Director of Public Prosecutions v Walsh
[2021] VCC 1281
•7 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00230
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AYDEN WALSH |
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JUDGE: | Cahill | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 April 2021, 30 August 2021 | |
DATE OF SENTENCE: | 7 September 2021 | |
CASE MAY BE CITED AS: | DPP v Walsh | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1281 | |
REASONS FOR SENTENCE
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Subject:Intentionally damaged property, burglary and theft
Catchwords: Guilty plea – ramraid of ATM in company – serious offending – secondary offender – relative youth – 1st offender – early play – very favourable rehabilitation prospects
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes [2021] VSCA 169 Boulton v R (2014) 46 VR 308, [2], [131] Williams [2018] VSCA 171 [47]
Sentence: Community Corrections Order for two years, 200 hours of community work condition.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Sargent | Office of Public Prosecutions |
| For the Accused | Mr O. Cain |
HIS HONOUR:
1Ayden Walsh, you have pleaded guilty to:
(a) one charge of theft of a motor vehicle (Charge 1);
(b) one charge of burglary (Charge 2);
(c) one charge of damaging property (Charge 3); and
(d) one charge of theft (Charge 4).
2You also have pleaded guilty to a related summary offence of committing indictable offence, namely the four crimes on the indictment, while you were on bail.
3The circumstances of your offending are set out in the summary of prosecution opening.[1]
[1] Exhibit A.
4Early in the morning of 11 May 2019, an unknown co-offender picked you up in a stolen truck (Charge 1 – theft of motor vehicle).
5At approximately 4.45 AM the two of you broke into the Wodonga TAFE by driving the stolen truck through the entrance doors (Charge 2 – burglary). Between you, you reversed the truck up to an ATM, attached a snatch strap from the truck to the ATM and removed it from the wall by driving the truck forward. The ATM was smashed open by reversing the truck into it and its cash contents of $6,710 were removed (Charge 4 – theft). Approximately $120,000 of damage was caused to the TAFE building (Charge 3 – damaging property).
6The escapade, which lasted around 10 minutes, was captured on CCTV footage.[2]
[2] Exhibit C.
7I have viewed the film. Your co-offender had his face covered his face covered to disguise his identity. You did not. He was driving the truck. He reversed it into the building. He tried, several times, to dislodge the ATM by attaching a strap to it and driving forward. When this didn’t work you helped him clear furniture from his path and he reversed the truck into the ATM to smash it open. You helped him to remove cash from the broken machine. You picked up a quantity of banknotes which had spilled onto the floor and put them in a plastic bag. The two of you left in the truck and later abandoned it nearby.
8I have also seen photographs of the extensive damage he caused to the building.[3]
[3] Exhibit B.
9On 19 August 2020, police arrested and interviewed you.
10I have read the transcript of the interview.
11You admitted your involvement in the crimes. You told police, when you offended, you had separated from your partner and were living in your dad’s car.[4] You said you were suicidal and “into drugs (ice and Xanax) very hard”.[5] You said your co-offender told you of his plan to steal the ATM contents early in the morning 19 May and things quickly escalated. You said you didn’t know the truck was stolen until you got into it.[6] As the informant, who interviewed you, put it, you got “in too deep too quick”.[7] You said you grabbed a handful of cash, “about a thousand bucks” which you spent on “stupid” things like chocolates.[8] You disclosed you had burnt your clothing and shoes afterwards.[9] You said, since, your partner had pulled you into line, you had gotten a job as an apprentice butcher and the two of you were expecting a child.[10] The informant acknowledged you had “turned things around”.[11]
[4] Record of Interview, Q 15 and 16.
[5] Record of Interview, Q 13 and 14.
[6] Record of Interview, Q 37
[7] Record of Interview, Q 55.
[8] Record of Interview, Q 63.
[9] Record of Interview, Q 120.
[10] Record of Interview, Q 18 – 21.
[11] Record of Interview, Q 195.
12Your criminal escapade attracted local publicity and police told you people had provided them with information which identified you.[12]
[12] Record of Interview, Q 186.
13The next day, you were charged with these offences and you were released on bail.
14At the committal mention on 13 February 2021, you agreed to plead guilty to the charges on the indictment.
15On 13 April 2019, before this offending, police had stopped you while you were driving a car. You had several small bags of methylamphetamine. An oral fluid test detected methylamphetamine in your system. You were charged and bailed to appear at Wodonga Magistrates Court on 23 July 2019.
