R v Dylan Wallace
[2015] ACTSC 234
•4 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v DYLAN WALLACE |
Citation: | [2015] ACTSC 234 |
Hearing Date(s): | 4 August 2015 |
DecisionDate: | 4 August 2015 |
Before: | Refshauge J |
Decision: | Dylan Wallace be granted bail to appear before this Court at 9:30am on 21 October 2015 and at 9:30am on 16 December 2015 subject to the following conditions: a) That he notify any change of address to ACT Corrective Services within 24 hours of changing his address; b) That he accept the supervision of the Director‑General or her delegate and obey all reasonable directions of the person supervising him, especially as to the completion of the community service condition of the Good Behaviour Order made on 20 December 2013; c) That he not consume illicit drugs; d) That he be subject to urinalysis, as directed of the officer supervising him. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – Breach of Good Behaviour Order – Failure to comply with a community service work condition |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 102 Crimes (Sentencing) Act 2005 (ACT) s 12 |
Cases Cited: | Guy v Anderson [2013] ACTSC 5 R v Wallace [2013] ACTSC 284 |
Parties: | The Queen (Crown) Dylan Wallace (Accused) |
Representation: | Counsel Ms P Burgoyne-Scutts (Crown) Mr H Jorgensen (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 159 of 2013 |
REFSHAUGE J:
On 20 December 2013, I sentenced Dylan Wallace for an offence of aggravated robbery committed on 20 July 2012. I sentenced Mr Wallace to two years imprisonment, but suspended that sentence for two years and made a Good Behaviour Order with a probation condition and a community service work condition that he perform 250 hours of community service within 15 months from that day.
On 26 February 2015, information was laid under s 102 of the Crimes (Sentence Administration) Act 2005 (ACT) that Mr Wallace was in breach of his Good Behaviour Order in that he had failed to perform community service work as directed.
It appears from the information that he had only performed 46 hours of the 240 hours required. The information discloses a series of failures by Mr Wallace to attend the community service induction program on two occasions, finally attending a third. Thereafter, he attended for community service work on two occasions and then failed to attend on two occasions. This pattern continued, failures to attend and occasional attendances, until his attendance on 29 July 2014, which was the last time that he attended for community service work.
He failed to attend on a total of 14 occasions, excluding the two induction programs, between 31 March 2014 and 29 July 2014. He attended on seven occasions, from 17 March 2014 to 29 July 2014. It is fair and important to note that for nine of the failures to attend he did provide a medical certificate and for a further one a letter from his employer explaining his absence; thus he had only four absences which ultimately were unexplained. His delivery of the certificates and letter to show these excuses was not timely and that is not satisfactory. In any event, even the four unexplained absences were unsatisfactory and not to be condoned.
Initially, a summons was issued in respect of the breach, but was unable to be served, and on 29 May 2015 I issued a warrant for Mr Wallace's arrest. That warrant was executed on 11 June 2015 and Mr Wallace appeared before me on that day. I adjourned the matter so that he could get legal assistance and I granted him bail.
After a mention on 24 June 2015, the matter was adjourned to 2 July 2015 when I further adjourned the proceedings to 4 August 2015, granting Mr Wallace bail with certain conditions, including that he accept the supervision of the Director‑General or her delegate and obey all reasonable directions of the person supervising him, especially as to the completion of the community service condition of the Good Behaviour Order made on 20 December 2013. I also requested an updated Pre‑Sentence Report asking that it specifically address his progress on bail since then.
The facts
I have set out the facts of the original offence in my reasons for sentence, R v Wallace [2013] ACTSC 284. In brief terms, Mr Wallace and two co‑offenders went to the residential unit of the victim intending to knock him unconscious and take drugs and cash from his unit. They had apparently been encouraged to do this by a man who was to supply them with money for the drugs and money obtained from the victim.
While two of Mr Wallace's co‑offenders seriously assaulted the victim, Mr Wallace went around the apartment seeking drugs; he failed to find any. It was a very serious offence. It deserved a severe sentence, as the term of imprisonment shows. Having regard, however, to Mr Wallace's age, lack of prior criminal record and other subjective circumstances also set out in R v Wallace, I decided that it was appropriate to suspend the sentence and, as required by s 12 of the Crimes (Sentencing) Act 2005 (ACT), I made a Good Behaviour Order, as set out above (at [1]).
As noted above (at [4]), Mr Wallace has completed only a very small portion of his community service work required under the condition of the Good Behaviour Order. He has, to his credit, committed no further offences and been generally employed continuously since I sentenced him. He has sought an opportunity to complete his community service work. Indeed, when I released him on bail after his arrest, one of the bail conditions required that he accept supervision, and, in particular, re‑engage with community service work.
Unfortunately, my direction was not successfully communicated to ACT Corrective Services and Mr Wallace has not been completing his community service work, even though it appeared to me that the community service work requirements included in his bail conditions would have alerted that agency to the need for it. Thus I have not been able to assess whether he is genuine in his wish to recommit to completion of the community service work. I had a Pre‑Sentence Report, however, updating the earlier report that I had for his sentencing. It was generally positive.
Mr Wallace reported difficulties with accommodation at this time and described his living arrangements as "couch surfing". It appears, however, that there is some temporary, stable basis for his accommodation until further accommodation is able to be sourced.
