Director of Public Prosecutions v Wyatt

[2024] ACTSC 142

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Wyatt

Citation: 

[2024] ACTSC 142

Hearing Date: 

22 and 30 April 2024

Decision Date: 

3 May 2024

Before:

Christensen AJ

Decision: 

See [102].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – nature of the offence and aggravating factors – subjective circumstances – Bugmy principles – rehabilitation efforts while in custody – mental health – Verdins principle – available community supports – Drug and Alcohol Treatment Order imposed

Legislation Cited: 

Crimes (Sentencing) Act 2005 (ACT) ss 12A, 33, 35, 65, 80T

Criminal Code 2002 (ACT) ss 28, 310(b)

Cases Cited: 

Barrett v The Queen [2016] ACTCA 38

DPP v Smith [2024] ACTSC 99

KQE v DPP [2024] ACTCA 7

Mill v The Queen (1998) 166 CLR 59

R v Bugmy [2013] HCA 37; 249 CLR 571

R v Dugdale (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 15 August 2012)

R v Mason [2019] ACTSC 161

R v Newby [2022] ACTCA 20

R v Verdins [2007] VSCA 102; 16 VR 269

Parties: 

Director of Public Prosecutions ( Crown)

Scott Wyatt ( Offender)

Representation: 

Counsel

E Wren ( Crown)

E Wallis ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ACT ( Offender)

File Number:

SCC 23 of 2024

CHRISTENSEN AJ:

Introduction

1․Scott Wyatt is to be sentenced for an offence of aggravated robbery contrary to s 310(b) of the Criminal Code2002 (ACT) (Criminal Code). Mr Wyatt seeks an opportunity to be sentenced to a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

The Offence

2․The aggravated robbery occurred at about 4:10pm on Friday, 13 October 2023. Mr Wyatt entered the Australia Post store at Dickson. There were three female staff members working in the store.

3․One of the staff members saw that Mr Wyatt was wearing a face covering and a hooded jumper over his head. She became suspicious and asked the other staff members to watch him.

4․These staff members moved closer to Mr Wyatt, who by this stage was standing in front of a display shelf. Mr Wyatt picked up a book and placed it in a bag he was carrying. One of the staff members asked him if he was intending to pay for the item and he said that he had money and would pay for it.

5․Mr Wyatt is said to have then loitered for a period of time, before he approached the staff members and told them he wanted to buy some of the electronic goods that were in a locked display cupboard. Mr Wyatt was asked to wait at the opposite end of the store while they retrieved the items, and he did so.

6․The staff members returned to the counter with the items and Mr Wyatt approached. The items were scanned and put on the counter. One of the staff members stood directly opposite to Mr Wyatt and handed him the items after they were scanned. Among the items scanned was a Telstra Vivo Mobile phone, valued at $199.00 and a fiction novel valued at $7.00.

7․After the novel was scanned, Mr Wyatt placed it in his bag. As the last item was scanned and placed on the counter, Mr Wyatt took a knife that he had concealed on his body. It had a 6 to 7 cm blade shaped like a diamond with a wooden handle.

8․Mr Wyatt held the knife in his left hand by the wooden handle, with the tip towards two of the staff members. He then lowered the knife to stomach height, with the blade still pointing in the direction of the staff members. He said words to the effect of “you’re going to put everything in this bag, I’m not going to pay for it and I’m going to walk out of here”. The staff members were shocked and feared for their safety.

9․Mr Wyatt then reached over the counter and tried to grab the items. The staff members pulled the items towards them to prevent them being taken. Mr Wyatt was able to take hold of the mobile phone box. Attempts by the staff members to grab this item from Mr Wyatt were unsuccessful.

10․Mr Wyatt began to walk away from the counter. As he approached near the exit, a staff member said, “he’s still got a mobile phone”. A male customer approached Mr Wyatt, and Mr Wyatt turned to face him before attempting to get away from him. In the course of this, the customer attempted to kick Mr Wyatt and contact was made with his leg.

11․Mr Wyatt again turned to face the customer and he swung the knife in his direction. The customer backed away and Mr Wyatt left the post office.