16Accordingly, you were on bail when you committed these crimes (Summary offence – commit an indictable offence while on bail).
Criminal Record
17You have no prior criminal record.
18You have two subsequent appearances at Wodonga Magistrates Court.
19On 29 August 2019, you were convicted of contravening a bail conduct condition and placed on a six-month Community Correction Order with the condition you performed 20 hours unpaid community work.
20On 10 March 2020, you were convicted of trafficking methylamphetamine, possession of drugs of dependence and failing an oral fluid test, arising out of your interception by police on 13 April 2019, and placed on another Community Correction Order for 12 months with a condition you perform 50 hours of unpaid community work.
Personal Circumstances
21You were born on 19 December 1996. You were 22 years old when you committed these crimes. You are now 24.
Defence Submissions
22Your counsel, Mr Cain, relied on the following documents in support of his written[13] and oral submissions:
(a) the report, dated 1 July 2021, of Geoffrey Cummins psychologist;
(b) CISP progress reports one, two and three, and the final report;
(c) New South Wales Coroners Court letter in relation to the death of your partner’s father;
(d) A letter from your employer;
(e) A letter from a friend;
(f) A letter from your partner’s mother; and
(g) A letter from an Alcohol and Drug Practitioner from Gateway Health.
[13] Exhibit 7.
23Your personal circumstances are set out in Mr Cummins report.
24You were born in Wodonga. Your father is a truck driver and your mother a commercial cleaner. Your family also runs a pizza shop in Wodonga. You are the oldest of six children.
25You grew up in a loving and caring family. You attended local schools. You struggled academically and left school in Year 10 to commence a spray painting and panel beating apprenticeship, which you completed. When you were 21, you purchased the pizza shop and, for nine months, worked two jobs, spray-painting during the day and cooking pizza at night and on weekends.
26You started using drugs to keep going. Around the time you offended, your drug use was out of control and you stopped working. As you told police, your partner, Brooke, left you and you were in your living in your car. After about six months she pulled you into line, you got off drugs, you started a butcher’s apprenticeship and in March last year your son was born. Your employer describes you as “diligent, hard-working, responsible and well liked”. You are a valued employee and he wants you to complete your apprenticeship with him.
27You had hidden your drug use from your parents. They are law-abiding people. They are very supportive of Brooke, your son and you.
28After your arrest on 20 August 2019, you completed a CISP bail program which was conditioned to address your substance abuse. Over a 5-month period, you attended for regular supervision, you engaged in drug counselling at Gateway health, you got off the drugs, you got work and moved you back in with Brooke and her family. You also sought medical help from your GP to deal with the stressors which lead to your drug problems.
29According to your referees, you have continued to progress your rehabilitation.
30Your partner’s mother has known you for four years. She wrote you are a loving and caring partner and father, and you are doing your best to provide for your family. You have expressed remorse to her for your crimes and she hopes you get a chance to prove you have changed. A friend, Allison, has seen you turn your life around in the last 18 months and regain the respect of your family and friends. She has worked with troubled youth and believes you have reformed.
Cummins Opinion
31Mr Cummins assessed you on 19 April 2021.
32You told him you accept responsibility for your offending and to him, you expressed appropriate remorse.
33You have no history of mental illness.
34Understandably, because of the risk you will be jailed for your crimes, you presented with some stress and anxiety.
35In Mr Cummins’ opinion, because of the extent to which you have rehabilitated yourself while on bail, your mental health would deteriorate if you are now incarcerated.
36And because of the many pro social factors, including your full-time employment, your stable relationship, parental responsibilities and extended family support, he believes your prospects for rehabilitation are favourable.
37I accept his opinions, which were unchallenged.
38In support of a submission I should release you on a Community Corrections Order for these crimes, Mr Cain relied on the following mitigating factors:
(a) firstly, your relative youth;
(b) secondly, your lack of any prior criminal history;
(c) thirdly, your candid admissions to police;
(d) fourthly, your early guilty plea;
(e) fifthly, your remorse; and
(f) sixthly, your favourable prospects of rehabilitation.
Prosecution Submissions
39Ms Sargent, who appeared for the prosecution, in written[14] and oral submissions, contended your burglary and damaging property offending are serious examples of those offences considering:
· the offending was committed in company;
· there was a degree of premeditation and planning;
· the burglary involve the use of a stolen vehicle;
· the TAFE building was extensively damaged (approximately $120,000);
· you wore gloves and later burned your clothing and shoes to reduce the risk of your detection; and
· you were will on bail for unrelated offending when you committed these crimes.
