R v Wallace (No. 2)
[2016] ACTSC 38
•2 March 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wallace (No. 2) |
Citation: | [2016] ACTSC 38 |
Hearing Date: | 5 February 2016 |
DecisionDate: | 2 March 2016 |
Before: | Refshauge J |
Decision: | 1. The Good Behaviour Order of 20 December 2013 be cancelled. 2. The conviction for aggravated burglary (CC13/06186) on 20 July 2012 is confirmed. 3. Mr Wallace be sentenced to two years imprisonment. 4. The sentence be suspended from today, 2 March 2016, for twelve months, having regard to the prior period of the suspended sentence. 5. Mr Wallace be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) for twelve months from today with a condition that he be under the supervision of the Director-General or her delegate for twelve months or such lesser period as the person supervising him considers appropriate and that he obey all reasonable directions of the person supervising him especially as to treatment or counselling for drug issues, mental health issues and anger management. 6. Mr Wallace pay a fine of $500 within nine months. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – re-sentencing – aggravated robbery – breach of Good Behaviour Order – failure to complete community service work condition – Good Behaviour Order expired – cancellation of Good Behaviour Order – recognition of breach in re-sentencing |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 102, 110 Crimes (Sentencing) Act2005 (ACT), s 33 |
Cases Cited: | Guy v Anderson [2013] ACTSC 5 Markarian v The Queen (2005) 228 CLR 357 |
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 July 2012, Dylan Wallace and two co-offenders entered residential premises in Mawson, ACT.
Mr Wallace and his co-offenders had been told by a person earlier that evening that the victim of the offence was in possession of money and drugs that did not belong to him and this person had encouraged them to commit the offence to obtain the money and drugs which were to be given to the person in return for some money.
The three offenders travelled to Mawson and entered the victim’s unit. The co-offenders rushed to the victim, striking him in the face and head with fists. Mr Wallace did not personally inflict any of the violence. He ran around the apartment searching for the drugs. He was unsuccessful.
Mr Wallace was later summonsed to appear in court and on his first appearance pleaded guilty, consistent with admissions he had made to police when he voluntarily attended at City police station and gave an interview which included full admissions, including as to the involvement of his co-offenders.
On 20 December 2013, I sentenced Mr Wallace on his plea of guilty. I sentenced him to two years imprisonment to be suspended for two years and made a Good Behaviour Order containing a probation condition and a community service work condition that he perform 250 hours of community service work within 15 months: see The Queen v Wallace [2013] ACTSC 284.
Mr Wallace failed to complete the community service work condition and, on 26 February 2015, an information was laid under s 102 of the Crimes (Sentence Administration) Act 2005 (ACT), that Mr Wallace was in breach of the Good Behaviour Order.
At that stage, he had only performed 46 hours of the 250 hours of community service work that was a condition of the Good Behaviour Order. He was, at the time, couch surfing and unable to be brought before the court and a warrant was issued as a result of the information laid before me. He was arrested and appeared before me on 4 August 2015.
I then granted him bail with a condition that he complete the community service work condition of the Good Behaviour Order. I noted that he had committed no further offences, been generally employed since I had sentenced him and had had significant difficulties with accommodation which had, no doubt, led to the problems ACT Corrective Services had in contacting him. See R v Wallace [2015] ACTSC 234.
Accordingly, it seemed to me that he should be given the opportunity to complete his community service work before I considered how to respond to the breach of the Good Behaviour Order.
I adjourned the matter to 21 October 2015 and, on that day, was advised that he had attended ACT Corrective Services as directed, signed a work instruction directing him to attend community service work and, since that time, had completed 72 hours of community service work.
He was unable to attend community service work on three occasions, providing a medical certificate to verify his illness preventing him from attending.
Employment arrangements prevented him attending on one further occasion and on one occasion he failed to attend community service work and failed to notify of his inability to do so.