12․The store was placed in ‘lockdown’ in accordance with policy. A staff member described being in a heightened state of fear for her safety and she was concerned that Mr Wyatt might return.

13․When police arrived, they were shown by the staff a small cheese fork with a wooden handle that they believed Mr Wyatt had left behind. It was similar to the knife used by Mr Wyatt and believed to be part of the same set.

14․Mr Wyatt went to the nearby carpark and got into the driver seat of a vehicle registered to him. At 10:00pm that night, police attended at an address where they located Mr Wyatt. He was wearing the same clothing as that described by witnesses and shown in the CCTV footage from the Australian Post office. Mr Wyatt was arrested and taken to the watch house. He agreed to participate in a record of interview, however, the interview did not proceed due to police concerns as to his capacity to participate.

15․Police located a knife of the same appearance as that involved in the aggravated robbery on the front passenger seat of the car, as well as the mobile phone and fiction novel in the car.

Effect on the Victims: s 33(1)(f) of the Sentencing Act

16․Mr Wyatt’s conduct undoubtedly caused significant effects on the staff members and the customer directly involved. They were confronted by an armed person who forcefully demanded items and resisted any attempts to prevent him from taking the property. They were likely concerned not only for themselves but the other people in proximity to the conduct. They all displayed obvious courage in the circumstances.

17․It is also apparent that there were customers in the store at the time of the offence and they would have been exposed to what would have been a frightening and distressing incident.

18․Anyone directly or indirectly involved in this incident will have experienced the immediate emotional shock and distress, but also longer-term impacts that will have occurred from what would have been a traumatic incident. It can be readily observed that the sense of safety for the staff members and the customers has been impacted.

Nature and Circumstances of the Offence: s 33(1)(a) of the Sentencing Act

19․The aggravated robbery involved not only the production and pointing of a knife at two victims, but also a level of physical confrontation, again including the knife, with another victim. The knife used was not of significant length but still had the capacity to cause serious harm and alarm.

20․There is a level of protractedness to the conduct. The verbal threat made was not particularly violent, but that does not reduce the level of fear that would have been experienced by the victims. The staff members were engaged in their work duties when they were unfairly confronted by this conduct.

21․There is also a degree of planning involved. Mr Wyatt has entered the store in possession of two knives, and he either formed an intention to obtain the property through force prior to entry of the store, or at least prior to the items being retrieved from the display cabinet. The manner in which he then carried out that intention is not though indicative of a sophisticated act, and it has aspects of being impulsive. The lack of sophistication is also apparent from Mr Wyatt’s conduct after the offending in which he made no real attempts to avoid detection.

22․The value of the property taken was not significant and it was recovered.

Subjective Circumstances

23․Mr Wyatt is now 38 years of age and was 37 years at the time of the offence. He is single and has no children.

24․Mr Wyatt was born and raised in Canberra and is of Torres Strait Islander origin from his paternal side. He connects to country by “going walk about” by himself. Mr Wyatt does not have a relationship with his biological father. On his maternal side, Mr Wyatt is of Māori heritage. He has a close and supportive relationship with his mother. He also has positive relationships with his step and half siblings, and his aunty and cousins.

25․Mr Wyatt’s only full sibling passed away in 2009 from an illicit substance overdose. Mr Wyatt’s mother described that Mr Wyatt has experienced a lot of guilt and grief around this. Mr Wyatt himself described at the sentence hearing that, after his brother died, he fell into a deep depression, and he started using drugs again. He said, “I could not stop because I was trying to wash my brain out of my brother because it was so hurtful”.

26․In his childhood, Mr Wyatt was exposed to domestic violence. From early adolescence, he ran away from home and involved in gang-related activities until he was 21 years of age. [Redacted].

27․Mr Wyatt reported that he ceased formal education during Year 7, but that he later engaged in education at the Year 10 level. His mother reported that Mr Wyatt’s education was affected by his illicit substance dependency issues. Mr Wyatt says that he is working on his literacy, and it is something he needs assistance with.

