Director of Public Prosecutions v Wolter (No 3)
[2024] ACTSC 200
•30 May 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Wolter (No 3) |
Citation: | [2024] ACTSC 200 |
Hearing Date: | 20 May 2024 |
Decision Date: | 30 May 2024 |
Before: | Christensen AJ |
Decision: | See [55] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – review – s 80ZE cancellation of drug and alcohol treatment order – imposition or resentence – breaches of treatment order obligations – substantial efforts at rehabilitation – resentence – suspended term of imprisonment imposed – good behaviour order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 80ZD, 80ZE, 80ZH, 85 |
Cases Cited: | DPP v John [2023] ACTSC 311 |
Parties: | Director of Public Prosecutions ( Crown) Dylan Wolter ( Offender) |
Representation: | Counsel T Cobden ( Crown) M Greig ( Offender) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Numbers: | SCC 61, 62 of 2023 |
CHRISTENSEN AJ:
Introduction
1․Dylan Wolter comes before the Court for the purposes of finalisation of the review proceeding during which there has been cancellation of his drug and alcohol treatment order (treatment order).
2․The treatment order was imposed on 9 June 2023 in relation to five offences. On that date, Refshauge AJ sentenced Mr Wolter to a total of 3 years imprisonment, with two years of the order being a drug and alcohol treatment order, followed by a good behaviour order.
3․The treatment order was cancelled on 1 August 2023 pursuant to s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). On 3 October 2023, Mr Wolter was granted bail and he has remained in the community and engaged in rehabilitation since that time.
Imposition or resentence?
4․The current proceedings are to be regarded as an ongoing process of review applying both ss 80ZH and 80ZE of the Sentencing Act. While more properly a cancellation decision and determination as to imposition or resentence occur as part of a single order (DPP v Smith [2024] ACTSC 99 at [31]), the distinction in available orders under the applicable sections contemplates the process that necessarily applies here. The proceedings occurring in this manner are as occurred in a process of review involving cancellation pursuant to s 80ZD and resentence in R v Burge (No 2) [2024] ACTSC 20.
5․It follows then that at this stage of the review, a preliminary determination is whether to impose the sentence of imprisonment that was suspended under the custodial part of the treatment order, or whether to resentence Mr Wolter: s 80ZE(2) Sentencing Act. This requires firstly consideration as to the extent of compliance with the treatment and supervision part of the order, as was described in R v Cook (No 2) [2024] ACTSC 27 at [10]:
Accordingly, being a cancellation pursuant to s 80ZE(1), a preliminary consideration is the extent to which there was compliance with the treatment and supervision part of the order. Having considered that, the court then turns to consider if it is appropriate in the circumstances to resentence. If it is not, the suspended portion is imposed.
6․Mr Wolter’s compliance, or more accurately, lack of compliance, plainly tends towards imposition of the suspended portion. Mr Wolter was in the community on the treatment order for a period of 39 days, although it was only for 21 days of that period that he was engaged with the order.
7․Even during that period of engagement, he was largely non-compliant. At his first court review, Mr Wolter was sanctioned for having missed urinalysis testing and for not maintaining contact with the drug and alcohol treatment team. In the week that followed, he again missed urinalysis and appointments, and was again sanctioned. Testing returned positive results for illicit substances, although Mr Wolter initially claimed this was from passive consumption. Mr Wolter later admitted substance abuse, following an engagement with an associate.
8․Mr Wolter did commence the Matrix rehabilitation day program, and there was some initial positive engagement. This was not maintained. He failed to appear at his third court review, and a warrant was issued for his arrest. This was executed on 18 July 2023 and Mr Wolter appeared at court and the review process commenced.
9․This led to, as already observed, Mr Wolter’s treatment order being cancelled. The decision to cancel Mr Wolter’s treatment order reflected his lack of compliance, and also that he had not complied with his Justice Housing requirements such that he was to vacate the residence and no longer had accommodation available. There were no program options available that were considered satisfactory from a therapeutic perspective.
10․The review process also subsequently led to Mr Wolter being granted bail and having the opportunity to engage with the ‘We Help Ourselves’ (WHOS) residential rehabilitation program in Goulburn from 3 October 2023: DPP v Wolter (No 2) (Supreme Court of the Australian Capital Territory, Refshauge AJ, 3 October 2023).
11․Mr Wolter has embraced that opportunity, despite his significant non-compliance with the treatment order. He has demonstrated his genuine intent to rehabilitate and has made significant progress towards doing so, including not having reoffended. Having regard to this, both parties submitted that resentence is appropriate.
12․I am satisfied that there have been “substantial efforts at rehabilitation” and progress achieved such that “the original sentence may no longer be appropriate, in the sense that had those efforts and progress been made and achieved before sentence, a different sentence would have been imposed”: R v Tonna (No 2) [2020] ACTSC 362 at [78]. It is appropriate in the circumstances to resentence Mr Wolter.
Resentence
13․The offences the subject of resentence, and the maximum penalties that apply are:
(a)One offence of aggravated burglary – 20 years imprisonment, 2000 penalty units, or both;
(b)Three offences of obtain property by deception – 10 years imprisonment, 1000 penalty units, or both; and
(c)One offence of drive while disqualified (repeat offender) – 12 months imprisonment, 100 penalty units, or both.
Nature and circumstances of the offending: s 33(1)(a) of the Sentencing Act
14․The facts of the offending are set out in detail in the original sentence decision: DPP v Wolter (Supreme Court of the Australian Capital Territory, Refshauge AJ, 9 June 2023) (DPP v Wolter (unreported)). The transcript of that decision will be incorporated as a schedule to these reasons.
15․In relation to the aggravated burglary, the facts as considered at the original sentence included reference to Closed Circuit Television footage which was not provided for the purpose of resentence. Per the facts as previously outlined, the offending involved, in summary, that in the early hours of 9 May 2022, Mr Wolter entered the carpark of an apartment complex in Kingston by forcing the lock with a tool. He was with a co-offender. They broke into a number of cars and removed property. The items taken and the value of them is not detailed.
16․As to the offences of obtaining property by deception, these occurred on 4 and 13 November 2022. The offending involved Mr Wolter using stolen credit cards at retail premises on three occasions. The first occasion involved eight transactions, with a total of $719.13. The second involved one transaction, totalling $160.00, and the third with two transactions totalling $116.95.
17․In addition, the offence of driving while disqualified was regarded as a related offence. This was committed on 22 November 2022. The offending was detected when Mr Wolter was apprehended driving in a vehicle, with cards from the deception offending located in the vehicle. His licence had been disqualified since 2015, with the totality of Mr Wolter’s licence disqualifications ending in 2031.
Subjective circumstances
18․Mr Wolter is now 31 years of age and was aged 29 years at the time of the offending.
19․He has a criminal history, with previous convictions related to driving offending and other minor offences, such as possession of cannabis and minor theft. This includes multiple previous convictions for driving while disqualified. Mr Wolter had not previously offended in the manner the subject of sentence, but this offending, his criminal history, and a previous sentence decision (R v Wolter(No 3) [2015] ACTSC 321), evidence a
long-standing substance abuse problem.20․Mr Wolter’s subjective circumstances are otherwise set out in detail in the original sentence decision. He is the older of two children of his parents, who provide him with support. He is of aboriginal ancestry though the extent of his connection with his cultural identity is not clear. He has no children.
21․Mr Wolter’s subjective circumstances include that he has had achievements in gaining qualifications and with employment. There was a period after his release from prison in September 2018 until July 2021 when there was no offending behaviour. In 2019, he experienced a workplace accident that caused a significant set back from his previous gains in rehabilitation. This led to Mr Wolter’s offending behaviour the subject of the current resentence.
