R v Walden
[2022] ACTSC 347
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Walden |
Citation: | [2022] ACTSC 347 |
Hearing Date: | 21 December 2021 |
DecisionDate: | 11 January 2022 |
Before: | Refshauge AJ |
Decision: | 1. Jake Tony Walden be convicted of aggravated robbery on 1 August 2021 and sentenced to imprisonment for two years, to commence on 15 September 2021 and end on 14 September 2023. 2. Jake Tony Walden be convicted of aggravated robbery on 7 August 2021 and sentenced to imprisonment for two years and two months, to commence on 15 June 2023 and end on 14 August 2025. 3. Lisa Josephine Walden and Stephen John Walden be discharged from the undertakings that they gave to the Court on 21 December 2021. 4. A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Jake Tony Walden for two years from today, 11 January 2022, to 10 January 2024, in respect of the primary offence of aggravated robbery of which he has been convicted and for which he is being sentenced. 5. That Order be extended to the offence of aggravated robbery of which Jake Tony Walden has been convicted and for which has been sentenced and which will be an associated offence to the primary offence. 6. It be noted that the convictions for the primary offence and associated offence have been recorded and that sentences have been imposed for each of them, which convictions and sentences are hereby incorporated in the Drug and Alcohol Treatment Order in the custodial part of the Order. 7. The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 from today, 11 January 2022, until 14 August 2025. 8. Jake Tony Walden 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 the day after the end of the Drug and Alcohol Treatment Order, 11 January 2024, to the end of the total sentence, 14 August 2025, with a probation condition 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, including as to urinalysis, counselling and treatment. 9. For the Treatment and Supervision part of the Drug and Alcohol Treatment Order: (a) The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 are hereby imposed; (b) That Jake Tony Walden admit himself on 12 January 2022 to Arcadia House, Bruce; (c) That Jake Tony Walden complete the residential drug rehabilitation program at Arcadia House, not leave the facility until he has completed the program and comply with all the directions of the person in charge of the program and the rules of the facility and the program; (d) Should Jake Tony Walden leave or be discharged from the program before completing it, he is to report to ACT Corrective Services by 4:00 pm on the next business day with a view to having his Drug and Alcohol Treatment Order reviewed; (e) Jake Tony Walden undertake any program, treatment, counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team or the Court, and obey all reasonable directions of any member of the Team or the Court about where he resides, with whom he associates and his attendance from time to time; and (f) Jake Tony Walden comply with any directions of the Court from time to time about attendance in Court in person or by electronic means. 10. Jake Tony Walden be directed to appear by electronic means in Court on Friday 21 January 2022 at 12:30 pm. 11. Jake Tony Walden be directed to attend the Court registry before he leaves the Court today to sign a sealed copy of this Order and the undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 for the period that this Order is in force. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Robbery – Sentence of Imprisonment – Drug and Alcohol Treatment Order Application – Subjective Circumstances – Mental Health – Drug and Alcohol Treatment Order Made |
Legislation Cited: | Criminal Code 2002 (ACT) s 310 Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12A, 33, 35, 46J, 46K, 80O, 80W, 80Y |
Cases Cited: | Auld v The Queen [2013] ACTCA 21 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | The Queen (Crown) Jake Tony Walden (Offender) |
Representation: | Counsel C Muthurajah (Crown) J Sabharwal (21 December 2021), T Sharman (11 January 2022) (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Law (Offender) | |
File Number: | SCC 203 of 2021 |
REFSHAUGE AJ:
Introduction
It is surprising and distressing that young people who have many of life’s better opportunities, without the usual precipitators for criminal behaviour, can commit the most serious of crimes, especially when motivated by the misuse of alcohol or other drugs.
Thus, Jake Walden, whose personal history is quite unusually pro-social, has pleaded guilty to two most serious offences of aggravated robbery, for which he must now be sentenced to what would ordinarily be lengthy terms of imprisonment.
On sentencing, the Court received the Crown Tender Bundle, which was tendered without objection. It contained the committal documents and an Agreed Statement of Facts, Mr Walden’s Criminal History, a Victim Impact Statement and photographs of the knives used in the robberies. A portion of CCTV footage of the robberies was played to the Court and the DVD containing that footage was tendered without objection.
Also included in the Crown Tender Bundle were a Drug and Alcohol Treatment Assessment Report dated 24 November 2021 of ACT Corrective Services and a Drug and Alcohol Sentencing List Suitability Assessment, together with a Case Plan dated 8 December 2021, prepared by ACT Alcohol and Drug Services.
Mr Walden gave some oral evidence and a letter he had written to the Court was tendered without objection.
The Victim Impact Statement was read aloud by the Crown prosecutor.
No challenge was made to any of the contents of these documents or to the Victim Impact Statement.
The Court received helpful and insightful written submissions from both Ms C Muthurajah, counsel for the Crown, and Mr J Sabharwal, counsel for Mr Walden. Both were valuably willing to engage in useful discussions with the Court.
On the basis of this material, the Court makes the following findings.
The facts
At about 7:25 pm on 1 August 2021, Mr Walden walked into a suburban pharmacy at Amaroo, ACT. It was, in fact, close to his home and the pharmacy used by his family.
CCTV footage taken from this pharmacy by police showed Mr Walden walking in with no facial covering and with his face easily visible.
He took out of his pocket a folding knife with a blade about 10 centimetres long, walked up to the counter and spoke to the pharmacy assistant. He then went behind the counter, holding the knife at about level with his neck, appearing to be threatening the two staff members in the pharmacy. He asked for “oxy” (namely the prescription-only medication Oxycodone, usually prescribed as oxycodone hydrochloride, an opioid analgesic) and Valium, also a prescription medication, a benzodiazepine drug used to treat anxiety, among other conditions. Both drugs are commonly abused by persons dependent on drugs. He threatened to stab the staff.