28․He has previously had employment in the roadworks industry as a carpenter, and, more recently, he has had employment as a cleaner in a church. He is keen to engage in this employment again upon release from custody. Through the church, Mr Wyatt has
pro-social friends, but otherwise engages in limited pro-social activities.

29․Mr Wyatt is in receipt of the Disability Support Pension through Centrelink and has supports available through the National Disability Insurance Scheme (NDIS). The NDIS supports available upon his release from custody include a supported community based residence, and community support for a minimum of 30 hours per week.

30․Mr Wyatt’s Support Coordinator and Service Manager are providing support to him to such an extent that they were present during the sentence proceedings. They have expressed an understanding of the rigorous requirements of a Treatment Order and a willingness to support Mr Wyatt to meet the commitments of such an Order.

Drug and Alcohol History

31․Mr Wyatt reports problematic consumption of alcohol between the age of 13 to 29 years. He advised a community corrections officer that he was consuming $900 worth of alcohol daily, and that he was able to afford this from working and dealing in illicit substances. He attended the Canberra Recovery Service to address this consumption, however, he relapsed after six months.

32․He no longer experiences problematic use of alcohol. Rather, Mr Wyatt’s current substance abuse involves primarily heroin and methylamphetamine. He has used both substances since he was 11 years of age. When he was 16 years he attended the Ted Noffs Foundation for heroin detoxification. His use of methamphetamine peaked after the passing of his brother and he began using around one gram daily for a period of years. More recently, his use has varied, but included use until he entered custody. While in custody, he claims to not have used substances other than buprenorphine strips, with this verified by testing conducted on 26 March 2024.

33․Mr Wyatt has previously engaged with rehabilitation programs. He was unsuccessful with the Karralika program some five years ago, and unsuccessful in completion of the Solaris program while in custody in 2017. In the past, Mr Wyatt has reoffended while on parole, resulting in the order being cancelled. In 2019, Mr Wyatt was able to successfully complete the Solaris program. He is reported as been of positive behaviour during the current period on remand.

Mental Health

34․Mr Wyatt has advised that he has been diagnosed with drug induced psychosis and schizophrenia. Both Mr Wyatt and his mother believe that the diagnosis of schizophrenia is incorrect, as there is a lack of symptoms. Mr Wyatt considers that he suffers from ongoing drug induced psychosis, which presents as visual and auditory hallucinations.

35․This denial is to be contrasted with the other information before the Court which establishes that Mr Wyatt has mental health conditions. This includes that he has had contact with ACT Mental Health services since 2000. More recently, in August 2022, he was admitted to the Dhulwa Mental Health Unit due to acute symptoms of psychosis. A report from May 2023 by a Forensic Psychiatrist that was prepared while Mr Wyatt was in Dhulwa provides that “there is no doubt that [he] is appropriately diagnosed with schizophrenia which appears to be treatment resistant”.

36․Since 2019, Mr Wyatt has been subject to a Psychiatric Treatment Order (PTO), with the current order due to expire in August 2024. Mr Wyatt is subject to psychiatric review every eight weeks, and clinical manager reviews on a minimum of four weekly basis. Mr Wyatt expresses a preference to not be on the PTO, saying that he “wants control of [his] life” and that he has concerns as to the side effects of medication. He reports though that he “obeys it [the PTO] anyway” and “does what he is asked”.

37․Further, in September and October 2023, Mr Wyatt was admitted for inpatient treatment while experiencing paranoid delusions. Information from Canberra Health Services as at 1 December 2023 reports a diagnosis of schizophrenia and anti-social personality. Mr Wyatt is prescribed a number of medications which are used in the treatment of mental health disorders, including schizophrenia.

38․It is submitted on behalf of Mr Wyatt that a condition of schizophrenia was in existence at the time of the offending and that it remains so as at the time of sentence. It is submitted that several of the sentencing principles that relate to mental health are enlivened: R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins). In particular, all limbs of Verdins other than the first are enlivened. That is:  

…

2.     The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3.     Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4.     Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5.     The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6.     Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

(citations omitted)

39․I accept this submission on behalf of Mr Wyatt, one that the prosecution, appropriately and fairly, did not submit against the Court finding. I am satisfied that both specific and general deterrence are moderated to some degree, and that incarceration will weigh particularly heavily on him and will have an adverse effect on his mental health.