Rehabilitation
22․Mr Wolter’s progress towards rehabilitation has been monitored by the Court since he was granted bail and commenced with WHOS.
23․On 31 January 2024, he completed the residential part of the WHOS program. He moved onto the first of two transition phases, initially being with a transition house facilitated by the rehabilitation program. A day program, and participation in rehabilitation meetings was continued in the community.
24․As at 11 April 2024, Community Corrections advised that the rehabilitation program staff speak positively of Mr Wolter’s progress and engagement with the program. He is benefiting from being substance free, in terms of his mental health, and his ability to engage with ongoing treatment therapy.
25․Mr Wolter intends to remain residing in Goulburn to complete the program, and thereafter. He has developed positive social networks and is looking for employment. He is able to maintain close support from family members in Canberra. His family members describe that Mr Wolter is a “different person” now, that he has now “found a sense of purpose” and that there is now “a great hope for his future”.
26․A final observation to make as to Mr Wolter’s progress with respect to rehabilitation is that following the sentence hearing on 20 May 2024, Mr Wolter was discharged from the transitional residential service for having an illegal/non-prescription vape device. Mr Wolter does not admit the circumstance that led to discharge. He has though accepted the circumstances and was immediately admitted into the WHOS day program and secured accommodation with his sponsor at an address in Goulburn. Mr Wolter’s sponsor speaks highly of him and describes him having made “undeniable efforts to not return to jail and drug addiction”.
Plea of guilty: ss 33(1)(j), 35 of the Sentencing Act
27․There was initially a plea of not guilty to the charges in the Magistrates Court, however, this changed to a plea of guilty after a brief of evidence was made available. From that time, an intention to appear in the Supreme Court for the purposes of the Drug and Alcohol Sentencing List was indicated. As found at the original sentence proceeding, discounts in the order of 20 per cent are appropriate.
28․It was also found at the original sentence proceeding that the pleas of guilty otherwise confirmed Mr Wolter’s expressed remorse for the offending. Mr Wolter is described as having insight into his offending and the harm done to the victims. I also take this into account.
Time in custody
29․Prior to the original sentence, Mr Wolter spent a total of 193 days on remand, from 22 November 2022 until 2 June 2023.
30․The treatment order was provisionally cancelled on 18 July 2023 and Mr Wolter remained in custody until he was granted bail on 3 October 2023. A period of 78 days is to be regarded as further time served on the sentence: ss 80ZC(3), 63 Sentencing Act.
31․There has also been a lengthy period in residential rehabilitation, which I find, per the prosecution submission, to be a period of 121 days. A further 110 days has been spent engaged in the same rehabilitation program, but not in the same restrictive residential environment.
32․In some circumstances, residential rehabilitation can amount to ‘quasi-custody’ such that it is regarded as time spent on presentence custody: DPP v John [2023] ACTSC 311. However, different circumstances inform whether it is appropriate to take it into account in that way: R v West (No 2) [2024] ACTSC 5 at [67]-[69]. Here, the period in residential rehabilitation is informative as to the time at which it is appropriate to suspend the term of imprisonment.
Current sentencing practice: s 33(za) of the Sentencing Act
33․The original sentence proceeding considered current sentencing practice with reference to comparative authorities, to the extent that they can be applicable: DPP v Wolter (unreported), 17.
34․I have had regard to the authorities and consideration that occurred there, as well as the sentences originally imposed on Mr Wolter which are informative as to current sentencing practice.
Parity
35․Also informative to the determination of the appropriate sentence is the principle of parity.
36․At the time of the original sentence proceeding, information as to the sentence imposed on the co-offender was not available to the Court. For the purposes of resentencing, the Court has been informed that the co-offender, who was younger than Mr Wolter, but otherwise had similar subjective circumstances at least in terms of having a criminal history, was sentenced to a term of 14 months full-time imprisonment.
37․The co-offender was also sentenced for two associated damage property offences arising from the same incident. The co-offender had a role involving directly causing damage to vehicle windows.
38․I have found it of assistance to consider the approach taken recently by Mossop J in R v Vilayur (No 3) [2024] ACTSC 132 (Vilayur) at [65]-[75] as to the application of this principle in circumstances where, but for the parity principle, another sentence might have been imposed. Further, as observed by Mossop J in Vilayur, what was said by the Court of Appeal in R v Nicholas; R v Palmer [2019] ACTCA 36 at [99] is relevant. That is, that the principle:
[A]cknowledges the need for consistency in punishment while recognising that sentencing is individualised and offenders present with different subjective circumstances that must be taken into account.
39․Here, the co-offender seemingly had a more serious role in the offending, and he was younger than Mr Wolter, both of which are relevant distinctions. Further, Mr Wolter has recently demonstrated significant progress in rehabilitation, which has included some four months in residential rehabilitation, and there would be disruption to that rehabilitation by a return to custody (see below at [50]).
40․As will become apparent from the orders on resentence, Mr Wolter will serve less full-time custody than his co-offender, but will be subject to the deterrent effect of a longer period of imprisonment. That term will be less than that originally imposed on Mr Wolter, with this reflective of the lower term imposed on the co-offender. The approach to be taken reflects the application of parity as it arises in the circumstances of this resentence exercise.
Consideration
41․It is necessary that, as the prosecution submitted, the seriousness of the offending is recognised by the Court on resentencing. It is clear that no penalty other than imprisonment is appropriate in relation to all offences.
42․The aggravated burglary offending involved entry to an unoccupied apartment premises with some damage caused on entry. There were multiple vehicles entered into within the carpark, with several vehicles damaged. The use of a tool to enter suggests a level of planning. The owners of the carpark and the vehicles inevitably experienced financial implications and inconvenience, as well as the concern of their security being violated. As found at the original sentence, it was a “relatively unremarkable version of this serious offence”: DPP v Wolter (unreported), 11.
43․The victims of the deception charges likely experienced similar impacts. The amounts of money involved though were, while not negligible, not significant. The number of transactions involved makes the first offence more serious. As found at the original sentence, the offending “was not a particularly organised or professional operation and really an example of Mr Wolter taking advantage of the credit cards he found in the wallets that had been stolen”: DPP v Wolter (unreported), 12.
44․As to the driving while disqualified, the concerning aspect to this offending, as originally observed, is that it was “contumacious” offending: DPP v Wolter (unreported), 13. A strongly deterrent sentence, and one that reflects appropriate punishment is warranted. There were though no aggravating features to offending of this type, such as the manner of driving or the purpose of committing further offences.
45․The prosecution further submitted that it is appropriate to recognise that Mr Wolter’s rehabilitative efforts while on the treatment order were marred by relapses and poor engagement with the program. I did not understand this to be a submission that additional punishment was warranted for the non-compliance, but rather, analogous to a situation of resentence following the breach of a suspended term of imprisonment, the Court is to recognise that the “trust reposed in an offender, by permitting him or her to be in the community … is eroded”: R v Ogilvie (No 2) [2016] ACTSC 265, [30].
46․In essence, the Court is to have a level of hesitation in affording Mr Wolter further opportunity with a community based order, having regard to the extent and form of
non-compliance with the treatment order. It is, as the prosecution submitted, appropriate that structured supervision continue to form an important part of the sentence order. Mr Wolter’s intention to remain in Goulburn is not an impediment to a supervision component to the order as a transfer request can be facilitated by ACT and NSW Community Corrections.47․In concluding that there be further supervision, it is also relevant to consider the recent circumstances that led to Mr Wolter being discharged from the transitional program. In and of itself those circumstances might not be of significance. However, this is of concern as the original sentence decision provides that Mr Wolter was previously exited from the Arcadia House program in 2015 for smoking cigarettes.
