R v Dylan Wallace - [2013] ACTSC 284

R v DYLAN WALLACE
[2013] ACTSC 284 (20 December 2013)

CRIMINAL LAW – Judgment and Punishment – Sentencing – Aggravated robbery – Youthful offender

Crimes (Sentence Administration) Act 2005 (ACT)
Crimes (Sentencing) Act 2005 (ACT), ss 7, 36, Pt 6.1

Criminal Code 2002 (ACT), s 312

Hogan v Hinch (2011) 243 CLR 506
McKenna v The Queen (1982) 7 WAR 455
Muldrock v The Queen (2011) 244 CLR 120
R v Gordon (1994) 71 A Crim R 459

EX TEMPORE JUDGMENT

No. SCC 159 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 20 December 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 159 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

R
V
DYLAN WALLACE

ORDER

Judge:  Refshauge J
Date:  20 December 2013
Place:  Canberra

THE COURT ORDERS THAT:

Dylan Wallace be convicted of aggravated robbery on 20 July 2012.

Dylan Wallace be sentenced to two years’ imprisonment.

The sentence be suspended from today for two years.

Dylan Wallace be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years from today with the following conditions:

(a) A probation condition that he be under the supervision of the Director-General, or her delegate, for two years, or such lesser period as the person delegated to supervise him may consider appropriate, and that he obey all reasonable directions of the person delegated to supervise him, especially as to treatment or counselling for drug issues, mental health issues and anger management.

(b) That Dylan Wallace perform 250 hours of community service work within fifteen months from 20 December 2013; and

(c) That Dylan Wallace accept monitoring by the Court Alcohol and Drug Assessment Service for a period of twelve months.

There is no doubt that the courts are required to deal severely with serious offending, such a response is part of the obligation of the courts to protect the community from behaviour that puts people and their property at risk. Nevertheless, the courts have also made it clear that a sentence must be proportionate to the circumstances of the offending behaviour and take into account relevant matters including the personal circumstances of the offender.
Now appearing before me for sentence is Dylan James Wallace, who has pleaded guilty to an offence of aggravated burglary. Aggravated burglary, an offence under s 312 of the Criminal Code 2002 (ACT), attracts a maximum penalty of 2,000 penalty units, that is, at the time, a fine of $220,000, or imprisonment for twenty years, or both. It is, therefore, clearly to be regarded as a serious offence by the courts, the maximum penalty for statutory offences serving as an indicator of the relative seriousness of the offence. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31].
The offence of burglary was committed when Mr Wallace entered a residential unit in Mawson as a trespasser intending to steal property. The circumstance of aggravation was that he was in the company of others at the time. I have, in fact, started the sentencing of one of the co-offenders who entered the unit with Mr Wallace. It appears, however, that the agreed statement of facts in this case is a little different and, of course, while it is desirable that co-offenders be sentenced by the same judicial officer, a sentence must be passed based on the facts presented to that judicial officer in respect of each offender, even if different from that presented for a co-offender.
The offence occurred in the evening of 20 July 2012. Mr Wallace and the co-offenders agreed to go to the subject unit of the victim, planning to knock him unconscious and take drugs and cash from his unit. Mr Wallace said that he and his co-offenders had been told that the victim was in possession of money and drugs not belonging to him, and that the offenders were encouraged to commit the offence to obtain the money and drugs, which they were to give to the person who had encouraged them to commit the offence, in exchange for some money in return. While this does not substantially reduce the seriousness of the offence, it gives some context, which is important.
Mr Wallace and his co-offenders agreed to wear clothes that would conceal their identities. Mr Wallace dressed in dark clothes and had a t-shirt for himself and his co-offenders, which they could all pull over their faces. Mr Wallace also had a sports bag, which he intended to use to carry away the items that he stole from the victim’s unit.
The three then travelled to Mawson, where the victim’s unit was, and walked over to it. They pulled the t-shirts up over their faces and one of the co-offenders knocked at the victim’s door. The co-offender identified himself and, when the victim opened the door, Mr Wallace’s co-offenders rushed at him, pushing him to the hallway and against the wall, and began striking him to the face and head with their fists. Mr Wallace did not personally inflict any of the violence, though, of course, he is jointly responsible for the offence. Mr Wallace, instead, ran around the apartment searching for drugs.
The victim was pulled to the ground and the co-offenders continued to punch him until he was bleeding from his face and mouth. Mr Wallace found some prescription tablets and a packet of cigarettes, but no other drugs and no money. He then told his co-offenders that he had not found anything and they should leave. They ran from their unit, Mr Wallace pausing to stomp on the victim’s phone so that he could not easily call the police. The aggravating feature of the offence was that Mr Wallace knew the victim, having purchased some cannabis from him earlier.
The offenders then went to one of the co-offenders’ place of work where the co-offenders washed the victim’s blood from their hands. They then returned to Mr Wallace’s apartment in North Lyneham, where the co-offenders took showers and changed clothes while Mr Wallace soaked their clothes. Mr Wallace then threw out one of the packets of tablets, keeping the remaining packets and the cigarettes.
On 4 June 2013, Mr Wallace attended at City Police Station and gave an interview to the police where he made full admissions and subsequently provided a statement to police in relation to his involvement with the other co-offenders. One of the co-offenders has pleaded not guilty to the offence, so he should technically be called a co-accused. Mr Wallace has agreed to give evidence against that person, should it be necessary, and the prosecution have agreed that he should have the appropriate benefit under s 36 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act).