40․Of additional relevance for present circumstances is an assessment by the Forensic Mental Health Services in February 2024 that concluded that Mr Wyatt had no evidence of a major mental illness, disorder or risk issues which would prevent engagement with a Treatment Order.

41․Mr Wyatt’s mental health treatment is described as being complicated by his significant substance abuse, periods of incarceration, and poor engagement with mental health services. A recommendation was made that he engage with further mental health assessments to identify supports he may require. Further, recommendations are made as to communication mechanisms that will be of assistance to Mr Wyatt.

42․Otherwise, in terms of addiction issues, Mr Wyatt reports engaging in problematic gambling while in the community, playing poker machines weekly and spending around $200.

Criminal History

43․Mr Wyatt has a criminal history that is reflective of his long-standing mental health and substance abuse issues. He has come before the courts [redacted] His criminal history includes previous possession of drugs, burglary, driving offences, and acts of violence. Most recently, he was sentenced for offences of minor theft and aggravated robbery committed in July and August 2022.

44․As to his criminal history, Mr Wyatt himself described that “[redacted] and I’m tired of it. [redacted] That much prison. And I’m tired”.

45․This criminal history denies the capacity for leniency in the sentence to be imposed and does cause concern as to the prospects of rehabilitation. As the prosecution submit, Mr Wyatt’s criminal history does indicate that the offence is not an aberration or isolated incident.

46․With reference to this history, it is apparent though that between the 2022 offending and the offence currently the subject of sentence, Mr Wyatt did not offend for some 14 months. While it is apparent that he was receiving inpatient mental health treatment during this time, he did have periods of unsupervised leave.

47․In addition, on behalf of Mr Wyatt it is submitted that his criminal history establishes an approximately four-year gap in offending between 2013 and 2017. I accept that it is established that Mr Wyatt does demonstrate capability to not offend while in the community, particularly when he is receiving comprehensive support.

Bugmy principle

48․This criminal history is also reflective of Mr Wyatt’s background of deprivation and social disadvantage. The report of May 2023 describes this in summary as Mr Wyatt having experienced “a range of adverse childhood experiences and embarked on substance use at a very early age”.

49․I am satisfied that Mr Wyatt’s moral culpability is reduced on account of his childhood experiences: R v Bugmy [2013] HCA 37; 249 CLR 571 at 594-5 [43]-[44]. The prosecution accepted this principle is enlivened. Accordingly, the weight which would ordinarily be given to punishment, denunciation and general deterrence will be moderated in favour of other sentencing purposes such as rehabilitation.

50․This is not to say that the need for community protection becomes irrelevant in the sentencing exercise. Indeed, it can become more significant: Bugmy at [43]. But it is also relevant, as submitted on behalf of Mr Wyatt, to apply what was said in R v Molina (1984) 2 FCR 508 at 510 –

It must be remembered that the ultimate purpose of all punishment is the protection of society. It will often be in the best interests of society if emphasis is put on rehabilitation, particularly in cases where the offender can genuinely be said to be at the crossroads between a useless, drug-ridden and probably criminal existence and a relatively normal life in society, supported by a caring family. (citations omitted)

Maximum penalty

51․The maximum penalty for the offence of aggravated robbery is 25 years imprisonment, $4,000 fine or both.

Plea of guilty: ss 33(1)(j) and 35 of the Sentencing Act

52․As to the plea of guilty and the discount that ought to be applied, the prosecution submitted that the Court would be satisfied that the prosecution’s case was an “overwhelmingly strong” case such that the Court must not make any significant reduction for the plea of guilty.

53․On behalf of Mr Wyatt, it was submitted that the assessment as to whether there was an “overwhelming strong” prosecution case must take into account that while the physical elements were strong, that, in totality, it was not an “overwhelming strong” case. It was submitted that there was scope for a mental impairment defence to be explored such that, as I understood the submission, the willingness to enter a plea of guilty, must still be recognised in assessing the appropriate discount.