48․While the use of such a substance is far from the level of concern as to his other history of substance use, the concern that his rehabilitation programs have as to such use gives pause to the prospects of rehabilitation. Mr Wolter is someone who has had repeated opportunities to engage in rehabilitation, and with community based orders, and there has not been, at this stage, sustained and permanent rehabilitation.
49․I would like to have the optimism that the submissions made on behalf of Mr Wolter provide. That is, that his circumstances “serve as a beacon of hope for those struggling with addiction … [that] a path to recovery from addiction and a life free from crime is achievable with genuine commitment and the right support system”.
50․Mr Wolter’s apparent previous inability to sustain long-term rehabilitation, and the most recent incident, give pause to that optimism. But I am satisfied that Mr Wolter’s extent of progress towards rehabilitation is such that a return to full-time imprisonment at this time would only be of such disruption to his rehabilitation progress that it would ultimately be contrary to achieving community protection.
51․And so, with a level of hesitation, I have concluded it is appropriate that Mr Wolter have an opportunity to continue on a community based pathway of rehabilitation, with supervision. Such an outcome is what gives best effect to all of the purposes of sentencing provided by s 7 of the Sentencing Act.
52․I have given consideration as to whether it is appropriate to include in the order that Mr Wolter complete community service. I have decided against this given his valid intention to avoid negative peer associates in Canberra. Mr Wolter is also not in a position to meet any financial penalties.
53․It is appropriate though that there be a specific condition in the supervision order for the purposes of solidifying his gains in rehabilitation. This will extend to a focus on securing employment, which is understandably difficult for him given his criminal history, but the absence of employment remains a criminogenic risk as it did at the time of the original sentence proceeding.
54․It is otherwise appropriate that in determining the appropriate sentence, the totality principle is applied.
Orders
55․For those reasons the following orders are made:
(1)The cancellation of the Drug and Alcohol Treatment Order on 15 December 2023 be confirmed.
(2)The conviction of Dylan Wolter of aggravated burglary (CAN 5797/2022) be confirmed and he be sentenced to 20 months imprisonment, reduced from 25 months on account of the plea of guilty, to commence on 2 September 2023 and end on 1 May 2025.
(3)The conviction of Dylan Wolter of obtain property by deception (CAN 11564/2022) be confirmed and he be sentenced to 6 months imprisonment, reduced from 225 days on account of the plea of guilty, to commence on 2 May 2025 and end on 1 November 2025.
(4)The conviction of Dylan Wolter of obtain property by deception (CAN 12400/2022) be confirmed and he be sentenced to 4 months imprisonment, reduced from 5 months on account of the plea of guilty, to commence on 2 August 2025 and end on 1 December 2025.
(5)The conviction of Dylan Wolter of obtain property by deception (CAN 12401/2022) be confirmed and he be sentenced to 4 months imprisonment, reduced from 5 months on account of the plea of guilty, to commence on 2 October 2025 and end on 1 February 2026.
(6)The conviction of Dylan Wolter of drive while disqualified (CAN 11567/2022) be confirmed and he be sentenced to 6 months imprisonment, reduced from 7 months 15 days on account of the plea of guilty, to commence on 2 February 2026 and end on 1 August 2026.
(7)The total term of 2 years 11 months imprisonment be suspended from today, 30 May 2024, until the end of the sentence on 1 August 2026.
(8)Dylan Wolter be required to sign an undertaking to comply with the offender’s good behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from today, 30 May 2024, for a period of 2 years 2 months 3 days until 1 August 2026 with the following additional probation, rehabilitation program and supervision conditions:
(a)That he accept the supervision of the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him consider appropriate and obey all reasonable directions of the person supervising him;
(b)That he participate in any program of treatment or rehabilitation for drug and/or alcohol as directed by the person supervising him; and
(c)That he engage in vocational training or programs for the purposes of securing employment or obtaining employment during the period under which he is subject to supervision.
(9)It be directed that Dylan Wolter report to the ACT Corrections by 4:00pm Friday 31 May 2024
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 21 January 2025 |
Schedule: Transcript of reasons of Refshauge AJ dated 9 June 2023
When considering sentencing an offender who has a drug or alcohol dependency, it is important to keep in mind the objectives that the legislature had for the drug and alcohol treatment orders, 'treatment orders', inserted by section 12A and other provisions into the Crimes (Sentencing) Act 2005 (ACT), 'Sentencing Act', in 2019. The explanatory statement to the Sentencing (Drug and Alcohol Treatment Orders) Legislation Amendment Bill 2019 (ACT) set out by way of background that:
Treatment orders deal with offences that relate to serious drug and alcohol use. They provide a unique response to a group of high risk and high need offenders who have serious issues with drug and/or alcohol use. They aim to achieve long-term behavioural change by taking a problem-solving approach to dealing with an offender’s behaviour, and support the development of a pro-social lifestyle. Treatment orders provide targeted and structured health and justice interventions while holding the person accountable for their offences.
An ACT treatment order will help to address five justice system issues: recidivism; community safety; incarceration rates; reduce demand for alcohol and other drugs (demand reduction) (for example, supporting people to reduce harmful drug use and improve health outcomes); and social inclusion.
It is then noted that such orders have been operating in other Australian and international jurisdictions. A brief history is set out in R v Antonovic (No 3). As the explanatory statement adds, they have had 'clear benefits for offenders, their families, and the wider community.'
Now appearing for sentence is Dylan Wolter, who has a drug dependency and has asked that a treatment order be made for him to serve any sentence of imprisonment to be imposed for five offences to which he has pleaded guilty. These offences are aggravated burglary, three offences of obtaining property by deception and driving as a disqualified driver as a repeat offender.
At sentence, the prosecution was very competently and helpfully represented by Mr C Wanigaratne. He tendered without objection the prosecution tender bundle. It contained the prescribed cover sheet with a helpful summary of important information, the committal and transfer documents, a statement of facts and Mr Wolter's criminal history.
As Mr Wolter had sought that a treatment order be made, the court had directed the preparation of a drug and alcohol treatment suitability assessment that of alcohol and drug services, namely a drug and alcohol sentencing list suitability assessment report dated 9 May 2023 was also included in the prosecution tender bundle.
Mr Wanigaratne also tendered without objection a USB stick with the CCTV footage relating to the aggravated burglary offence. The suitability assessment of ACT Corrective Services, namely the drug and alcohol treatment assessment dated 9 May 2023, was not included in the tender bundle but was subsequently admitted without objection.
Mr T Taylor, who appeared very capably and thoughtfully for Mr Wolter, tendered without objection a tender bundle for Mr Wolter. It included a letter dated 16 May 2023 from his mother, a report dated 8 April 2021 from Dr Glen Smith, consultant psychiatrist, an email chain of 18 May 2023 between Mr Taylor and the Justice Housing Program team, a letter dated June 2023 from the Justice Housing Program, and a further email chain dated 1 to 2 June 2023 between Mr Taylor and the Justice Housing Program team.
None of the contents of the above evidence was challenged. Mr Taylor provided helpful written submissions and both counsel made brief but incisive oral submissions, including respectfully engaging in debate with the court and answering its questions. From this material, the following findings are made.
The Facts
On 9 May 2022 at about 1.09 am, very early in the morning, Mr Wolter and a co offender entered the secure car park of a multilevel apartment complex in the Kingston Foreshore area, ACT. They forced their way in through the - though the evidence is that they used a tool they brought with them to force the lock. There may have been some damage but it does not appear to have been very substantial.