He was provided, without prescription, with a partially empty and a full bottle of Mylan Antenex tablets. This is the proprietary name of a drug, the active ingredient of which is diazepam, the same active ingredient as in Valium. He was also given by the pharmacist a box of 28 tablets of Mundipharma OxyContin, the proprietary name of an oxycodone medication.
During the interaction, he did say “I’m sorry, it’s just paying for the fucking dog’s veterinary bills. I’m sorry”. He then left the pharmacy.
The pharmacist and the assistant were obviously affected. There were other staff members and customers in the pharmacy at the time and, indeed, a customer took a video on her mobile phone of the incident.
On 7 August 2021, Mr Walden again entered the pharmacy at about 11:10 am. A different pharmacist and pharmacy assistant were there. Again, the interaction was played to the Court from the pharmacy CCTV. The sequence was very similar, except that, on this occasion, Mr Walden was wearing a mask. In the circumstances, the inference is that this was because of the public health response to the COVID-19 pandemic rather than an attempt at disguise, inept though it would have been for that. There were, again, other persons in the pharmacy as well as the pharmacist and pharmacy assistant.
Mr Walden drew a knife from a dark-coloured sheath on his left hip. It appears from the photographs to be a hunting knife; it certainly looked fierce. It had a wide blade, a sharp point and the blade was about 20 centimetres long.
He walked up to the counter and moved behind it, raising the knife and again demanding “oxy” and “Valium”, saying words to the effect of “don’t be a hero, if you don’t want a hole”.
The pharmacy assistant collected 10 50-tablet bottles of Mylan Antenex and placed them into a plastic carry bag that Mr Walden produced. The pharmacist gave him two 28-tablet boxes of Mundipharma OxyContin and also put them in the bag.
Again, the incident was captured on the pharmacy’s CCTV. The pharmacist, obviously affected by the incident, sat down, clearly distressed, and the pharmacy assistant appeared just stunned.
Police later, on 26 August 2021, executed a search warrant of Mr Walden’s home where he lived with his parents and sister. They located a hunting knife, a black-handled spring-loaded knife, four empty bottles of Mylan Antenex concealed in a wall cavity and an empty bottle of the same medication with a prescription label from the pharmacy dated 21 June 2021.
Mr Walden denied any knowledge of the incident, denied ever carrying or using the hunting knife and denied knowing why the bottles were in the wall cavity.
He was then arrested that day for the aggravated robberies for each occasion, the aggravating factor being that he was armed.
The proceedings
As noted above (at [21]–[23]), Mr Walden was arrested on 26 August 2021 and refused police bail. He appeared in the ACT Magistrates Court on the next day and was charged with two counts of aggravated robbery. No plea was taken and he was refused bail and remanded in custody.
The proceedings were adjourned a number of times and there were negotiations between the parties. Mr Walden remained in custody. It appears that the prosecution Brief of Evidence did not need to be served.
As a result of the negotiations, two summary charges were discontinued and, on 6 September 2021, Mr Walden pleaded guilty to both charges and he was committed for sentence to this Court. He remained in custody.
He appeared in the Supreme Court on 16 September 2021 and was referred to the Drug and Alcohol Sentencing List. On 24 September 2021, an Eligibility Assessment (as to which, see R v McHughes [2021] ACTSC 92 at [7]) for the preparation of a Drug and Alcohol Treatment Assessment (Suitability Assessment) under s 46J of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) was ordered and a date for sentence set for 3 December 2021.
That listing had to be vacated on 12 November 2021 and the proceedings were listed instead for sentence on 21 December 2021. Mr Walden, who had been in custody to that time, was released on bail to appear for sentencing on 4 January 2021.
He has spent 118 days in custody.
The offences
It is necessary now to turn to the nature and circumstances of the two offences, which Mr Walden committed about a week apart.
As indicated in s 33(1)(a) of the Sentencing Act, a court sentencing an offender must have regard to the nature and circumstances of the offences. This also, of course, accords with the common law and with common sense.
In order to give a proper account of these matters, there are three primary aspects. The first is that the nature of the offence can be seen from the legislation creating it, except in the very rare case of a common law offence. This sets out the elements of the offence but also, importantly, the maximum penalty.
This latter consideration has been described by the High Court in many cases as very important in determining the nature of the offence. The legislature thereby sets the democratic assessment of the seriousness of the offence to the community and this is a matter which the courts should not only respect, but have careful regard to it. In addition, it allows the Court to see the nature of the actual case constituted by the circumstances of the offence, as committed by the offender, by comparing it with the worst possible case, and as a result, the Court is then provided, taken on balance with all the other relevant factors, a yardstick. This then enables the Court to place the actual offence for which the sentence must be imposed, in conjunction with the offender’s subjective circumstances, on a “spectrum”, as compared to the worst possible case, of the ways in which and by whom the crime can be committed, as required by the High Court in R v Kilic [2016] HCA 48; 259 CLR 256 at 265–6; [18]–[19].
Aggravated robbery is made an offence by s 310(b) of the Criminal Code 2002 (ACT), which prescribes the maximum penalty of 25 years imprisonment or a fine of $400,000 or both. It is, therefore, not the most serious in the criminal calendar, but it is, nevertheless, a very serious offence.
The elements that are relevant here are that the offender dishonestly appropriates property belonging to someone else with the intention of permanently depriving that other person of the property and, when doing so, before or after, threatens to use force then and there on a victim, and has with him an offensive weapon.
In order to assess the seriousness of the particular case, however, it is important for the Court to have regard to factors which the courts have identified as making the actual case more serious, by aggravating factors, or less serious, by mitigating factors. This is, of course, included in the requirement in s 33(1)(za) of the Sentencing Act to have regard to current sentencing practice.
The Court considered this offence in R v Crawford (No 1) [2020] ACTSC 245. There, as here, a knife was used as the weapon and it was noted that the Court has always regarded knives as serious weapons, the use of which is to be strongly discouraged and which, accordingly, magnifies the seriousness of the offence. As was said by Higgins J in R v Griggs [1999] ACTSC 22 at [41], a knife is “always loaded”. It is capable of killing or committing serious injury.