54․I am not persuaded that an issue of mental impairment can be applicable in this way. If Mr Wyatt suffers from a mental impairment, he is not criminally responsible for the offence: s 28 of the Criminal Code. Rather, a plea of guilty has been entered and there is no reason to doubt the appropriateness of that plea of guilty on the information before the Court. If any doubt arises, an issue of the integrity of the plea of guilty is raised, rather than one of the extent to which, if at all, s 35(4) applies.

55․What is relevant here is whether, based on the established facts, the Court considers the prosecution case for the offence was overwhelmingly strong: s 35(4) of the Sentencing Act and see R v Newby [2022] ACTCA 20. I am not satisfied that it was. The prosecution played the closed-circuit television footage as relevant to this. This evidence only confirmed what was apparent from the agreed statement of facts, namely that the establishment of Mr Wyatt as the offender relied on a circumstantial case. While a circumstantial case can be as convincing as a case involving direct evidence: see, eg, R v Mason [2019] ACTSC 161 at [22], on the established facts here, I am not satisfied that it amounted to a case that was “overwhelmingly strong” in terms of the identification evidence.

56․Despite the distinction in submissions of the parties as to the appropriate discount arising from the plea of guilty, there is agreement between the parties that it was a plea of guilty entered at a pre-hearing mention stage in the Magistrates Court. A brief of evidence was prepared, but no hearing date was set.

57․I conclude that the plea of guilty was entered at a stage that did involve a level of utilitarian value, but it was not a plea of guilty that was entered in circumstances of an overwhelming case. A discount in the order of twenty percent is appropriate.

Current Sentencing Practice: s 33(za) of the Sentencing Act

58․In determining the appropriate sentence, I have otherwise had regard to current sentencing practice. The parties did not provide any comparative authorities as to this, with this not a criticism given the limited assistance such authorities are capable of providing.

59․I have had regard though to what was recently observed by Mossop J in DPP v Smith [2024] ACTSC 99 at [36], as to what was said by the Court of Appeal in Barrett v The Queen [2016] ACTCA 38 at [40]: “For aggravated robbery, where there was a plea of guilty, most sentences were in the range of 30 months to 4 years”.

60․Further, in R v Dugdale (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 15 August 2012), a sentence of 2 years and 10 months imprisonment was imposed for an attempted aggravated robbery of similar circumstances to what occurred here. The 22-year-old offender there had a disadvantaged background with an extensive criminal record and an illicit substance abuse issue. Notably though, the offender there did not have mental health challenges.

Remorse and insight: s 33(1)(w) of the Sentencing Act

61․In a letter provided to the Court for the purposes of sentencing, Mr Wyatt expressed that he feels sorry for what he did. He feels like he put a scar on the female victims and the male because he threatened them. He wants to say to them that he truly apologises to them. He is very embarrassed about what he has done and doesn’t intend to go to the store again because of his shame.

62․During the Treatment Order assessment process, Mr Wyatt had limited capacity to identify any enduring impact on the victims from the offending. He had limited comprehension as to the risk to the community from possession of a knife, claiming he keeps a knife in his car for protection.

63․I am satisfied that a level of remorse is demonstrated, but it is apparent that there must be caution as to being satisfied that there is insight into the offending. During the sentence hearing, Mr Wyatt expressed, after an explanation of what it involved, a willingness to engage in a restorative justice process. It appears that he would benefit from this, at an appropriate stage of his rehabilitation, to bring accountability for the offending, as well as progress a depth of insight into the impacts of his offending.

Pre-Sentence Custody: s 65 of the Sentencing Act

64․Mr Wyatt was taken into police custody from 13 October 2023 and then remanded in custody. He has remained in custody since that date. From 21 December 2023, he served a term of imprisonment for unrelated offences, with this sentence having concluded on 1 February 2024. The days in pre-sentence custody attributable solely to the offending subject to this sentence proceeding is 93 days. The commencement of the sentence will take this period into account.

65․On behalf of Mr Wyatt, it was submitted that the Court should also take into account the continuous period of six months over which Mr Wyatt has spent in custody with reference to Mill v The Queen (1998) 166 CLR 59 (Mill). The prosecution made no submission against this.