Mr Wallace continues to enjoy supportive relationships and regular contact with his father and foster family. He has discovered that he has a daughter, who currently lives in Melbourne, and he wishes to relocate to Melbourne in order to provide some parental assistance to her, even though he is no longer in a relationship with her mother. He wishes, therefore, to complete the community service by the end of the year.
Mr Wallace has been employed for approximately three years but lost his position in early July 2015 due to a dispute with his employer. He is currently working on a casual basis in the warehousing industry until he is able to secure ongoing employment. He continues to enjoy good physical health but experiences depressive symptoms which he has experienced throughout his life. These are, as I understand it, some of the medical causes of his failure to attend for community service work.
He sought assistance in 2013 for the symptoms that he was experiencing by engaging with counselling services but that was only for a brief period and, insofar as I am aware, he is no longer accessing such counselling.
He has had some issues with drugs in the past which began with a fortnightly consumption of cannabis and escalated to daily use. On 20 July 2015, a drug use screening tool was administered indicating that Mr Wallace's drug use is considered to be substantial, requiring further assessment and intervention. That is, of course, a significant matter in relation to the possibility of re‑offending.
He is assessed as at a medium risk of general re-offending, specifically due to his lack of accommodation, illicit substance use, mental health conditions and poor attitude towards his offending. Should he address these areas, his risk of re-offending may be reduced.
Consideration
It has been said many times that a breach of a Good Behaviour Order should not be ignored, and the failure to respond with an appropriate degree of severity is likely to bring the system of Good Behaviour Orders into disrepute; see, for example, Guy v Anderson [2013] ACTSC 5 at [83]-[87].
Accordingly, it will be necessary, in due course, for me to impose a penalty on Mr Wallace for his failure to comply with the Good Behaviour Order. Nevertheless, it seems to me that he should be given a further opportunity to complete the community service work and I will give him that opportunity.
There are various options that would be available for this purpose, one is to sentence him but to remake the Good Behaviour Order with a community service work condition. While that has some attraction, the difficulty is that the breach action is somewhat more complex and cumbersome.
I could make a deferred sentence order, but since he wishes to complete his community service work before the end of the year I am not convinced that the formal structure of a deferred sentence order is appropriate.
Finally, he could be granted bail with the condition that he complete his community service work. It seems to me that is the best option.
Given the miscommunication referred to above (at [10]), I requested that an officer of ACT Corrective Services be available to assure me that, were I to proceed in that way, it would be possible and ACT Corrective Services would be able to give effect to my orders. I have now received that assurance and propose to proceed in that way.
Accordingly, I grant Mr Wallace bail to appear before me at 9:30am on 21 October 2015 and at 9:30am on 16 December 2015 with the following conditions:
a) That he notify any change of address to ACT Corrective Services within 24 hours of changing his address;
b) That he accept the supervision of the Director‑General or her delegate and obey all reasonable directions of the person supervising him, especially as to the completion of the community service condition of the Good Behaviour Order made on 20 December 2013;
c) That he not consume illicit drugs;
d) That he be subject to urinalysis, as directed of the officer supervising him.
I also request the Director‑General to prepare a Pre‑Sentence Report under part 4.2 of the Crimes (Sentence Administration) Act limited to Bail Progress Reports, and, in particular, his completion of community service, that Pre‑Sentence Report to be available for both 21 October 2015 and 16 December 2015.
I recommend to the officer supervising him that any unauthorised failure to comply with a direction relating to community service work be reported forthwith to the Director of Public Prosecutions. I will invite the Director to re‑list the matter upon such a report being received so that it can be dealt with appropriate and expeditiously.
[His Honour then spoke directly to Mr Wallace]
Mr Wallace, I repeated what you did in the offence because you must recognise that this is a very serious offence and, in ordinary circumstances, you would be in gaol now. I have given you the opportunity for the reasons set out in my earlier remarks on sentence. You have not exactly complied with them in the spirit in which I indicated, but you have some reason for that. You have now got an opportunity to show me that my faith in you was justified and that you can repay to the community for what you have done by undertaking the community service work.
There is not much slack now; that means medical reports must be delivered immediately, if not before any non-attendance, and if there are genuine employment matters then letters from employers will be required immediately, if not beforehand, otherwise you will be back before me.
You can be assured that, unless you show commitment, I will seriously consider imposing a gaol sentence because that is what the community would expect. If you are genuinely committed to completing your community service as you have said, and if you really want to get down to Melbourne to be a parent to your daughter, then hopefully that will be a motivation sufficient to make sure that you do what I have said.
I indicated before that there will be a penalty for breaching the Good Behaviour Order, and I am thinking in terms a fine, so you need to bear that in mind also.
If you continue to do the volunteer work that you have been doing that is a really good thing, it is to your credit and it might moderate where I go at the end of the day, but, as you have heard, it cannot be taken into account as community service work, although the agency may ultimately be one with whom you can work through the community service structure.
You do need to pay a penalty back to the community, that is what I have judged is appropriate, and if you do that properly then you may well be in a position to move onto the next stage of life, including in assisting in the looking after of your daughter, which is one of the most significant and important things that a person can do, but it is entirely up to you. What I have said will be recorded and you can be assured that the prosecution are very good in bringing these comments back to me and encouraging me to ensure, as is completely appropriate, that these kinds of orders are not ignored and not treated with disrespect but are put into effect as part of the criminal justice system which keeps our community safe.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Refshauge Associate: Date: 18 August 2015 |
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