The New South Wales guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 is helpful in identifying relevant factors. While persuasive in this jurisdiction, it is not necessarily persuasive as to the appropriate sentence: R v Sheather [2021] ACTSC 290 at [32]; Bloxsome v The Queen [2020] ACTCA 52 at [34].
Many of the factors described as the “typical” aggravated robbery in R v Henry are present here. Mr Walden is a relatively young offender, with little criminal history. He used a weapon, namely a knife. There was limited planning and limited actual violence, but threats, which frightened the threatened employees, and a relatively small amount taken.
It is suggested by the Crown, however, that there was some planning. The basis for this submission does not, with respect, seem to be compelling. There were three factors: Mr Walden was a customer of the pharmacy, as indicated by the empty bottle issued to him by the pharmacy under prescription; he had, at some point, a prescription for diazepam and he attended the pharmacy on a bicycle, directly drew the knife and requested specific medication.
It is difficult to see how that shows any particular planning. Indeed, the whole enterprise seems redolent of ineptitude and opportunism. To choose one’s local pharmacy which had previously dispensed the medication, where one might be recognised by someone who had served you before, hardly suggests forethought and takes little planning. He may, of course, have thereby known that the medication was available, but there is nothing to suggest that they were scarce or unusual medications. The opposite proposition can be accepted.
That he went there in the first place with no attempt to hide his identity, went at a time when there were other customers there, including one who, it appears, videoed the offending on her phone, and was clearly in the line of sight of multiple CCTV cameras seems quite inconsistent with planning. It is redolent of opportunism and impulsivity, perhaps reinforced by the apparent problem that he was out of funds because of veterinary bills.
That he asked for “specific medications” seems a little exaggerated in showing that there was planning. He did not use the proprietary names, even though the bottles at home displayed it. He referred to “oxy” and “Valium”, both common names used regularly in the Courts to refer to preferred prescription medications, often procured illegally to be used for drug experiences.
The knives were readily available at home; they appear not even to have needed to be acquired for the purpose of the robberies. That he rode a bicycle to the pharmacy seems a neutral factor, neither evidence of planning nor inconsistent with it.
It is accepted, too, that if Mr Walden moved behind the counter, it positioned him to carry out his threat to the victims if they did not cooperate.
Regrettably, as regularly happens, there was no value given in the evidence to the Court of the medications, but the Court can be satisfied given the uncontested submission of Mr J Sabharwal that “the monetary value of the items was low”, which appears to have been accepted by the Crown when it was submitted that “they were unlikely to have been particularly valuable”. The Court accepts that.
It is noted, too, that, as fairly and properly submitted by the Crown, the circumstances were that, unlike the typical aggravated robbery described in R v Henry, the victims were not particularly vulnerable as there were other people around. Thus, it was a somewhat less serious version of what is still a very serious offence.
The Victim Impact Statements shows that at least one of the victims was seriously affected by the offence, a matter of aggravation. It is accepted that all of the victims would have been distressed, shocked and badly affected by the episode.
Subjective circumstances
The other very relevant factor to be considered on sentencing is the personal circumstances of the offender. These are set out in various paragraphs of s 33(1) of the Sentencing Act. The Court now turns to these matters.
Mr Walden was born 26 years ago to his parents. He has a younger sister. Though the family is described as close-knit and Mr Walden described his home life as supportive, there were disputes between his parents, though no family violence. Mr Walden’s father and mother separated a number of times, the first when he was eight years old. His father left the home when Mr Walden was 10 years old and, after returning, left again when he was about 15 years old, to return when he was 20 years old. This put some stress on Mr Walden, who found it hard to watch his parents fight, but he says that he got used to it. There was no substance abuse at home.
Mr Walden lived with the family before his arrest and, subject to any residential drug rehabilitation, will return to live there. His alcohol and drug use has, nevertheless, placed a strain on the family.
His father has retired and has ongoing health issues. His mother is a public servant with a job share arrangement.
Mr Walden struggled at school, but received much help from his mother. He did well in subjects he cared about, such as woodwork, and performed poorly in more cerebral subjects. He completed Year 9 and, though leaving during Year 10, did receive a Year 10 certificate.
He then worked as a concreter with his father, but had to work 16 hours a day which had a poor effect on his mental health, though he liked the work. He left the work, however, because of the increase of his anxiety and depression. He last worked in 2016 and has been, since then, receiving Centrelink payments.
Mr Walden is single and has no children.
His involvement with alcohol and other drugs commenced early. He first drank alcohol when he was eight years old, but really began drinking when he was aged 16, when employed. He gradually increased his consumption until he was drinking about 2 litres of wine daily. He would stop for a while, about a week or two, and then resume as he felt better. He was drinking right up to the date of his arrest and suggests that he was “really drunk’” at the time of committing the offences.
He started smoking tobacco at about age eight too, smoking regularly by the age of 12, but doing so in secret. He did give it up for a year as a result of health concerns, but resumed and still smokes about 10 to 15 cigarettes a day.
Mr Walden’s use of illicit drugs commenced also at a relatively young age. He was first introduced to cannabis when he was 12 years old and was smoking an ounce weekly by the time he was aged 16. He believes it was largely caused by peer pressure. Again, he stopped using it for about six months or a year in 2020 as a result of a bad panic attack, but resumed use at the beginning of 2021, after he injured his knee. He was using right up to his remand in custody.
He was introduced to heroin when he was 22 or 23 years old, after he had already become a regular user of OxyContin. He smoked every few days from age 24, and has continued to use until his incarceration. It is a significant drug of choice.
Mr Walden has also used methamphetamine from time to time, being introduced to it by his friends when he was 17 years old. Within a year, he was a regular user, both smoking it and using it intravenously, though he says he is “not a big fan of needles”. He continued to use up to the time of his arrest.