Once inside, they looked through the windows of a number of cars obviously looking for property to steal. They did manage to break into a number of cars and remove items of property, though the details of what property and its value was very limited in the evidence. It is clear, however, that they did remove items of property which they were seen carrying out but the details of which were not in the evidence. They then left the complex at 2.36 am, taking with them the property that they had stolen.
Later the next day, the building manager appears to have called the police at 1.25 pm, advising that a number of cars in the car park had been broken into by Mr Wolter and his co offender. Police on arrival viewed CCTV footage. They noticed fingerprints on the rear passenger window of one vehicle whose window they had smashed and request AFP forensics to assist.
The crime scene examiners found blood and fingerprints on another car, as well as the fingerprint that the police had initially found. Subsequent analysis showed that the blood and fingerprints were those of Mr Wolter. Comparing the CCTV footage with footage lawfully held on police indices also identified Mr Wolter as one of the burglars. These were the facts that led to Mr Wolter being charged with aggravated burglary, the circumstance of aggravation being that he was in company.
On 4 November 2022, some unidentified person broke into a motor vehicle parked at a residence and a wallet and contents were stolen. Two days later on 5 November 2022, a credit card from that wallet was used to purchase various items at a convenience store in Casey, ACT. There were six transactions between 6.17 and 6.20 am where the credit card was used to purchase cigarettes. The transactions were for a total of $425.43. Later between 6.50 and 6.51 am, two further transactions were made with the same credit card and for a total of $293.70 at a service station in Nicholls, ACT.
The owner of the credit card was notified by his bank about the unauthorised transactions and went to the Casey store where he spoke to the employee who gave him a description of Mr Wolter. He reported the dealings to police, noting he had not authorised them. Police obtained CCTV footage from both the retail outlets at which the unauthorised transactions had been made and that led to Mr Wolter being identified. These were the facts that were used as a basis for the first charge of obtaining property by deception, a rolled-up charge for the eight transactions.
Later that day, there was a break-in of a car at a residence and the owner's wallet stolen. It contained at least one credit card. When the owner checked on her phone, the card had been used at a convenience store at a service station in Gungahlin, ACT, to purchase items of $160. The owner reported the theft to police. Inspection by them of CCTV footage from the service station again showed Mr Wolter inside the store making the unauthorised transactions. These facts led to the second count of obtaining property by deception.
On 13 November 2022, a woman drove her car to work and noticed that the front passenger side window had been smashed and her wallet stolen. It included a credit card. That card was used earlier in the day for two transactions at a supermarket in Belconnen. The total of the unauthorised transactions was $116.95.
The owner reported the theft and transactions to police, who obtained the CCTV footage from the supermarket. It also showed Mr Wolter in the store. These were the facts of the third count of obtaining property by deception, again a rolled-up count. There's no evidence to show that Mr Wolter was the person who stole the wallets from these three motor vehicles.
Police on patrol on 22 November 2022 noticed at 4.30 pm a white BMW motor vehicle outside a building in Gungahlin. They activated the emergency lights on their motor vehicle, causing the motor vehicle to stop. Police recognised Mr Wolter as the driver. He was arrested on that day and refused police bail. Inside the motor vehicle were found a number of items that related to the earlier charges of obtaining property by deception.
On 15 October 2015, Mr Wolter had been disqualified from holding or obtaining a driver licence for eight years; R v Wolter (No 3). That disqualification would expire on 15 October 2023. Since then, however, including after the current offences had been committed, he had been further disqualified from holding a driver licence for various periods.
It appears from his criminal record that for none of these further disqualifications was any order made under section 69 of the Road Transport (General) Act 1999 (ACT) to make them concurrent so they would have been cumulative. That appears to extend the disqualification for some seven years and four months which would then last until approximately 15 October 2031. These facts were those that led to the charge of driving whilst disqualified as a repeat offender.
The Proceedings
On 9 June 2022, an information was laid charging Mr Wolter with the aggravated burglary offence. It was returnable on 4 August 2022 and he appeared in the ACT Magistrates Court. It appears that he appeared for himself and an adjournment was granted. It also seems that he was granted bail. At the next mention, he entered a plea of not guilty to the charge and the proceedings were adjourned a number of times.
On 21 October 2027(sic), Mr Taylor appeared for him. The matter was adjourned twice more. He then appeared on 23 November 2023 when he was charged with the first one the charge of obtaining property by deception and the charge of driving whilst disqualified as a repeat offender. He pleaded not guilty to both offences. Bail was refused and he was remanded in custody. The charges were further adjourned and he was remanded in custody. A brief of evidence was then prepared.
On 12 January 2023, he was charged with the other two offences of obtaining property by deception but entered no plea. He remained in custody. On 9 February 2023, he entered a plea of guilty to the charge of aggravated burglary. On 15 February 2023, he entered a plea of guilty to the second and third charges of obtaining property by deception and the charge of driving whilst disqualified as a repeat offender and the proceedings were adjourned to 2 March 2023. He remained in custody.
On 2 March 2023, he entered a plea of guilty to the first charge of obtaining property by deception and was committed on all the charges to this court for sentence and the charge of drive whilst disqualified as a repeat offender was transferred as a related charge. It was noted that he was to be assessed for eligibility for a treatment order.
He appeared in this court on 10 March 2023 and following a finding that he was eligible for a suitability assessment to be prepared, such assessments were ordered and a date of sentence listed for 19 March 2023. That date was later changed to 2 June 2023.
On 2 June 2023, the sentence proceeded and Mr Wolter was released on bail until today. Accordingly, he has been in custody for 193 days, that is, six months and 12 days. This period will be taken into account on sentence under section 65 of the Sentencing Act.
The Offences
Having founded the facts that led to the charges to which Mr Wolter has pleaded guilty, an essential step in the process of sentencing him, there are other factors mandated for the court's consideration; section 33(1) of the Sentencing Act. First mentioned is the nature and circumstance of each offence; section 33(1)(a) of the Sentencing Act. This is an assessment of the objective seriousness of the offence. There are two further steps, the first, the facts, having been identified.
The next issue is the maximum penalty. This is also an essential consideration as the High Court has made this clear in Markarian v R, saying:
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
The final issue is to assess the particular circumstances of each offence to identify the aggravating or mitigating factors in the particular way that the actual offence or offences for which a sentence has to be imposed has been carried out. This comes from the consideration of what courts over time have identified as the relevant factors and how they help assess the seriousness of the offence actually committed here. In this, there is also a consideration of some of what is also required to be considered, namely, current sentencing practice as referred to in section 33(1)(za) of the Sentencing Act.
Aggravated burglary is a crime under section 312 of the Criminal Code 2002 (ACT) for which the legislature has set a maximum penalty of 20 years' imprisonment or a fine of $320,000 or both. It is thus a serious offence and should be treated accordingly. It is, of course, a burglary aggravated by particular features, in this case, the fact that there was more than one offender. Mr Wolter went to the car park with a co offender.
The consideration therefore in relation to burglary is also relevant. Those considerations have been summarised in R v McHughes (No 3) following careful consideration of a number of decisions. So far as relevant, the factors from that summary are as follows:
The nature of the property the subject of the aggravated burglary is relevant. Here it was the car park to a block of apartments. This is somewhat more serious than a commercial property but not as serious as an actual residence such as where a house or an apartment itself had been entered by Mr Wolter and his co offender as trespassers seeking to steal or commit some other indictable offence.
There was some damage committed on entry but from the description in the evidence, not of great value. When in the car park, however, it appears that 'several' cars have been damaged when Mr Wolter and his co offender broke into them. This makes the offence somewhat more serious.