[14] Exhibit D.
40She submitted, because of the seriousness of your offending, general deterrence and denunciation are important.
41She accepted, for you, a young man and first offender with favourable prospects of rehabilitation, specific deterrence has less relevance.
42She acknowledged your age, absence of a criminal history, cooperation with police at interview and guilty plea, are mitigating factors.
43She submitted, taking into account the circumstances of your offending and your personal circumstances, a term of imprisonment in combination with a Community Correction Order is within sentencing range.
Consideration
44Each of the four crimes on the indictment carries a maximum penalty of 10 years imprisonment.
45Your break-in to the TAFE, effected by crashing into the building’s entrance doors and smashing the ATM machine with the small truck, and the substantial damage you caused, are serious examples of burglary and damaging property.
46General deterrence and denunciation are important sentencing considerations. Ordinarily, a term of imprisonment should be imposed.
47Your moral culpability, while high, is less than your co-offender’s.
48I am satisfied you were not the primary offender. The CCTV footage captures your co-offender in control of the criminal escapade.
49I am also satisfied he planned it and your decision to participate, made in circumstances where you were drug affected and homeless, was impetuous and poorly thought out. I accept, while you were a willing helper, you would not have committed these crimes alone.
50Your sentence must be moderated to take into account a number of significant mitigating factors in your favour.
51You are entitled to a clear sentencing benefit for your early guilty plea, for its high utilitarian value, especially during the public-health pandemic, because it alleviates the current strain on the justice system.[15]
[15] Worboyes [2021] VSCA 169, [35], [39]
52Your remorse demonstrated by your cooperation with police, your guilty plea and expressions to others, is also mitigatory.
53You are to be sentenced as a first offender. You were 22 years old when you committed these crimes. Your relative youth and previous good character require your prospects of rehabilitation to be given significant weight.
54While you are not to be punished for your subsequent offending those matters are relevant to specific deterrence and rehabilitation.
55During the two-year delay in sentencing, while you have had the outcome hanging over your head, you have made impressive steps towards your rehabilitation by:
· complying with strict bail conditions;
· engaging in counselling to address your drug problem;
· achieving drug sobriety;
· reconciling with your partner;
· obtaining stable employment; and
· caring for and supporting your partner and child.
56Taking into account your considerable progress, I consider you have very favourable rehabilitation prospects and I regard specific deterrence as less important in your case
57Because your crimes arose in one episode of offending I will impose an aggregate sentence for all of them.
58As you are to be sentenced for several crimes, I have had regard to the totality principle to ensure your sentences a proper measure of your overall criminality.
59And, because there was another offender, the parity principle, which requires consistency and punishment of co-offenders, must be considered.
60I was informed your co-offender was charged but the prosecution was discontinued because of an insufficiency of evidence against him.
61Accordingly, because you co-offender has not been sentenced parity has no significant role to play. However, you should not be left with any unjustifiable sense of grievance at your respective outcomes.
62A Community Correction Order can enable the punitive and rehabilitative objectives of sentencing to be served the same time, even in cases of very serious offending.[16]
[16] Boulton v R (2014) 46 VR 308, [2], [131] Williams [2018] VSCA 171 [47]
63I have had you assessed for a Community Correction Order and you have been found suitable. You successfully completed an earlier work only Community Correction Order; a second is currently in contravention.
64The assessing officer believes, because you assess as a low risk of reoffending, neither supervision nor a drug treatment condition are required.
65Overall, I am satisfied a Community Correction Order can achieve all sentencing objectives in your case. I do consider a community work condition is a necessary punitive component.
66Mr Walsh, by the sentence compound may I impose I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
67Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to your, on the indictable charges of theft of a motor car, burglary, damaging property and theft, and the summary charge of committing the indictable offences while you were on bail, you are convicted and released on a two-year Community Correction Order with a special condition you complete 200 hours of unpaid community work.
68The order commences today and you are to report to the Wodonga Community Corrections Service within two clear days.
69Section 89(4) of the Sentencing Act requires me to suspend or cancel your driver’s licence upon conviction for theft of a motor car.
70As you committed serious crimes which involved the use of a stolen motorcar, it would not be appropriate to refrain from imposing a conviction. I order that your Victorian drivers licence be suspended for a period of two months from today’s date.
71While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to two years’ imprisonment and fixed a minimum non-parole period one year and three months’.
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