66․I am satisfied that in the circumstances that arise here, where the Verdins principles as to the impact of incarceration are relevant to Mr Wyatt’s mental health, and that Mill is to be applied, the totality of imprisonment that Mr Wyatt has experienced is relevant in determining the term of imprisonment to be imposed.

Conditional Liberty

67․At that time of the offence, Mr Wyatt was on bail. It was a condition of his bail that he not possess any knife or weapon or item that appears to be a weapon in a public place. It is apparent from the agreed facts that he did this prior to, during and immediately after the offence.

68․That the offending occurred while on conditional liberty, including with a blatant breach of a condition of the bail, is informative as to the appropriate sentence to be imposed: see KQE v DPP [2024] ACTCA 7 at [40].

Consideration

69․The seriousness of the offending is such that, having considered possible alternatives, no penalty other than imprisonment is appropriate.

70․The term of imprisonment to be imposed, following a plea of guilty and in circumstances where Mr Wyatt is not subject to a sentencing order for another offence, is such that Mr Wyatt is eligible for a Treatment Order: s 12A of the Sentencing Act.

71․The question then becomes the appropriate manner in which the term of imprisonment is to be served. As already observed, Mr Wyatt seeks that the Court make a Drug and Alcohol Treatment Order.

Drug and Alcohol Treatment Order Assessment

72․The prosecution submitted that the Court should exercise caution as to the appropriateness of a Treatment Order given Mr Wyatt’s subjective circumstances. I accept that there is reason to be cautious as to the prospects of rehabilitation of Mr Wyatt. He is assessed as at a high risk of general reoffending. But there are reasons to be, cautiously, optimistic. Mr Wyatt has had a level of abstinence from substance use while in custody, and he has protective factors available through supported accommodation and community support, and from his mother.

73․Mr Wyatt is someone who clearly has resilience and who has a strong motivation to embrace the opportunity that a Treatment Order provides. Mr Wyatt has informed assessment reporters that his goals include to live in the community without using “meth”. He wants to concentrate on his relationship with his mother and stepfather, and to fix his communication with his father. He wants to get a job and “move on”.

74․During the sentence proceeding, Mr Wyatt expressed that “I got something to look up to because I want to make my brother proud, I want to make myself proud, I want to make my mum proud, and I want to be there to look after my mum instead of my mum looking after me”.

75․The prosecution further submitted that the Court should be cautious as to Mr Wyatt’s explanation for the offending. This submission arises from an inclusion in a letter Mr Wyatt provided to the Court that states that he did something stupid on this day after he had crashed his car, lost his wallet and phone, and that the begging he had done for five hours did not result in securing any funds. He was in a mental health crisis and wanted to call for mental health support, but he needed a phone and money.

76․I accept that this explanation for the offending doesn’t directly attribute the offending to drug use. But I am satisfied that it does in a broader sense. This is so given there is plainly an interaction between Mr Wyatt’s mental health and his drug use, and that both have a contributing factor to the challenges he experiences in managing his day to day affairs. Mr Wyatt explained during the assessment that he committed the offence in circumstances where he was “using every day” and that he “wouldn’t have done it if he wasn’t chasing drugs”.

Treatment Order Suitability Assessments

77․ACT Corrective Services have assessed Mr Wyatt as suitable for a Treatment Order. In doing so though, they have quite appropriately emphasised reservations as to his ability to successfully complete such an order. Concerns were raised as to his limited comprehension of the risks and impacts that arise from his offending behaviour.

78․ACT Health Services have assessed Mr Wyatt as suitable for a Treatment Order. He was found to present with a likelihood of a severe substance use disorder at the time of his offending. Mr Wyatt was described in the assessment as being future-focused and motivated towards engaging with treatment, finding employment, and rebuilding family relationships.

79․Health Services identified the Matrix Program at Karralika, an intensive 16 to 20 week program, as the most suitable for Mr Wyatt, with this program accepting a referral for Mr Wyatt to commence with an orientation session on 3 May 2024. Such a program will enable Mr Wyatt to engage with a Treatment Order while being supported in the community by NDIS staff. This approach would not prevent a ‘step up’ to a residential rehabilitation if found necessary.