There were no occupants in the car park at the time and it seems less than likely that they would be at that time. There was certainly no confrontation.
The motivation was, it appeared, that he needed money for drugs. This was asserted by him to the author of the alcohol and drug service suitability assessment. It was not challenged. He was also using illicit drugs at the time.
There is no evidence of any particular premeditation or planning or any kind of organisation in the aggravated burglary. The use of a tool to gain entry shows that it was not purely opportunistic.
Further, there was no evidence that Mr Wolter or the co offender had committed any offence there before or had targeted the premises.
As there were no occupants directly affected by the trespass which was an essential element of the aggravated burglary, there was no question of trauma, though it can be expected that the owners of the cars that Mr Wolter and his co offender entered or tried to enter, damaging the cars, suffered at least some cost and inconvenience. There was no suggestion, however, of serious or high level damage.
In respect particularly of the aggravated burglary, it is relevant that only one circumstance of aggravation, that he was in company, was involved here, but also that there was only one co offender; R v Elphick. All in all, it was a serious offence with some elements of aggravating seriousness but a relatively unremarkable version of this serious offence itself.
Obtaining property by deception is prohibited by section 326 of the Criminal Code and attracts a maximum penalty of 10 years' imprisonment or a fine of $160,000 or both. It is thus, by the maximum penalty, a serious offence but it must be recognised that it covers a very wide range of offending from taking property worth hundreds, perhaps millions of dollars, or even millions of thousands of dollars, to quite trivial amounts. Accordingly, the amount taken is a most significant factor. In this case, the amounts range from $15.95 to $160.80.
The first and third offences constitute a rolled-up count, that is, individual transactions were all included in the one charge. Thus, as noted above, there were eight transactions in the first charge of amounts that ranged but which totalled the relatively significant sum of $719.13, although still not large in the context of the larger amounts for which this offence has also been charged in other circumstances. The third charge was one where there were two transactions which totalled $116.50.
A rolled-up count is a convenient way of dealing with related transactions. They do provide a significant benefit to an offender as, for example, in the first case, Mr Wolter faced one charge instead of eight charges and in the third, one charge instead of the two. The maximum penalty he faces is not eight or 10 charges but one.
The principles applying to the sentencing for rolled-up charges has been discussed carefully in R v Forrest (No 2). The principles were helpfully summarised in R v John as follows:
For sentencing purposes, the rolled up count is one charge and the sentence may not exceed the maximum penalty for the offence charged;
Nevertheless, the criminality encompassed within the count is greater than were the count to be constituted by only one offence;
The sentence is not necessarily, and perhaps not usually, the sum of the sentences that would be imposed for the offences comprising the count, though in an appropriate case it may be; and
The fact that the count is a rolled up count may have a bearing on the application of the relevant principles as to accumulation or concurrency.
The offence requires courts to address it seriously however, because of the ease with which it can nowadays be committed. As was said in R v Dowling (No 2):
This offence is most frequently committed following the theft of a credit card, as is the case here, where the credit card is then used to purchase goods or services. The ability to commit such offences has been enhanced by the capacity now merely to tap the credit card on an electronic terminal, without the retailer or service provider needing to match the name on the card, or even the gender, with the user. This, perhaps, makes the offence more serious so far as sentencing is concerned. It is, of course, a version of dishonest appropriation of property, like theft. The main aggravating feature of such offences is the amount involved: see Law v Ilievski and R v Elphick.
While there were many cases in the first, one in the second and two third credit cards stolen, this was not a particularly organised or professional operation and really an example of Mr Wolter taking advantage of the credit cards he found in the wallets that had been stolen.
Driving whilst disqualified as a repeat offender is proscribed by section 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) for which Mr Wolter is liable to a maximum penalty of 12 months' imprisonment or a fine of $16,000 or both. In addition, there is an automatic disqualification from holding or obtaining a driver licence for two years or such longer period as the court may order.
The offence is a relatively serious one because the disqualification is a method of sanctioning those who undermine the driver licensing system by failing to respect the consequence that the privilege of being able to drive has been withdrawn. Such disqualification is important for in itself, it is imposed for a breach of the road rules which are designed to maximise the safety of road users and pedestrians and others using or near to roads on which motor vehicles are driven.
The approach has been discussed carefully in Cotter v Corvisy. There the court noted that a relevant factor was whether the driving without a valid licence was contumacious. There, that was defined as:
An act became contumacious, not merely willful, when the person doing it knows that it is prohibited and has no reasonable excuse for doing it or no reasonable belief that it can be excused.
That is the situation here. Mr Wolter has a history of driving whilst disqualified. He did so on 19 May 2018 and twice on 5 July 2021, though he is not dealt with in the courts for the latter two offences until all of these offences had been committed. He did, however, also drive whilst his licence was suspended on 16 August 2013.
While the disqualification to which he was subject at the time of the current offences was imposed on 15 October 2015, it was for a considerable period, namely, eight years. There was no reasonable excuse for driving at the time. He knew from his earlier offences on 19 May 2018 that he was prohibited from doing so and the likely penalty for the offence as he had been imprisoned on for two months on that occasion.
There were, however, no problems with the manner of his driving or that he had driven for the purpose of committing further offences; see for example R v Gray. The driving was not at the end or soon after the disqualification; R v Connors.
Subjective Circumstances
The second essentially important factor in determining the sentence to be imposed on an offender are the personal circumstances of the offender. Several of the paragraphs in section 33(1) of the Sentencing Act refer to these matters.
Mr Wolter was sentenced for a serious offence of culpable driving causing death in 2015. At that time, his personal circumstances were set out; R v Wolter. That has been helpful in addition to the comprehensive and professionally prepared suitability assessment.
Mr Wolter was born 30 years ago, the older of the two children of his parents. He is of Aboriginal ancestry, though it is not clear how much he has engaged with his cultural identity. He had a generally positive childhood and is close to his parents, very close to his mother more than to his father. His parents are still married. He has not, however, spoken to his younger sister for 10 years as they do not get along. He is closer to his father than he was in the past as his father disapproved of his behaviour which led him to getting into trouble.
His family moved around a lot, every two or three years, as his parents managed hotels in regional areas. This led him to attending three different primary schools and two different high schools. While he did not mind this, he now feels that it may have caused him difficulty in maintaining friendships as an adult. Most of his current friends are people with whom he used drugs. He does, however, see this and describes it here now as 'a waste of life' and he expresses the need to change.
He explained to the author of the ACT Corrective Services suitability assessment that he was suspended often for behavioural issues at school. This problematic behaviour seems likely to be related to him starting to use illicit drugs in his mid-teens. He completed his formal education at Year 10. He did, however, complete a certificate III in hospitality. He then commenced an apprenticeship as a chef and completed a certificate in restaurant management. He maintained regular employment until December 2014 when he lost his job through absenteeism and his chaotic lifestyle.
On 17 September 2018, however, he was found suitable for engagement in the Worldview program. This is a program that helps indigenous youth to achieve a balanced and meaningful life through, inter alia, employment, and supporting placements with external employers. He commenced work in a warehouse setting and was eventually promoted to floor manager in 2019. He was said to be enthusiastic about his employment opportunities and acquired new skills and responsibilities.
It is to be noted that he was not charged with any offences committed between his release from prison on 3 September 2018 to 5 July 2021.
Unfortunately, on 13 November 2019 he was involved in a workshop accident in which he sustained a major injury to his foot. It required multiple surgeries. He has, however, received a significant lump sum compensation payment. He could not work for about two years after the accident. He engaged in psychological therapy. The report from Dr Smith was prepared for his compensation claim.