He has used amphetamines, MDMA/Ecstasy, LSD and cocaine, but not regularly and, apart from cocaine, which he used about the time of this offence, has not used the other drugs for some years.
He has used a number of prescribed medications obtained illegally, that is without a prescription. These include Seroquel, Xanax and codeine, but he has not used them for some time, save for codeine which he used early in 2021.
He first used oxycodone without a prescription when he was 19 years old. It is sometimes referred to as OxyContin, which has the same active ingredient, oxycodone hydrochloride, but oxycodone is an immediate release tablet, while OxyContin is an extended release formulation. He was using it regularly by age 20, taking 40 milligrams every few days, and had used it a few weeks before his remand in custody.
Mr Walden has quite limited alcohol, tobacco or other drug treatment in the past. He did participate in counselling with a counsellor at Directions Health Services in 2020 for about 20 sessions, but ceased because he did not want to continue. He says he is ready to return to treatment.
In mid-2020, he dislocated his left knee when engaged in kickboxing and, despite some treatment, still suffers pain most days, aggravated by walking, though relieved by rest.
He also had an accident at age 13, when he fell off a BMX bike and hurt his head, but does not report any ongoing consequences.
His mental health is more complicated. He has been diagnosed with a Major Depressive Disorder and Panic Disorder with Agoraphobia. He received some treatment, but by 2018 was disengaged. He has also experienced panic attacks earlier this year.
He has consulted a psychiatrist and a psychologist, but costs limited his ongoing engagement.
He is currently prescribed antidepressant medication.
Mr Walden has a quite limited criminal history, consisting of seven offences, all of which are traffic related. Unsurprisingly, two are drink driving offences and one an offence of refusing to submit to a screening test.
He told the authors of the Suitability Assessments that, when he committed the current offences, he was “really drunk and high on heroin, ice and coke”.
In his letter to the Court, Mr Walden expressed his regret at his behaviour. He showed insight, saying “i [sic] have taken away their [i.e. the victims’] ability to feel safe and that absolutely sickens me”. He recognises that it is something that he “will have to live with for the rest of my life”. He sought a chance to prove that these offences did not show the person that he really was.
While Mr Walden is 26 years old, he is an adult, but a young adult. As explained in R v Tonna (No 2) [2020] ACTSC 362 at [44]–[48], the statutory date of adulthood, namely 18 years, does not end the consideration a court must give to the principles applicable to youth in sentencing. At 26, Mr Walden is likely to be at the upper end of this, but it should not be considered that there is no relevance of these principles, though to a quite limited degree. In Warner (aka Pachenko) v The Queen [2013] NSWCCA 10 at [40], the New South Wales Court of Criminal Appeal held that 28 should generally be regarded as the age of maturity.
As noted above (at [28]), Mr Walden was granted bail pending sentence. As a condition of his bail, he was required to engage in programs with Directions Health Services. He did so and he confirmed that to the relevant officer at ACT Corrective Services, to whom he also explained what he had learned at each session. This is a very limited, but a good sign, that there is action behind the words of his letter to the Court.
Current sentencing practice
Some of the current sentencing practice that the Court is required to consider under s 33(1)(za) of the Sentencing Act when determining the nature of the offences, as explained by current court decisions, has already been identified.
In addition, however, current sentencing practice includes an understanding of the sentences that are currently being imposed. This can generally be addressed in two ways: through sentencing statistics and through consideration of comparable sentencing decisions. Both these methods provide challenges.
Thus, equal justice is part of the basis of the law of criminal sentencing. Consistency of sentencing is a reflection of the notion of equal justice: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at 472–3; [28].
There are, however, difficulties with all this. In the first place, the duty of the judge sentencing an offender is to balance all the relevant factors and then to achieve individualised justice: Elias v The Queen [2013] HCA 31; 248 CLR 483 at 494; [27].
Thus, that sentences should be reasonably consistent does not mean that a judge sentencing an offender may not, within the bounds of reason, impose a different sentence to that which has been imposed elsewhere and which would not, thereby, be clearly wrong (Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537; [54]). After all, no sentence is a precedent: Wong v The Queen [2001] HCA 64; 207 CLR 584 at 605; [57]; Hili v The Queen at 545; [79]).
Nevertheless, while the High Court has generally suggested the statistics are problematic because consistency is not capable of mathematical expression (Hili v The Queen at 535–6; [49]), statistical material can show a pattern of sentencing which may serve as a yardstick by which to assess a proposed sentence (R v Pham [2015] HCA 39; 256 CLR 550 at 565; [47]). This will, however, not be particularly helpful where there are few such sentences, either because the offence is not frequently prosecuted or otherwise (R v Pham at 566; [49]), or where the offence can be committed in a wide variety of ways, such as manslaughter or possession of drugs (R v Bloomfield (1998) 44 NSWLR 734 at 739; El- Ghourani v The Queen [2009] NSWCCA 140; 195 A Crim R 208 at 218; [43]).
Nevertheless, it is accepted that, so long as the limitations are acknowledged (as to which, see R v Novaklovic (a.k.a. Noland) (No 1) [2021] ACTSC 62 at [41]–[42]), they may provide some assistance: Powell v The Queen [2014] NSWCCA 69 at [34]; Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at 74; [41]; R v Lovelock [2014] ACTSC 229 at [13]; and Monfries v The Queen [2014] ACTCA 46 at [86].
Limitations that need to be borne in mind are also that the characteristics recorded in the Sentencing Database are limited: R v Reid (No 1) [2021] ACTSC 334 at [51]. Thus, the plea is recorded and in which Court, an important matter, but a considerable number are listed as “unknown”. Similarly, the offender’s age is also recorded though, again a number are recorded as “unknown”. Helpfully, it is also recorded whether the offender was, at the time, at conditional liberty for aggravated robbery, the type of weapon (if there was one) and the number of offences. Irrelevant information that is useful for criminological studies but not for sentencing is sex and indigenous status. What is not included is, for example, critical matters in relation to dishonesty offences, such as this one, of the value of the property stolen.