THE PROCEEDINGS

Mr Wallace was not arrested, but was summonsed to appear in court on 20 September 2013. He appeared on that day and pleaded guilty at the earliest opportunity and, of course, consistent with the admissions he had made in his interview with police. He was committed to this court for sentence.
He has not spent any days in custody.

SUBJECTIVE CIRCUMSTANCES

Mr Wallace is aged twenty. His birth parents were unable to care for him as his father was in custody at the time and his mother had mental health challenges. He was placed in foster care from an early age, after being abused by his mother’s then partner. He was fortunate to have spent ten years with the one foster family. That foster family gave him a good family life and he described his attitude to them, stating that he “loves them to bits”. He remains in contact with them.
At age sixteen, he moved in with his birth father. He moved out a short time later and has lived independently in his own accommodation for about three and a half years. He appears, however, to have formed a reasonable relationship with his father and one of the businesses, for which he recently worked casually, is a company for which his father also works. He held that position for the past three years. He was said to be a good worker, working between twenty and forty hours a week, and on call. His employment also included weekend work.
The firm decided to offer him permanent employment, and he disclosed the offence he had committed and these proceedings. At first, the company seems to have accepted that and the offer remained, but later they withdrew it, and also terminated his casual employment. He has, however, since obtained employment with the local service station where he works from midnight to 8:00 am, four days a week. It is a responsible job and, for all but two of his working hours, he works alone. He handles money and stock. His employer is aware of these offences.
Mr Wallace also undertakes volunteer work with the CREATE Foundation, Australia’s peak body representing the voices of all children and young people in out-of-home care. He has done so for six years. He recently participated in the Foundation’s first national conference.
Mr Wallace knew one of his co-offenders since they met at College and they regularly played computer games together. He met the other co-offender through his school friend about two years ago. He has now ceased all contact with his co-offenders.
Mr Wallace’s drinking of alcohol is not problematic, but he started smoking cannabis about five years ago, using up to one to two cones a fortnight. His consumption increased to the point of dependence when he found he was unable to last through the day without smoking. He realised that his use of cannabis was problematic and he managed to stop, detoxing over a week. He has, however, returned to the use of the drug and smokes about five to six cones a day, but has started to reduce. Although he uses a lesser amount of cannabis, he has continued to use it because initially he thought that it moderated his anger problems. He realises now that, rather than moderating his anger problems, it actually exacerbates it.
He was to have been assessed by the Court Alcohol and Drug Assessment Service (CADAS) for these sentencing proceedings, but failed to attend. He told me that he had gone to the coast to assist his grandmother who, as a result of an operation on her feet, is no longer mobile. He was unable to return in time for the assessment. He has, however, made a further appointment on 2 January 2014, which has been confirmed. He wishes to see how he can cease use of cannabis and strengthen his relapse prevention against further drug use.
Mr Wallace has experimented with other illicit substances, including cocaine, amphetamines, ice and experimental hallucinogens, but he says that he has not used them for the past fifteen months. He realised, after committing the offence, how serious was the road down which the use of drugs had taken him and he ceased all use apart from the use of cannabis, to which I have earlier referred.
Mr Wallace appears to have no physical health problems but admits to having an anger management problem, finding it difficult at times to control his anger. As noted above (at [17]), he said that his use of cannabis, he thought, kept his anger problems in control, but realises now that it exacerbates it.
He has not been diagnosed with any mental illness, but, at one stage, was of the view that, like his mother, he may have a bipolar disorder. He is not now so sure, although he says he has manic periods and also periods of extreme depression.
About six years ago, Mr Wallace saw a counsellor, but has not sought assistance since then. He has some concern about counsellors, especially those who wish to probe periods of his life that he does not want to revisit, particularly concerning trauma in his young days. That may be necessary, but I am not qualified to comment. He has, however, identified a counsellor by whom he has been treated in the past, and who he feels may be able to assist him now.
He suffers nightmares from the physical abuse he experienced as a baby.
Mr Wallace admitted responsibility for the offence, but blamed his participation on those who encouraged him to the commit the offence. Nevertheless, to me, he showed, in evidence, insight and regret for the offence. He stated to the author of the helpful Pre-Sentence Report:
when committing the offence, he believed the victim deserved what was happening to him as he had a view about his character, which was less than desirable. He said he has had time to reflect on his behaviour and now feels sorry for the victim as he did nothing wrong to deserve the assault and trauma that he was subjected to in his own home.
Although the abuse that Mr Wallace suffered has clearly affected him, he appears to have had a relatively stable foster family and has now re-established an appropriate relationship with his father. These are positive factors in his life. He accepts that his offending behaviour was very wrong, although there is some initial attribution of blame to others. In his evidence to me, however, he put the blame particularly on the use of drugs, which, as I have referred to earlier, he has now stopped using.
I had two references for Mr Wallace. Both wrote in uniformly supportive terms. He is described by one referee as
an intelligent and friendly young man with a genuine interest in improving the circumstances of other children and young people in out-of-home care.