Mr Wolter has had a number of relationships over some years. He now has a partner with whom he has had a 12 month relationship and who, with his mother and grandfather, are his main supports. Unfortunately, his main social contacts are antisocial people, often fellow drug users. He asserts that they contributed to his use of drugs and offending.
Until recently, Mr Wolter's accommodation was problematic. He wanted to live with his partner but that was impractical. He did not want to return home with his parents as his sister, with whom he does not get along, lives there. He has now, however, obtained a placement in the Justice Housing Program and moved into a place provided by the program upon the grant of bail to him on 2 June 2023.
Mr Wolter has experienced some mental health challenges. He has a history of anxiety and depression, especially in his teenage years. They worsened after his workplace accident. He was diagnosed as likely suffering from post-traumatic stress disorder as a result of the accident.
His physical health is now, it appears, a result of the workplace accident only. He needs further orthopaedic treatment but there are long delays in the public health system. While the recovery after the accident is significant, he does not appear to have major disabilities, though there are ongoing medical issues with his foot.
Mr Wolter started using drugs in his mid-teens. He first used heroin when he was 15 years old. Prior to entering custody, he has been smoking one to three grams daily since he was 16 years old. He is not using heroin presently. He began consuming methamphetamine when he was 18 or 19 years old. Prior to entering custody, he smoked half a gram to a gram a day from about age 20 years. He also denies any current use.
He started smoking cigarettes when he was 13 years old, smoking up to 25 cigarettes a day. His first cigarette is about five minutes after he wakes up.
Mr Wolter has had some alcohol, tobacco and other drug treatment. As his mother noted in her letter to the court, he had mental health support and drug counselling while in prison following the sentence for the offence of culpable driving causing death.
In the community, he has completed multiple hours of counselling and psychological support. He attended counselling with Directions Health Services in 2015 and in April that year, entered Arcadia House. After three weeks, he was discharged for smoking cigarettes.
After his last release from custody, he felt isolated and institutionalised and as a result, he engaged with alcohol, tobacco and other drug treatment which was initially challenging but ultimately helpful. He reported accessing a methadone program upon first entering custody, stating that he stayed on the program for five years. He did have a dose after his accident, leading him to 'dabbling' in drugs again. He is currently receiving Buvidal treatment.
Mr Wolter has a significant but not major criminal history. He has 26 offences on his record, which is fewer than many of those who appear in this court. The offences have occurred in basically two periods. His first offence was committed on 29 November 2011. He continued to offend periodically until 19 May 2015. There was then a break of nearly three years, much of it spent in prison, until he had his next offence on 30 January 2018.
He offended again until 19 May 2018 but then did not offend till sometime after his workplace accident. The first offence in this period was committed on 5 July 2021. He has committed offences after periods of imprisonment since then. His offending has generally revolved around dishonesty and driving offences. He has nine offences of minor theft and one offence of theft on his record, an offence of possessing stolen property and three offences of obtaining property by deception, and riding in or driving a motor vehicle without consent.
His most serious offence in this earlier period was an offence of culpable driving causing death. He was sentenced to prison for three years. While the other offences for which he is currently to be sentenced have been committed by him before, requiring a more severe sentence, he has no offence as serious, at least judged by the maximum penalty, as the aggravated robbery on his record.
Mr Wolter has breached community based orders in the past. He breached a good behaviour order made in 2019. He breached his parole in 2017 to 2019 on several occasions for illicit drug use and failing to report for supervision. His behaviour in custody on this occasion has been considered satisfactory with no disciplinary action or even officer warnings recorded.
Mr Wolter engaged well with the authors of the suitability assessments. He was described as 'cooperative', 'insightful, motivated, friendly, and truly focused,' and appears motivated to make positive changes in his life and seek professional help to address his problematic use of illicit substances.
Mr Wolter agreed with the statement of facts and took full responsibility for his actions. He expressed for regret for them. He expressed that he was sorry for the victims of his offending and how they may have been impacted by it.
Current Sentencing Practice
As noted above, the court is required to take into account current sentencing practice so far as it knows it; section 33(1)(za) of the Sentencing Act. Some of that has been addressed earlier in assessing the nature and circumstances of the offending. In order, however, to respect the important sentencing principle of consistency among sentences, it is important to know the sentences currently being imposed.
The ACT is fortunate to have the ACT sentencing database to record many of the sentences imposed. There are, however, many challenges and limitations with the database; see for example R v Smith. Nevertheless, it can provide some useful information. Thus, in an important and widely cited decision of R v Elphick, the court commented relevantly:
The limitations of sentencing statistics are well-known. However, for what they are worth, sentencing statistics show that, in relation to sentences imposed by the Supreme Court, when the penalty that is imposed is imprisonment:
(a)the offence of aggravated burglary usually results in a sentence of between 18 months’ and three years and six months’ imprisonment;
….
(d)the offence of obtaining property by deception usually results in a sentence of six to 12 months’ imprisonment;
…
(h)the offence of drive while disqualified usually results in a sentence of six months’ imprisonment.
It can be done perhaps more effectively by considering comparable cases. This, however, is not always easy to do. Mr Taylor, however, provided a helpful table of decisions of the court for the offence of aggravated burglary. He provided one set which involved residential premises with all but one an underground car park to apartment complexes. The other set were offences at commercial premises. They do not seem particularly comparable and will not need to be further considered.
For the residential premises, excluding that in which the property was not a car park, no further consideration for the residential premises which did not - where the property was not a car park no further consideration need be given to it, especially as the offender in that case was a minor where there are other considerations.
For the remainder, R v Muell, R v Bright, R v BC, R v Novakovic (aka Noland), and R v Elphick, the sentences range from 13 months' and 15 days' to two years' and two months' imprisonment. Care has been given to the similarities and differences between these various decisions but they have been helpful in the consideration necessary and have been taken into account.
Consideration
The matters that have been considered above are the primary factors that must be considered. From among these there are matters that point in different directions. The wanton damage to motor vehicles to gain entry and steal goods from them and the explanation for his reoffending where the rehabilitation that Mr Wolter has achieved was derailed by an accident at work for which he was not responsible, for example, point in opposite directions.
The instinctive synthesis which is the sentence that must be imposed is constituted by bringing these factors together, balancing them and coming to a single penalty for each of the offences. The difficult task is made somewhat easier by the identification of the purposes for which the sentence is to be imposed. These purposes are found in section 7 of the Sentencing Act.
The serious invasion of the right to safety and security even where their cars are parked requires that there be some element of punishment in the sentence for the aggravated robbery. The taking of property from people, especially in difficult economic times, is also a matter which goes to the security of the community. Such a sentence will also serve to denounce the offending which is a significant breach of the norms of the community.
A severe sentence may also have the effect of deterring others in the community who may be minded to commit such offences themselves. There is debate about that and it is not clear that sentencing can be effective as general deterrence; Lloyd v R.
The sentence must, of course, make Mr Wolter accountable for his actions and it is welcome that he has accepted responsibility for that is the fact. He is the one who is responsible for that offending.
A sentence may also deter him from committing such offences in the future, particularly as this is a serious escalation of what is some less serious, but still significant and reprehensible, conduct in the past. To arrest that escalation would be of value to the community. Nevertheless, Mr Wolter has been able in the past to address the drug use which is a major criminogenic risk for him and the community.
If a more permanent rehabilitation can be achieved, it will be a better protection for all the community, which is not only one of the statutorily specified purposes of sentencing but also the overall purpose of the criminal law. Further, to impose a sentence that is just and adequate, the factors set out in section 33 of the Sentencing Act must be carefully considered.