The ACT Sentencing Database shows that of 245 sentences recorded for aggravated robbery, five (2%) were Good Behaviour Orders (such as of a young person involved with other older persons and who had no criminal history: R v UB [2019] ACTSC 134), 88 (31.5%) were of terms of imprisonment partially or wholly suspended, six (2.4%) were Intensive Corrections Orders, and 163 (64.2%) were of immediate full-time imprisonment. Of these terms of full-time imprisonment, 80% were between two years and six years imprisonment, but 45.4% were between two years and two months and three years imprisonment.
It is emphasised that these sentences do not provide a mandatory range, or any boundaries.
The other relevant information is from comparable sentences. That is a consideration of actual decisions which permit the sentencer to understand the factual circumstances of the offence and the offender and the principles by which the Sentencing Court arrived at the actual sentences.
Thus, decisions that have common features, such as, in this case, the use of a knife can be helpful. These decisions should, of course, be current sentences as community attitudes change over time: R v Kilic [2016] HCA 48; 259 CLR 256 at 266–7; [21]. Nevertheless, the High Court explained that “in seeking consistency, sentencing judges must have regard to what is done in other cases”: Hili v The Queen at [53].
There have been some helpful decisions of the Court of Appeal. They have been set out in R v Ngata [2015] ACTSC 356 at [69]. Two that seem comparable and helpful are Auld v The Queen [2013] ACTCA 21 and R v Robertson [2010] ACTCA 19. The Court has had regard to both of them.
The Crown also referred to three decisions. Brief reference will be made to each of them.
In R v Sheather [2021] ACTSC 290, Mr Sheather committed an aggravated robbery after being taken to the victim’s home, holding a knife to his throat and demanding the victim’s wallet, phone, car keys and jewellery. He then struck the victim with a frypan and placed his hand around the victim’s neck. He was 22 years old, with a limited criminal record, and struggled with drug dependency. He was sentenced to 28 months imprisonment (not the 25 months referred to by the Crown) for the offence. He was sentenced for other offences also at the same time, making a total term of 37 months imprisonment. There are similarities here, though the violence was somewhat more serious than that used by Mr Walden. The location was also more serious, being a residential property.
In R v Forrest(No 2) [2021] ACTSC 259, Mr Forrest was sentenced for 12 offences, pleading guilty to three counts of aggravated robbery or attempted aggravated robbery. The offences occurred in residential premises and they involved Mr Forrest discharging a gun at a victim whilst stealing her car. He was 27 years old, had a very extensive criminal history and was at conditional liberty at the time. He had a traumatic upbringing, suffering substance abuse and mental health challenges. For each of two of the aggravated robbery offences, he was sentenced to three years and seven months imprisonment and for the third, to three years and 10 months imprisonment. There was considerable concurrency, so that the total sentence for two of the armed robberies was for four years and nine months imprisonment, and a total sentence of 12 years and 10 months imprisonment for all the offences, which involved accumulation for the sentence of attempted aggravated robbery, which was concurrent with the other nine offences. This was more serious in every way than the offences committed by Mr Walden or his personal circumstances.
In R v Nguyen [2021] ACTSC 146, Mr Nguyen attended a bakery with a knife, confronted the victim and stole $360 from the till. He was chased and caught and the money returned. He was 24 years old and using heroin daily. He had a relatively short criminal history, though he had experienced four months imprisonment. He was sentenced to imprisonment for 13 months and two weeks. There is some similarity between this case and that of Mr Walden.
Victim Impact Statement
The pharmacist present when Mr Walden first robbed the pharmacy provided a Victim Impact Statement. There was no request to cross-examine the maker. I have read it very carefully. It will be taken into account in considering the sentence to be imposed. It makes for sobering and distressing reading.
Although working in a Community Pharmacy for 13 years, the maker had never previously experienced such an incident. He expressed the shock he felt when Mr Walden threatened to stab his eyes out. Mr Walden kept the knife at eye level and kept edging closer. He was very intimidated and felt that he could easily have been attacked.
As a result of the incident, he expressed a lot of anxiety. In the weeks following, he lost much sleep and had heart palpitations. He felt constantly unsafe. His fear and threat of other staff increased because of Mr Walden’s return the following week.
The maker was committed to his work, feeling he helped customers, but the incident had such an affect that he considered changing his profession. The incident has changed his life forever.
This statement was helpful to understand the particular harm that Mr Walden’s offence caused.
Consideration
As Hayne J observed in Ryan v The Queen [2001] HCA 21; 206 CLR 267 at 306; [133], “[s]entencing an offender is a very difficult task. It requires consideration and balancing of many different and often conflicting matters”.
In this Territory, this is made a little easier because the legislature has codified in s 7 of the Sentencing Act the purposes of punishment which must guide the Court. The Court takes these into account.
Thus, serious offences such as those committed by Mr Walden require that punishment feature in the sentence, for such substantial and serious breaches of society’s norms require a severe sanction. Further, the sentence must deter others in the community who might be likely to commit such offences.
100. Mr Walden must also see, from the sentence, that he cannot further commit such offences again.
101. These elements of the sentence will, of course, protect the community and especially from Mr Walden, though his rehabilitation will effectively and most surely achieve that, if it can be accomplished. This will be an element, therefore, to be considered in sentencing.
102. Nevertheless, Mr Walden will need to be made accountable by the sentence for his actions and his conduct denounced.
103. Finally, but not in any way insignificantly, the sentence must recognise the harm done to four victims. Notwithstanding that only one has made a Victim Impact Statement, it must be accepted that all have been affected. It cannot be said how each of the others was affected, other than in general terms. The Victim Impact Statement, however, does provide an insight into how seriously such terrifying incidents can affect the victims.