He also attended on one further occasion advising that he was unable to attend community service work and provided a medical certificate. At that stage, he had 132 hours of community service work remaining.
On one occasion he returned a positive result for codeine, morphine and cannabis on urinalysis. His response to supervision was noted at that time as “borderline”.
Nevertheless, I adjourned the proceedings to 2 February 2016 to ascertain whether he was able to complete his community service work. Unfortunately, Mr Wallace did not appear on that day and I adjourned to 5 February 2016.
On 5 February 2016, Mr Wallace appeared. At that stage, he had 56 hours of community service work remaining and I directed that he complete that work in the meantime.
He has now appeared before me as a consequence. I have a certificate that he is now completed the 250 hours of community service work.
The Good Behaviour Order has now expired but Mr Wallace admitted the breach that he had not completed the community service work condition within the two year period.
As a result, under s 110 of the Crimes (Sentence Administration) Act, I am required, on finding the breach, to cancel the Good Behaviour Order. Accordingly, I find that he breached the Good Behaviour Order I made on 20 December 2013.
There is, of course, a somewhat odd conceptual difficulty in cancelling an order that has already expired. Nevertheless, the cancellation of the order is the factum upon which I can take action.
Under s 110 of the Crimes (Sentence Administration) Act, I have the alternative of re-sentencing Mr Wallace or, alternatively, imposing the sentence that was suspended.
Consideration
In Saga v Reid [2010] ACTSC 59 at [99]-[101], I reviewed various authorities and concluded that the failure of a court to act where there has been a clear breach of the conditions of a Good Behaviour Order is highly likely to bring suspended sentences into disrepute as, indeed, has happened in various jurisdictions.
Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]-[87], there is no presumption in this jurisdiction that the sentence of imprisonment that was suspended should be imposed.
In this case, despite the difficulties Mr Wallace has had with drugs, he has committed no further offences. Commission of further offences is a very serious breach of the trust that a Good Behaviour Order reposes in an offender who escapes full-time imprisonment by virtue of the suspended sentence, allowing the offender to serve the sentence in the community.
He has now completed the community service work, though it has been well after the time that I limited in the sentence I imposed.
Some of the delay has been caused by Mr Wallace’s failure to engage properly with the authorities but, especially more recently, health problems and employment have also made it somewhat difficult.
He cannot be held responsible for his health problems and employment, while it should not prevent him from completing his community service work, it is an important factor in rehabilitation.
In those circumstances, it seems to me that I should re-sentence Mr Wallace, rather than impose the period of imprisonment that was suspended. No contrary submissions were made by the Crown.
Nevertheless, in re-sentencing Mr Wallace, I should take into account the fact that he has failed to meet the trust I reposed in him by suspending the sentence which required me to make the Good Behaviour Order, which he has not complied with as fully as expected. The compliance has come, but late.
When re-sentencing Mr Wallace, the principles set out in the Crimes (Sentencing) Act 2005 (ACT) apply. I take into account the principles of sentencing set out in that Act.
In a case such as this, an element of general deterrence is important. Some element of specific deterrence is relevant in this case to make it clear to Mr Wallace that he has committed a very serious offence, particularly judged by the maximum penalty. See Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[31]. The circumstances of the offence itself, as I described them in The Queen v Wallace [2013], show that they were a relatively serious version of the offence.
The victim’s obvious distress at the home invasion should also be vindicated.
Nevertheless, Mr Wallace pleaded guilty at an early stage. He voluntarily surrendered himself to police, who decided not to arrest him but to issue a warrant, and he pleaded guilty at the earliest opportunity.
Having regard to these factors, it seems to me that a sentence of imprisonment is appropriate. Indeed, it was the only proportionate sentence to the offending but the real question is then how it should be served.
Mr Wallace was, at the time of the offending, a relatively young man. He had good subjective circumstances which I have set out in my sentencing remarks. See R v Wallace [2013] at [12]-[27].
I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act, so far as I know them. They are set out above and also in my earlier sentencing remarks.