80․Health Services further recommended that the treatment and supervision part of the order for Mr Wyatt should be for a period of 12 to 18 months.

81․The finding of suitability by Health Services was subject to Corrective Services approving Mr Wyatt’s suggested accommodation. There was no finding of unsuitability as to the accommodation.

82․Mr Wyatt has had the obligations and expectations of a Treatment Order explained to him by the treatment team assessors, and by this Court during the sentence proceeding. He has expressed an understanding of a Treatment Order. This includes an understanding that he will be unlikely to initially engage in employment and that his
long-term intentions to relocate interstate with his mother could not occur during the term of the Treatment Order. Mr Wyatt expressed an understanding and acceptance of this.

83․In addition, Mr Wyatt expresses an apparently genuine and strong motivation to succeed with a Treatment Order. As submitted on his behalf, he recognises he is at a “crossroad” in his life. Mr Wyatt expresses that he is:

… really looking to change my life. I realise that drugs and alcohol have destroyed my ability and my mental health, my family, and destroyed relationships with other people. I wanna fix that. I am already 38 years old, I don’t want to go down a path where I am 40 years old saying the same thing to the same courts. I want to fix my life and move on. … I will lose my mum if I stuff up this last chance and I can’t lose my mum.

Eligibility and Suitability for Treatment Order

84․I am satisfied that Mr Wyatt is dependent on a controlled drug and his dependency substantially contributed to the commission of the offence: s 12A(2)(a)(i) and (ii) of the Sentencing Act. I am also satisfied that Mr Wyatt will live in the ACT for the term of the sentence except as directed by the court: s 12A(2)(a)(iii) of the Sentencing Act.

85․I consider, having taken into account the relevant sentencing considerations that apply to Mr Wyatt, that there is no information as to concerns of a victim about their safety or welfare, and the objects of a Treatment Order, that the order is appropriate: s 12A(2)(b) of the Sentencing Act.

86․Mr Wyatt has given informed consent to the order as required by s 12A(2)(c) of the Sentencing Act.

87․I am otherwise satisfied that a Drug and Alcohol Treatment Order is a suitable order under s 80T of the Sentencing Act, and accordingly a Treatment Order will be made.

Conditions of the Treatment Order

88․The prosecution, not inappropriately, raised that if the Court is minded to make a Treatment Order the this be by way of residential rehabilitation from the outset. This submission finds support in the Forensic Mental Health assessment, and otherwise is consistent with the caution that must be had, given Mr Wyatt’s previous challenges when in the community.

89․I am satisfied though that it is appropriate that the Treatment Order does not involve a residential rehabilitation approach, at least to begin with. I am persuaded of this given the availability of stable accommodation and that Mr Wyatt has substantial support available through NDIS. It is apparent that he will have available to him what might be described as “wrap around” supports to assist him with all facets of the challenges he faces when in the community.

Determination

90․The offence committed by Mr Wyatt was a serious one. He produced a knife at an Australia Post store and demanded property, causing significant fear to not only the employees and a particular customer, but undoubtedly members of the community. Denunciation of this conduct is warranted.

91․That Mr Wyatt was experiencing mental health and substance abuse challenges at that time does little to reduce the impacts from this offending on the victims and bystanders.

92․But the Court is to consider not only those impacts but is to also give effect to other sentencing considerations and purposes. This includes the circumstances of the offender that mitigate the sentence, and that there is a need for the promotion of rehabilitation. Mr Wyatt is someone who, as submitted on his behalf, has reached a point in his life of being at a “crossroads”.

93․Mr Wyatt recognises that it is now or never for him to address his long-standing substance abuse issue, or instead to have a life involving further criminal offending and imprisonment. It is appropriate that the Court support that intention, with this ultimately been an outcome that will best secure community protection in the future.

94․The term of imprisonment will be suspended for the purposes of a Treatment Order.

95․Mr Wyatt, please stand.