104. Mr Walden pleaded guilty, which must be taken into account (s 33(1)(j) of the Sentencing Act) and under s 35 of the Sentencing Act the Court must consider when he did so, or indicated an intention to do so. The Court must consider whether to impose a lesser sentence than if he had not done so. This, however, must take into account the seriousness of the offence, the effect on the victims and whether the Crown case is “overwhelmingly strong”.
105. Mr Walden pleaded guilty in the Magistrates Court after three adjournments. This appears to have been prior to delivery of the prosecution Brief of Evidence, as there was no plea entered before then. There was some negotiation between the parties, though the Court had no details of that. It is noted that the Crown case was very, very strong. Mr Walden did not, at least on the first incident, disguise his identity in any way, though he was a client of the pharmacy. His face and all his actions that he carried out were very clearly shown on the CCTV footage by the pharmacy. The Court considers the case to be almost, if not quite, overwhelming. That, however, does not mean that no discount should be given for the plea of guilty, but it should not be “a significant reduction”, though it is not clear that this overrides the common law, which recognises the “high policy” of the granting of discounts on sentence as contributing significant value to the criminal justice system: Radebe v The Queen [2001] WASCA 254 at [18]; Hessel v The Queen [2009] NZCA 450; [2010] 2 NZLR 298. This was an early plea of guilty.
106. The plea of guilty was, also, a sign of remorse. It also indicated, especially in the light of the evidence given by Mr Walden, his acceptance of responsibility and a willingness to facilitate the course of justice: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at 411; [115]. It is accepted that Mr Walden is remorseful.
107. He is also seeking treatment for his drug dependency. While he has not managed to gain access to the Solaris Therapeutic Community (as to which, see R v JM [2014] ACTSC 380 at [26]) while he is in custody, his evidence is that he had sought admission but that it had not eventuated, possibly because of the response to the COVID‑19 pandemic. Nevertheless, he had earlier experiences of treatment which have been effective for a time, though obviously not giving him an adequate relapse prevention program. He was assessed as pretty motivated to address his drug dependency.
108. The reason for his offending, Mr Walden said in evidence, which was not challenged, was that he wanted to get drugs. It was, the Court accepts, to use them personally. He said to the author of a Suitability Assessment that he was really affected by drugs and alcohol at the time and he “did not want to come down”, so he sought further drugs.
109. He cooperated with the preparation of the Suitability Assessments, presenting as “interested and engaged”. He was polite and forthcoming with information requested. This is how he presented in his evidence before the Court.
110. As noted, the harm done to the victims is an important sentencing consideration and it will be taken it into account. The Victim Impact Statement received does paint a vivid and distressing picture of what the victim of an aggravated robbery suffers and how it can have lengthy and life-changing effects. This will be reflected in the sentence.
111. The Court takes into account, as well as these matters, the nature and circumstances of the offences as they have been described, and especially the seriousness of both his offences and as actually committed. The Court also takes into account the personal circumstances of Mr Walden, as they have been described. It is noted that, while he enjoyed a supportive and loving home life, he did face challenges and some instability which is relevant, though it cannot be described as childhood disadvantage. The Court also takes into account that, while he has some prior offences on his record, none of them are near the seriousness of these offences, which suggests that there is an opportunity for his reform and to stop the criminality before it escalates.
112. Having regard to all the alternatives available, the Court considers that only a sentence of imprisonment is just and adequate: s 10 of the Sentencing Act.
113. There are, of course, two offences and a just and appropriate sentence must be imposed on each of them, as explained in R v McKenna [2022] ACTSC 346 at [96]–[97]. It is important, however, that Mr Walden is not punished twice for the same criminality, or where there are common elements. This is not considered to be particularly relevant here and no submission was made to that effect.
114. The Court must also consider whether the sentences should be partially or wholly concurrent because, for example, they are part of the same course of conduct or contain common elements. This is not applicable here.
115. The Court must then consider the length of the total sentence to ensure that the principle of totality is respected and that the total sentence arrived at adequately reflects the criminality of the offending actually committed, but not more than that, and that the total sentence is not excessive, but will leave open the realistic prospect of reform and maintain the hope that Mr Walden will take an effective part in the community in a drug and crime free way, as well as achieving his aims and aspirations when he is released.
116. This may result in what is seen by some as leniency, in that the sentences are partly concurrent, but while the total criminality of Mr Walden is a critical factor, his rehabilitation is also important, as is the early introduction of him to drug and alcohol use at a time when he was unlikely to be in a position to make an informed decision about what he was doing. This requires a sentence proportionate to his culpability for the crime and its effect on victims and the community, but also to Mr Walden’s subjective circumstances and the value of reform to both the community and to himself.
[His Honour then spoke directly to the offender]
117. Mr Walden, please stand.
118. The orders of the Court are as follows:
1) You are convicted of aggravated robbery on 1 August 2021 and sentenced to imprisonment for two years, to commence on 15 September 2021 and to end on 14 September 2023, to take into account pre‑sentence custody. Had you not pleaded guilty, you would have been sentenced to two years and nine months imprisonment.
2) You are convicted of aggravated robbery on 7 August 2021 and sentenced to imprisonment for two years and two months, to commence on 15 June 2023 and end on 14 August 2025. That is to be concurrent as to three months on the sentence for the first aggravated robbery. Had you not pleaded guilty, you would have been sentenced to three years imprisonment.
3) Lisa Josephine Walden and Stephen John Walden are discharged from the undertakings that they gave to the Court on 21 December 2021.
119. Mr Walden, you may be seated.
Drug and Alcohol Treatment Order application
120. Mr Walden has asked that he serve his sentence through a Drug and Alcohol Treatment Order. In order to consider this, the Court must first determine whether he is eligible and then, if so, the Court must decide whether it is appropriate for such an Order to be made.