I also referred to the need for rehabilitation.
Mr Wallace has had some episodic drug taking since he was sentenced by me which, as I pointed out in Saga v Reid, can be a pernicious addiction which takes time and effort to manage.
Nevertheless, Mr Wallace has not committed any other offences and, to that extent, is a good candidate for rehabilitation, especially having regard to his lack of criminal history.
Accordingly, it seems to me that the sentence of imprisonment should be suspended and a Good Behaviour Order made.
I am aware that, apart from the breach of the community service work condition, a not insignificant breach in itself, Mr Wallace has otherwise completed the Good Behaviour Order. In my view, this can be taken into account in setting the term of a Good Behaviour Order in relation to the suspended sentence as I have regard to the conditional liberty to which he was subject prior to the sentencing. See my remarks in R v Kekailanen (No. 2) [2015] ACTSC 369 at [48] and the authorities there cited. Although that case applied to custodial periods of sentence, it seems to me that it also applies to the service of a Good Behaviour Order.
Nevertheless, some recognition must be given to the fact of the breach. Further, it would be inappropriate for me simply to sentence him to a further period of community service work in the same terms as before, even though that was then appropriate in the earlier sentence. His completion of the community service work is to be taken into account and I do that expressly here, although it will not appear within the sentence.
Mr Wallace, please stand.
1. I cancel the Good Behaviour Order of 20 December 2013.
2. I confirm the conviction for aggravated burglary on 20 July 2012.
3. I sentence you to two years imprisonment.
4. The sentence is suspended from today for 12 months, having regard to the prior period of the suspended sentence.
5. You are required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for 12 months from today with a condition that you be under the supervision of the Director-General or her delegate for 12 months or such lesser period as the person supervising you considers appropriate, and that you obey all reasonable directions of the person supervising you, especially as to treatment or counselling for drug issues, mental health issues and anger management.
6. I order that you pay a fine of $500 within nine months.
[His Honour then spoke directly to Mr Wallace]
Mr Wallace, you understand what I have done I am sure but I am obliged to explain it briefly to you. I confirm the conviction and I have indicated, as I did before, that two years imprisonment was appropriate. I have reduced that from three years imprisonment because of your plea of guilty. The sentence is suspended from today for 12 months. Previously it was suspended for two years. I take into account that you were on conditional liberty for a lengthy period of time and, apart from the slackness with which you approached the community service work condition, you complied with the other conditions of the Good Behaviour Order, including, significantly, not committing any further offences.
I think it is not inappropriate in the circumstances, because there are still drug issues and mental health issues that I am not sure have been addressed, that you should be under supervision for a period of time, but that may be ended and you ought to think seriously, if you are going to start life again in Melbourne, about getting yourself clean and ready to do that by addressing those issues and a probation officer can help you address those.
In order to mark the seriousness of the offence and the fact that you breached my trust by not completing the community service order until we, I suppose, dragged you kicking and screaming to do so (that is a bit unfair because you were willing to do it, although it took a bit of judicial encouragement to do so) I fine you $500 to be paid within nine months. That is to be paid to the registrar. You can do that by instalments, if that is useful. If things get tough later on, you can seek an extension of time and you can speak to your counsel about that.
Mr Wallace, hopefully that is the end of your involvement in the criminal justice system. You seem to me to be a young man who has a good future ahead of you. You seem to be enthusiastic and keen to get employment, move to Melbourne and sort yourself out there.
Get yourself sorted out here with the assistance of Probation and Parole. As I have said before, there is an element of control in that but there is also someone who has some knowledge of agencies who can assist you if things go wrong, there is someone independent that you could speak to and see if you can sort those things out before you get stuck.
This was a really serious offence. Ordinarily, people would go to gaol for it. You have escaped that, and I think properly so, and you have justified that generous decision but your compliance has not been perfect and you have reaped the consequences of that.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Refshauge Associate: Date: 21 March 2016 |
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