Orders

96․For those reasons the following orders are made:

(1)Scott Wyatt is convicted of aggravated robbery (CAN 778/2024) and a sentence of 2 years imprisonment, reduced from 30 months imprisonment, is imposed to commence on 1 February 2024 and end on 31 January 2026.

Drug and Alcohol Treatment Order

(2)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) is made for Scott Wyatt in respect of the eligible offence of aggravated robbery (CAN 778/2024), of which Scott Wyatt has been convicted and for which he has been sentenced to a total term of 2 years imprisonment, reduced from 30 months imprisonment on account of the plea of guilty.

(3)It be noted that convictions and sentences imposed for the eligible offences have been recorded and are hereby incorporated into the Drug and Alcohol Treatment Order in the Custodial Part of the Order.

(4)The Drug and Alcohol Treatment Order is for 1 year 8 months 29 days from today, 3 May 2024 to 31 January 2026.

(5)The Treatment and Supervision Part of the Drug and Alcohol Treatment Order is for 18 months from 3 May 2024 to 2 November 2025.

(6)The Custodial Part of the Drug and Alcohol Treatment Order for the eligible offence is suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 3 May 2024 until 31 January 2026.

(7)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Scott Wyatt is 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 the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, 3 November 2025, until the end of the total sentence, 31 January 2026, with the additional probation condition that that he 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 him considers appropriate and obey all reasonable directions of the person supervising him.

(8)For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:

(9)The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;

(10)Scott Wyatt reside at [redacted]

(11)Scott Wyatt not leave his place of residence between the hours of 8:00pm each day and 7:00am next day, and present himself to the front door of the residence if required by an officer of ACT Policing.

(12)Scott Wyatt comply with any mental health treatment as directed by any member of the Treatment and Supervision Team.

(13)Scott Wyatt not possess any knife or weapon in a public place.

(14)Scott Wyatt 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 he resides, with whom he associates, appointment attendances and transport.

(15)Scott Wyatt not return a positive test sample under alcohol and drug testing; and

(16)Scott Wyatt comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.

(17)Scott Wyatt is directed to sign a sealed copy of this Ordre 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 he leaves the Court precincts, today, 3 May 2024.

(18)Scott Wyatt is directed to appear in Court in person on Tuesday, 7 May 2024 at 11:30am.

(19)It is noted that Scott Wyatt has indicated a willingness to engage in restorative justice, and it is recommended that the director-general (corrections) refer the offence for restorative justice pursuant to Pt 6 of the Crimes (Restorative Justice) Act 2004 (ACT) at a stage as deemed appropriate by the director-general (corrections) during the Drug and Alcohol Treatment Order.

[Her Honour then directly spoke with the offender]

97․Mr Wyatt, all of that is to say that you will be undergoing a Drug and Alcohol Treatment Order for a period of 18 months. And that will be followed by a good behaviour order for a period of some 6 months. So a total of approximately 2 years you will be under supervision. You must understand this is an alternative to imprisonment. If you do anything that leads to a cancellation of this Treatment Order you can expect you will be returned to custody to serve the 2 years imprisonment.

98․You have also got other matters hanging over your head that you told me about, that you want to make yourself proud, you want to make your brother proud and you want to make your mother proud. And I think I’ve already told you that it is not going to be easy. In many ways it is easier to be in prison than what you are about to do.

99․You are going to have to go to the programs, to the appointments, to counselling. You are going to have urinalysis and you’re going to be coming to court a lot. And I have also imposed a curfew on you to start with.

100․You need to understand, Mr Wyatt, that this is your opportunity to achieve the goals that you told me about. You have got some really good goals that you want to do, with employment and with your family, and what your future is going to look like.

101․We are not asking you to be perfect. We know this is going to be difficult. But we do require you to do your very best.

102․And we also require you to be honest. You need to be honest with the court. You need to be honest with the treatment team, with your counsellors. If you are having difficulties you need to tell us and we will see what we can do. I look forward to seeing you working on those goals.

I certify that the preceding one-hundred-and-two [102] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen

Associate:

Date: 10 February 2025

Corrigendum: 10 February 2025

1. Redact the last sentence of [26].

1. Redact first sentence of [44] from after “that” to before “I’m tired of it”.