121. The eligibility requirements are principally set out in s 12A of the Sentencing Act, and each of them will be considered. Mr Walden has been sentenced, on his plea of guilty, to two years and two months imprisonment for the second aggravated robbery. This is greater than the minimum period of 12 months imprisonment to which an offender must be sentenced to be eligible. The total sentence for both offences, however, is of three years and 11 months imprisonment, which is less than the maximum period of four years imprisonment for eligibility.
122. Mr Walden is not subject to any other sentencing order within the meaning of s 12A of the Sentencing Act.
123. The Suitability Assessments of Alcohol and Drug Services assessed Mr Walden as likely to have a severe substance use disorder at the time of his offending, which is consistent with his evidence. He also said to them that he was intoxicated with drugs and alcohol at the time of the offending and that he was committing the offences to obtain drugs. Accordingly, the Court is satisfied, on the balance of probabilities, that he is dependent on heroin and benzodiazepines and that his dependence substantially contributed to the commission of these offences.
124. Mr Walden, it is also satisfactorily shown, will be resident in the ACT for the term of the sentence that has been imposed.
125. Mr Walden has signed a form consenting to the making of a Treatment Order and on that basis, with no contrary evidence or submission, the Court finds that he was, before consenting, given a clear explanation of a Treatment Order with sufficient information for him to make a balanced judgment about whether or not to consent to serving his sentence under a Treatment Order, and that he has had an opportunity to ask any questions about such an Order and that any questions have been answered, which answers Mr Walden appears to understand.
126. Accordingly, the Court is satisfied that Mr Walden is eligible to be subject to a Treatment Order for serving his sentence. Consideration must now be given to whether an Order is appropriate with regard to, amongst other things, the relevant sentencing considerations applying to the offence.
127. Despite the Court having a Victim Impact Statement, no concerns have been expressed to it about the safety or welfare of any victims needing to be taken into account in sentencing.
128. The Suitability Assessments have been carefully read and considered. They are, as this Court is accustomed to receive, expert, comprehensive and thoughtful reports which are of great assistance in considering whether it is appropriate to make the Treatment Order and whether this will achieve the objects set out in s 80O of the Sentencing Act.
129. The Suitability Assessment of Alcohol and Drug Services recommends that, on the basis of their analysis, Mr Walden is suitable for a Treatment Order.
130. The Suitability Assessment of ACT Corrective Services recommends that Mr Walden is not suitable for a Treatment Order, but on the basis of “ongoing mental health issues”.
131. Mr Walden’s mental health history is complex and, as reported, “has been impacted by his drug and alcohol abuse”. It is suggested that he has a “level of reliance on his family members to assist him with daily tasks before leaving the house”. A question was raised about whether this might prevent him from being able to comply with the strict conditions of a Treatment Order.
132. He has, however, access to a private psychologist and, it appears, a psychiatrist in Dr John Saboisky, though there had been some issues in contacting him. There are not really any details about that before the Court.
133. These issues raised by ACT Corrective Services were not directly addressed, though Alcohol and Drug Services in its Suitability Assessment did consider in detail the mental health issues. Some of that information was concerning. For example, Dr Saboisky, Mr Walden’s mother advised, has not been able to be contacted in February 2021 to make up a follow-up appointment and the sessions with a private psychologist were terminated because of cost and affordability. Nevertheless, Mr Walden has undertaken some of the obligations he would have to meet if a Treatment Order was made. He did attend counselling at Directions Health Services and it was described as “helpful”.
134. The author of the Suitability Assessment of Alcohol and Drug Services contacted a criminal neurologist who also advised “there was nil evidence of neurodevelopmental disorder”, and a paediatrician had ruled out Attention Deficit Hyperactivity Disorder. There was “nil evidence of acquired brain injury”, and that “a neuropsychology assessment is not warranted at this stage”. Nevertheless, ongoing monitoring and management of his mental health was warranted.
135. As Mr Walden was remanded in custody, it was not possible for the authors of the Suitability Assessments to assess his likely compliance in attending appointments. The authors of both reports, however, were satisfied of his participation in the preparation of the Suitability Assessments, providing the requested information. The Alcohol and Drug Services reported that he presented “as interested and engaged in the assessment”.
136. The Case Plan, however, recommends a short-term residential drug rehabilitation placement which is available tomorrow. It also recommended a psychiatric review with an addiction specialist.
137. Unfortunately, the issue of his mental health was not addressed in the oral evidence he gave.
138. It is noted, too, that while Mr Sabharwal submitted that a Treatment Order be made, the Crown did not make a submission that Mr Walden was ineligible for a Treatment Order.
139. The recommendation of ACT Corrective Services that Mr Walden “may benefit from a period of supervision by ACT Corrective Services under a different community supervision order with stringent conditions, while allowing for direction to engage with appropriate treatment” provides for some validity. On the other hand, it does not have the advantage of a period of residential drug rehabilitation which will test Mr Walden and allow him to address his relapse in a very concentrated way and gain some insight into his situation.
140. In part, though the Court accepts it is a very limited part, this concern has been tested in that Mr Walden was granted bail, as noted above, with conditions requiring attendance at online programs and reporting. He has complied with these obligations and, according to the reports, did so well. This is a small but optimistic sign of his commitment and ability to comply.
141. While the referral to a residential drug rehabilitation program will assist considerably, there is no guarantee, of course, of any success.
142. The recommendation also referred to a system that could be provided to Mr Walden to be assessed for the National Disability Insurance Scheme to aid with support, such as transport, respite and support to attend appointments. This can be undertaken under a Treatment Order if required.
143. Weighing all these matters, the Court considers that it is appropriate to make a Treatment Order. While there is no guarantee of success, the opportunity for judicial supervision is quite significant and permits the modification of program responsibilities if they become too onerous, so long as the objective, namely facilitating Mr Walden’s rehabilitation and reducing his dependency on drugs, can be met.
144. The issues properly raised by ACT Corrective Services must be borne in mind, however, but the Court does not consider that they make a Treatment Order inappropriate.
145. None of the indicators of unsuitability set out in table 46K of the Sentencing Act are made out to any reasonable level of satisfaction.