The nature and circumstances of the offence have already been set out in the findings of facts constituting the offending and in the assessment of the objective seriousness. Mr Wolter's personal circumstances have also been considered as also found.
Mr Wolter pleaded guilty in the ACT Magistrates Court for all except the second and third offences of obtaining property by deception. He first entered a plea of not guilty and the prosecution were required to prepare a brief of evidence. Nevertheless, it was in the Magistrates Court that the plea was entered before a hearing date was reached. Thus, a discount should be provided; section 35 of the Sentencing Act. The utilitarian value of the plea is a factor to be considered and this will be greater for the latter two offences.
The case against Mr Wolter was strong. Certainly against the case against him of driving whilst disqualified as a repeat offender was overwhelming. Thus, the discount should not be significant, at least for that offence. While the evidence is very strong for the other offences, it is not clear that it is overwhelming.
The fact that Mr Wolter was introduced to drugs at an early age before he could give an informed consent is relevant. It does not mitigate the offending but does reduce his moral culpability; see Douglas v R. Similarly, the failure of his earlier attempts and the temporary successful rehabilitation does not mean that rehabilitation does not still have a significant part to play in the sentence. It is notorious that a pernicious matter such as drug dependency can take many efforts to address and failures do not deny further attempts to be offered so long as there is a rational reason for that; Saga v Reid and Collett.
Mr Wolter has expressed remorse and some sympathy with the victims, an insight into both his offending and the harm done to the victims. The remorse is confirmed by his pleas of guilty, though some were not at the earliest opportunity. The period of presentence custody must also be taken into account.
Having regard to the seriousness of the offences and all the other relevant factors, including Mr Wolter's personal circumstances, and having considered all the alternatives, it is clear that no sentence but a sentence of imprisonment must be imposed; section 10 of the Sentencing Act.
There are, however, five offences for which a sentence must be imposed. Each of them must be subject to a just and adequate sentence in themselves, then the factors that may justify some concurrency between them must be considered. Thus, where there is a course of conduct, that may justify a degree of concurrency. That does not really apply here. Each offence was separate and though there was an ongoing level of criminality, it was not really a course of conduct. Where there are common elements also, this may require concurrency but again, this does not appear very clearly here.
Finally, however, the important sentencing principal or totality must be respected and the court has had what is sometimes called 'the last look' to see that whole of the sentence properly reflects the total of the criminality and no more than that and that the sentence will not be crushing but will leave open the hope of a useful life after any custodial part of the sentence has been served, see Sampson v R, and the achievement of his goals when released may be possible.
If this requires a level of concurrency, it may seem lenient but is an expression of justice. I must show that the sentence is fair to the offender, the victims and to the community and properly balance all the considerations, including both seriousness of the offending and Mr Wolter's period of personal circumstances.
Mr Wolter, please stand. I convict you of aggravated burglary and I sentence you to 22 months' imprisonment to commence on 28 November 2022 and end on 27 September 2024.
I convict you of obtaining property by deception and sentence you to five months and 22 days' imprisonment to commence on 6 September 2024 and end on 27 February 2025. Had you not pleaded guilty, I would have sentenced you to seven months' imprisonment.
I convict you of the second count of obtaining property by deception and sentence you to five months' imprisonment to commence on 28 December 2024 and end on 27 May 2025. Had you not pleaded guilty, I would have sentenced you to six months' imprisonment.
I convict you of the third count of obtaining property by deception and sentence you to five months' imprisonment to commence on 28 March 2025 and end on 27 August 2025. Had you not pleaded guilty, I would have sentenced you to six months' imprisonment.
I convict you of driving whilst disqualified as a repeat offender and I sentence you to six months' imprisonment to commence on 28 May 2025 and end on 27 November 2025. Had you not pleaded guilty, I would have sentenced you to several months' imprisonment. I note that the offence requires an automatic driver licence disqualification and I determine under section 69 of the Road Transport (General) Act 1999 (ACT) that it commenced today, 9 June 2023.
That's a total sentence of three years, commencing on 28 November 2022 and ending on 27 November 2025. You may be seated.
Having sentenced Mr Wolter to three years' imprisonment, the next question is how that period should be served. In addition to fulltime custody, the Sentencing Act provides a number of options from a non-parole period to moderate the sentence through an intensive correction order or a treatment order and a suspended sentence with a good behaviour order.
Since Mr Wolter has sought a treatment order, that alternative should first be considered. There are two considerations here: is Mr Wolter eligible; if so,
is a treatment order suitable for him, including are there suitable arrangements for such an order to be administered.
The eligibility criteria is set out in sections 12A and 80S of the Sentencing Act. Those in 80S are really about suitability and suitable arrangements of administration of such an order. They can accordingly be addressed when the second consideration is addressed. As to the eligibility criteria in section 12A of the Sentencing Act, the following are the issues. In the first place, Mr Wolter has pleaded guilty to five offences, each of which are eligible offences.
For the primary offence, aggravated burglary, he has been sentenced to 22 months' imprisonment which is more than the minimum eligible period of imprisonment, namely 12 months, to which a treatment order can be made. Together with the other sentences for the other offences which are the associated offences, the total period of imprisonment is three years, less than the maximum eligible period, namely four years' imprisonment.
The suitability assessments of Alcohol and Drug Services assess him as likely to have a severe substance use disorder. This is confirmed by the diagnosis of Dr Smith who diagnosed him as having an opioid use disorder in 2021.
The description of his drug use in both suitability assessments and the report of Dr Smith are consistent with these opinions. It is also clearly consistent with the information contained in the letter that his mother wrote to the court. It can be accepted that Mr Wolter is dependent upon controlled drugs, namely heroin and methamphetamine.
Mr Wolter said that he was using these drugs at the time of his offending and that he needed the money for drugs. There was no challenge to this assertion. It can accordingly be accepted that the offending was substantially contributed to by his dependency.
Mr Wolter has lived all his life in Canberra and has not expressed an intention to move out of Canberra, so it can be accepted that he will be resident in Canberra for the whole of the term of any treatment order. Mr Wolter has also signed the prescribed form of consent to the making of a treatment order.
His mother has also confirmed that he has a strong wish to use a suitable alternative to turn his life around and to live a more acceptable lifestyle. In the consent form, he acknowledges that he has had a clear explanation of such an order and that the information is sufficient for him to make a balanced judgment about whether to consent to serving his imprisonment under such an order. This is confirmed by the report of his engagement with the authors of the suitability assessment where he is asked questions and had those questions answered, which answers he appears to have understood. Accordingly, Mr Wolter is eligible for a treatment order to be made for him to serve the sentence of imprisonment upon him.
Both suitability assessments have recommended that he is unsuitable for a treatment order. The bases for these recommendations was that he did not at that time have suitable accommodation available to him. While it is not a criterion specified in the Sentencing Act, it is not an effective administration of a treatment order for a participant not to have stable accommodation.
Since then, however, as noted above, he has accommodation within the Justice Housing Program which he has now taken up and he has found it to be satisfactory for him. Otherwise, the suitability assessments have identified that a treatment order would be beneficial and appropriate for him, especially given his prior ability to be abstinent for period of time.
The ACT Corrective Services suitability assessment suggests that there is an issue with his compliance with court based orders but in all the circumstances, it seems to me that that is unlikely to interfere with his compliance with the suitability assessment at this time.
The suitability assessments have provided details of the appropriate program of treatment. He has also been accepted into the Matrix Program of Karralika Programs Inc, a suitable treatment program for him.
