you engage with the Odyssey House therapeutic community residential rehabilitation program. Odyssey House, the ethos, I suppose, that underpins their operation is that it is a voluntary program, and it is a voluntary program, that drug program, you can leave any time you want, but if you leave you will be in breach of my order, in breach of the corrections order, you understand - - -
30OFFENDER: Yes.
31HIS HONOUR: - - - and then I will have to decide what I put in its place. The other conditions I will make on the corrections order are 50 hours of community work. I will make it clear, that is to be in abeyance until you have completed the
Odyssey House program. Now, that is probably obvious - I do not think Corrections would be under any other misconception - but I state that just to be very clear. I also impose a condition of mental health assessment and treatment as directed and drug and alcohol assessment and treatment as directed, and I also expect that if you go to Odyssey House, as I expect you will and as is required, then those conditions will not be activated until such time as you have completed the program.32OFFENDER: Yep.
33HIS HONOUR: Mr Hurst can explain all that, and these sentencing remarks can be provided to Corrections if there is any confusion about that. I need to make an order against your licence, and you are disqualified from obtaining a licence for a period of six months from today. There is also a forfeiture order I have to make. I make that order. Pursuant to s6AAA, if it were not for your pleas of guilty, I would have sentenced you to a total effective sentence of three and a half years with a two-year non-parole period. Now, are there any other orders I need to make?
34MR NIBBS: No, Your Honour.
35HIS HONOUR: All right, Mr Walsh, well what is going to happen is that corrections order is going to be printed off - - -
36OFFENDER: Yeah.
37HIS HONOUR: - - - I sign it and then it will go to - we will probably end up sending it to Odyssey House for your signature.
38OFFENDER: Yeah.
39HIS HONOUR: We will also send it to Mr Hurst at VALS. So you will be able to get a copy of that, all right?
40OFFENDER: Yep. Um - - -
41HIS HONOUR: Now, other arrangements, Mr Hurst will be able to speak with you. I am happy for you to stay online after I leave the Bench - - -
42OFFENDER: Yep.
43HIS HONOUR: - - - because it is vitally important that you stay in Traralgon
tonight - - -44OFFENDER: Yep.
45HIS HONOUR: - - - and appear at Bairnsdale Train Station before midday tomorrow - - -
46OFFENDER: Yeah.
47HIS HONOUR: - - - so you do not have time for anything else, and you cannot go and stop anywhere else or go and think 'Well, before I go to Traralgon, I'm going to', you know, 'pop up the other end of the city' - - -
48OFFENDER: Yeah.
49HIS HONOUR: - - - because they will not accept you, and if they do not accept you, it is back here - - -
50OFFENDER: Yeah.
51HIS HONOUR: - - - and we work out what we do, all right? Thank you, everyone. If I am required again, just let us know, but we will leave Mr Walsh on the link.
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