146. Accordingly, the Court is satisfied that Mr Walden is suitable for a Treatment Order and that it is appropriate that one be made.
Drug and Alcohol Treatment Order
[His Honour then spoke directly to the offender]
147. Mr Walden, please stand.
148. The orders of the Court are as follows:
4) A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for two years from today, from 11 January 2022 to 10 January 2024, in respect of the primary offence of aggravated robbery for which you have been convicted and for you are being sentenced.
5) That Order be extended to the offence of aggravated robbery of which you have been convicted and for which you have been sentenced and which will be an associated offence to the primary offence.
6) It is noted that the convictions for the primary offence and associated offence have been recorded and that sentences have been imposed for each of them, which convictions and sentences are hereby incorporated in the Drug and Alcohol Treatment Order in the custodial part of the Order.
7) The custodial part of the Drug and Alcohol Treatment Order for the primary and associated offences is hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 from today, 11 January 2022, until 14 August 2025.
8) You are 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 Drug and Alcohol Treatment Order, that is 11 January 2024, to the end of the total sentence, 14 August 2025, with a probation condition that 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 urinalysis, counselling and treatment.
9) For the Treatment and Supervision part of the Drug and Alcohol Treatment Order:
a) The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 are hereby imposed;
b) That you admit yourself on 12 January 2022 to Arcadia House, Bruce;
c) That you complete the residential drug rehabilitation program at Arcadia House, not leave the facility until you have completed the program and comply with all the directions of the person in charge of the program and the rules of the facility and the program;
d) Should you leave or be discharged from the program before 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;
e) You are to undertake any program, treatment, counselling, urinalysis or case management that may be required by any member of the Treatment and Supervision Team or the Court, and obey all reasonable directions of any member of the Team or the Court about where you reside, with whom you associate and your attendance from time to time; and
f) You are to comply with any directions of the Court from time to time about attendance in Court in person or by electronic means.
10) You are directed to appear by electronic means in Court on Friday 21 January 2022 at 12:30 pm.
11) You are directed to attend the Court Registry before you leave the Court today to sign a sealed copy of this Order and the undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 for the period that this Order is in force.
149. Mr Walden, that is a lot of words about what happened. You will appreciate a lot of it because it is about what you did on these terrible days and it is about your circumstances. I have assessed the seriousness of your offending and it is worthy of a long sentence of three years and 11 months in total in prison, but I do not require you to serve any more time in prison because I have made a Drug and Alcohol Treatment Order.
150. That is an Order that will assist you to come to terms with your drug dependency and hopefully lead to you living a drug and a crime free lifestyle, so that you can actually be the person you want to be, that you can have a family if you want, that you can engage in work if you want, and that you can develop your potential and be a sensible and productive member of the community.
151. I have no illusions about it. It will be hard. It will be difficult. You have done it before, but you relapsed, and of course relapse is what we want to try and avoid in this process. There will be times when you will think it is not worth it, but if you commit yourself and you put some energy into it then you will find it is worth it. People who have gone through these programs have found that they can live those kind of lives at the end of the day.
152. The worst thing you can do is put your head in the sand. If things get too tough, do not run away. Come back to Court. One of the important things about this program is you will see me every week for some months. That is an opportunity for me to see how things are going. If things are not going well, it is an opportunity to right what is going wrong and see if we can get it back on track.
153. It is also an opportunity for you to raise with me any difficulties. As a Judge, I have got quite considerable power. I cannot solve everything, but it is amazing what can be solved if there are difficulties, and I can at least encourage you to face them. Facing difficulties and surmounting them will make you stronger, and that, indeed, is part of the way in which you will be prevented from relapsing down the track.
154. If you do leave Arcadia, or if you do not comply with your obligations, come back. Do not run away. You will be arrested. If you have run away, the likelihood is that I will have to cancel the Order and you will have to spend the rest of the three years and 11 months in prison. I do not say that to frighten you, but you need to understand the consequences, and those are the consequences.
155. Not everything can be resolved and at the end of the day it may be that the Order has to be cancelled, but we work very hard to avoid that and you have got some experienced and very knowledgeable and helpful people in the Treatment and Supervision Team who can assist you in working this through.
156. A really important matter is honesty. You will not get through unless you are honest. That means being honest with your counsellors, with the people that you are dealing with and with the people who are assisting you. It also means being honest with yourself. It is very easy to say “oh, it wasn’t that bad”. Be clear eyed. If it was that bad, acknowledge that you failed, that you have done something stupid or bad, or wicked, or worse. Recognise it for what it is and recognising it means that you can move beyond it. You are not a bad person, you have done bad things. Recognising that they are bad and moving beyond them is a really important way for you to address your drug dependency and your criminal activity.
157. You are just at the stage now where you have had some pretty minor offending in the past and suddenly your offending is much more serious. This is the first time you have been in the Supreme Court. Three years and 11 months is a long time. This is the opportunity for you now to turn away from the revolving door of crime.
158. So, take this opportunity. We will do our best to help you, but in the end you have to do it yourself. Take the help, it will assist you. It will make it easier for you to achieve what you need to do.
159. You are off to Arcadia tomorrow. Work hard there. Overcome the challenges. It will all be different and new, and it will be a challenge, but overcome those. You will see me on 21 January by AVL and then later in person, when you leave Arcadia House. Raise any difficulties you have got there.
160. If you are uncomfortable about doing it in the circumstances and want to do it privately, then arrangements can be made for that. You will need to talk to your lawyer. It will not be Mr Sharman and the others of his team who have acted for you so well. You will now be represented by Legal Aid, but you can make contact with them through your Case Manager and work that out.
161. It is important to take this opportunity. I hope it works for you and for your family to whom you owe a lot, and I hope it works for the community. I wish you every luck.
162. You may be seated.
| I certify that the preceding one hundred and sixty-two [162] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Refshauge Associate: Date: 13 December 2022 |
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