He impressed as a young person “determined to make something of his life”. He has been seen to grow into a polite and confident man with an engaging and warm manner. The other referee described his leadership and mentoring role and his close participation in the work of the charity. He is assessed as at a low to moderate risk of further reoffending, but, addressing his drug use, mental health concerns and anger management, would obviously assist to reduce that further.

THE OFFENCE

Aggravated burglary is a very serious offence, as the legislature has made clear by the maximum penalties it set for it. Ordinarily, such an offence would attract a term of immediate full‑time custody.
The events of the evening must have been frightening to the victim. I do not have a victim impact statement but it is not difficult to imagine a home invasion in the evening, when three young men burst in, having a traumatic effect on the resident. The courts have a duty to denounce such behaviour and such denunciation is usually only effective if severe sentences are imposed on those who commit such offences.

CONSIDERATION

I take into account the purposes of sentencing set out in s 7 of the Sentencing Act.
I take into account Mr Wallace’s plea of guilty, which was made at the very earliest opportunity, consequent upon his frank admissions to police when he attended to speak to them initially. It entitles him to the maximum discount available.
Another significant factor is that Mr Wallace is still a young man with no prior convictions. I note what Ipp J said in McKenna v The Queen (1982) 7 WAR 455 at 468:
At common law, youth is a significant mitigatory factor, although normally its weight decreases as the offender moves through their early 20s, and so is the need to attempt rehabilitation of youthful offenders. There is also, in my view, a significant difference between a youthful offender and an offender who is defined as a child by legislation.
This leads to a situation which there will be a marked transition in the severity of sentencing for offences committed on and after the day on which an offender attains 18 years. In my view, that is the case because the offender no longer enjoys the particular statutory protection for juveniles …
Thus, as Hunt CJ at CL pointed out in R v Gordon (1994) 71 A Crim R 459 at 469:
Youth, [even [though an offender is not under the age of 18 years,] is not to be disregarded in the sentencing process.
I also note, as pointed out by French CJ in Hogan v Hinch (2011) 243 CLR 506 at 537; [32], that rehabilitation, if it can be achieved, is the surest guarantee of protection of the community. I take into account the seriousness of the offence. This is not to be minimised and should be adequately reflected in the sentence imposed.
I take into account Mr Wallace’s subjective circumstances set out above and especially the efforts he has made to stop using drugs, to gain employment and to seek assistance for his mental health and anger management problems. I take into account the assistance that Mr Wallace has agreed to provide if his co-accused contests the charge.
I note that he is regarded by others as of good character, despite this lapse of significant proportions.
He has been assessed as suitable for a community service work condition to a good behaviour order and suitable for periodic detention, for which he has signed the relevant undertaking. I am satisfied, under Pt 6.1 of the Sentencing Act, that Mr Wallace is eligible for a community service work condition to a good behaviour order.
Mr Wallace, please stand. I convict you of aggravated robbery on 20 July 2012. I sentence you to two years’ imprisonment. Had you not pleaded guilty, I would have sentenced you to two years and nine months’ imprisonment. I suspend that sentence today for two years. I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years with the following conditions:

(a) A probation condition that you be under the supervision of the Director-General or her delegate for two years, or such lesser period as the person delegated to supervise you may consider appropriate, and that you obey all reasonable directions of the person delegated to supervise you, especially as to treatment or counselling for drug issues, mental health issues and anger management.

(b) That you perform 250 hours of community service work within fifteen months from today; and

(c) That you accept monitoring by the Court Alcohol and Drug Assessment Service for a period of twelve months.

[His Honour then spoke directly to Mr Wallace]
Mr Wallace, that is the formal order and it is in legalese, so I am obliged to explain to you. This is a very serious offence and, ordinarily, you would go to gaol for two years. You would have gone to gaol for two years and nine months, had you not pleaded guilty and confessed and accepted your responsibility at an early stage. I have suspended that sentence and I do not require you to spend any time in custody because of the matters that I have been referred to and by which I have been impressed.
However, I have made what is called a good behaviour order, which you must sign as an undertaking. That undertaking says that you will do certain things. The three things that are most important are: first of all, that you must not commit any further offences punishable by imprisonment. If you do commit such an offence, you can be brought back before me and I can re-sentence you and that includes sending you to gaol, if that is appropriate in the circumstances. Secondly, you must comply with any directions of the person delegated to supervise you, that is, an officer of Corrective Services.
Now, part of that is for control, to make sure that you do not re-offend and that you engage in social activity, but it is also an opportunity, if things go wrong, because life is never easy – it gets tough – if things go wrong, there is someone with experience and knowledge of agencies and people that may assist you to whom you can turn to get some help to address any of the difficulties that are there. It can be someone objective; it does not have to be family or friends, who you may not wish to talk to about these issues, and they can give you some steerage or some direction.
Again, if you do not obey those directions that they give you, and they are for the three issues that have been identified, drugs (and you do that anyhow on 2 January), of mental health (and you have got a counsellor lined up but talk to the probation officer; they might send you to someone else, if that is the way you want to go, and give you a direction to go and see that person and follow it up) and the anger management (for which there are courses around and they will know what is available, and they will make some suggestions about that).

The third thing, then, is you have got to work for free for the community for 250 hours. You should be able to do that over fifteen months. The minimum period is twelve months, but I have given you a little extra time because it is important that it does not interfere with your employment, as employment is a good thing for keeping you out of trouble. If you do not comply with that order and commit to perform those hours, you can be brought back before me, as with a breach of the good behaviour order for committing further offences or for not complying with directions, and I can re-sentence you. Such re-sentencing will include the possibility of sending you to prison.
You have the rest of your life before you. You have arrived at this stage of your life overcoming some disadvantage, but with a lot of help along the way and you are lucky to have had a really good foster family experience. The contribution you have put back into the community through the CREATE Foundation is to your credit and I hope you are able to continue that and assist those who, perhaps, have not had as successful an experience as you have had.
This is a massive fall from grace. A conviction for aggravated robbery would ordinarily mean you would be in the Alexander Maconochie Centre for Christmas now, but you are entitled to have the good things that you have done held to your benefit and I hope the criminal courts will not see you ever again. You may be seated.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 31 March 2014

Counsel for the prosecution:  Ms S McMurray
Solicitor for the prosecution:  ACT Director of Public Prosecutions
Counsel for the defendant:  Mr K Archer
Solicitor for the defendant:  Daryl Perkins Solicitors

Date of hearing: 20 December 2013

Date of judgment: 20 December 2013