Accordingly, he is suitable for a treatment order to be made for service of his term of imprisonment and there are suitable arrangements for administration of the order. As a result, the court finds that Mr Wolter is eligible and suitable for a treatment order to be made and that there are appropriate arrangements for administration of such an order. There are no matters under table 46K of the Sentencing Act that would make it inappropriate for a treatment order to be made for him.
Finally, the sentence of imprisonment has been partially served by 193 days from 28 November 2022 until now, and so will be partially suspended and section 80W of the Sentencing Act requires a sentence of imprisonment to be served by a treatment order to be fully suspended but that does not prevent a treatment order being made for the reasons set out in R v Crawford (No 1). A treatment order will accordingly be made.
Mr Wolter, please stand. I order:
(1) That a drug and alcohol treatment order under section 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for you in respect of the primary offence of aggravated burglary of which you have been convicted and for which you have been sentenced to 22 months' imprisonment.
(2) The order is extended to the offences of obtaining property by deception three times and driving whilst disqualified as a repeat offender of which you have been also convicted and for which you have sentenced and which are associated offences of the primary offence. I note that those convictions and sentences imposed for the primary and associated offences have been recorded and are hereby incorporated into the drug and alcohol treatment order in the custodial part of the order.
(3) The drug and alcohol treatment order be for two years, five months and 19 days from today, 9 June 2023, to 27 November 2025.
(4) The treatment and supervision part of the drug and alcohol treatment order be for two years from today, 9 June 2023, until 8 June 2025.
(5) The custodial part of the drug and alcohol treatment order for the primary and associated offences be hereby suspended under section 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 9 June 2023, until 8 June 2025.
(6) Under section 80ZA of the Crimes (Sentencing) Act 2005 (ACT), you are required to sign an undertaking to comply with the offender's good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act 2005 from the day after the treatment and supervision part of the drug and alcohol treatment order ends, namely 9 June 2025, until the end of the total sentence, 27 November 2025, with a probation condition to go to you accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking, or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you, including as to alcohol and drug testing, counselling and treatment.
(7) For the treatment and supervision part of the drug and alcohol treatment order, the core conditions of the order set out in section 80Y of the Crimes (Sentence Administration) Act 2005 are hereby imposed.
(8) You are to reside at the Justice Housing Program residence and comply with the rules of the facility and obey all reasonable directions of the person in charge of the facility.
(9) You are directed to attend and complete the Matrix Day Program at Karralika Programs Inc and to comply with all the directions of the person in charge of the program and all the rules of the program and the facility. Should you leave or be discharged from the program be completing it, you are to report to ACT Corrective Services by 4.00 pm on the next business day with a view to having your drug and alcohol treatment order reviewed.
(10) You are to undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the treatment and supervision team and obey all reasonable directions of any member of that team about where you reside, with whom you associate and attendance from time to time.
(11) You are not to return a positive test sample under alcohol and drug testing and you are to comply with any directions of the court from time to time about attendance at court in person by electronic means.
(12) You are directed to sign a sealed copy of this order and an undertaking to comply with the order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this order is in force before you leave the court precincts today and you are directed to appear in person or by electronic means in court on Friday, 16 June 2023, at 11.30 am.
Mr Wolter, that's a lot words. You've been around the court, so you'll understand quite a lot of it and of course it's about you and what you did and so you understand most of that.
These are pretty bad offences and it's an escalation, as I said, of your offending before, but I'm satisfied that it's been substantially contributed to by your drug use and if you can address that, as well as your mental health issues, but they seem to be able to be managed, then you can expert to go back to that time when you were living a satisfactory and useful life and have the joy that that can bring and the satisfaction that it can bring. It will be better for you, it will be better for your family, it will be better for the community.
It can be tough though. You've had that experience and you've relapsed and you know that it is difficult. You will be a person with a dependency for all your life but as you go on and as you manage it better, it will become easier and easier and easier to manage it but it will be difficult.
As you go through the treatment process, you will overcome obstacles and that will make you stronger and it will become easier over time. It's really important though that you knuckle down and you commit to this and do it well because at the end of the day, the benefits are huge and that's what you need to focus on, the future, not the past and so on.
There are a few things that are absolutely essential. First of all, take this seriously. You'll be given a letter that sets out the details of how your program will work. Make sure that you read that carefully and understand. If you don’t understand it, you have very experienced case managers from Health and from Corrective Services who will be there to assist you. Their job is of course to ensure that you're doing the right thing, to be kind of supervising you in that sense, but they are there also to provide support, to help you find how you can get assistance if you need it, where you can get such assistance, and to talk with you about difficulties that you're having.
You will also see a lot of me. That might be a downside but you'll have to come in and you'll front me. I will support you if you're going well. I'll have to challenge you if you're not going well and sometimes I'll have to punish you if going well is really a breach of the order. That punishment will normally be just a formal one, points which represent a day in custody, but you don't have to spend a day in custody usually until you receive seven points, in which case, you then go in custody for seven days for a kind of reset. Most people who do that find that it can be beneficial, which is weird but it is true. It gives you a chance to think, to realise what you really want to do and come out and commit yourself and go better.
The second thing that's really important is to commit yourself to the program, to understand that this is what you want. It is an alternative to prison. Three years or the balance of three years, less than 193 days, is hanging over you. I don't say that to frighten you, but you're adult. You understand, you've been around. These are the consequences. You can choose this.
It's not a 'get out of jail free' card. It is an opportunity for you if you want to live a better life to do that. Commit yourself to it. And don’t breach any of the rules of the programs that you're doing. Don’t fail to keep in contact. Don’t use drugs. Don’t fail to attend your analysis, et cetera, et cetera.
If you do breach there are consequences. If, however, you are discharged from the program or if it gets difficult, don’t run away. Come and talk to us about it. Talk to your case managers. They won’t be judgmental. They will try to help you. Yes, of course they may say, 'That's wrong, you shouldn't do that,' and so on, but they will try to assist you.
Come into the court. Our focus is to try and get you through this process so that you can go back into the community drug free and crime free and be better for you, your family and the community. That's our aim, that's where we're focused. So come in. When you come in, despite the fact that I can talk under we cement, I'll give you the opportunity for you to say something and to speak to me and raise problems. That can be difficult in a public courtroom and therefore you might prefer to do it with your case managers. But there are things that I can do. Judges do have powers and there are possibilities. I'm not omnipotent but there are things that I can do and we have access to support services and so on which may be available to you.
The third thing that's really important is honesty. Be honest to your case managers. Be honest to the court of course. If you're dishonest to the court that can be perjury so that's an offence, but be honest to the people that are counselling you and supporting you at Matrix and thereafter. Really important. But also be honest with yourself. It's very easy to fool yourself.
If you've done something wrong you might feel ashamed and shame is a difficult emotion, but shame is also a good emotion because it sets the boundaries. You know you've done something wrong. Trying to minimise it to yourself saying, 'Oh, it doesn’t really matter. It was just a quick snort,' or a quick puff and whatever, no, no, no, it's wrong. Confess that to us and we may be able to help you.
I'm not saying we won’t punish you necessarily. Of course we will if it's really bad or it's continuing on or it's going, you know, badly from time to time, but if you confess it at least it means that you understand and are prepared to face the challenge that it gives you and you're prepared to go through with it.
So this is really a fantastic opportunity for you. Most of the people who have gone through this program and have graduated have not come back, not committed any further offences, gone on to be with their children, to grow up with them, to help them grow up, to get work, to be involved in the community and do good things for themselves and in many cases for others.
That's what’s there for you. Take that opportunity. I hope it works for you. I wish you luck with that but it will require really hard work on your part. It will be difficult along the way but I'm sure you've got the copy to do that. So good luck. You may be seated.
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