R v Wallis - [2022] ACTSC 140

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Wallis
Citation:	[2022] ACTSC 140
Hearing Dates:	21 April, 6 May 2022
DecisionDate:	10 June 2022
Before:	McCallum CJ
Decision:	For the three offences to which he pleaded guilty the offender is convicted. For count 1, the offender is sentenced to a term of imprisonment for 14 months. For count 2, the offender is sentenced to a term of imprisonment for 14 months. For count 3, the offender is sentenced to a term of imprisonment for two years. In each case the sentence commences today, 10 June 2022. Direct that the offender be released after serving 12 months of his sentences upon his entering into a bond to be of good behaviour for a further 12 months and giving security of $10,000.
Catchwords:	CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — Offences of dishonestly causing loss to a Commonwealth entity and using a forged document to obtain gain —Where offender held position of trust — Whether prison would be experienced more harshly by offender — Where offender suffered mental illness — Where offender immunosuppressed in context of COVID-19 pandemic
Legislation Cited:	Crimes Act 1914 (Cth), ss 16A, 19AC Criminal Code Act 1995 (Cth), ss 135.1(3), 145.1(1) Science and Industry Research Act 1949 (Cth), s 9
Cases Cited:	R v Host [2015] WASCA 23 R v Qutami (2001) 127 A Crim R 369
Parties:	The Queen ( Crown) Mark Wallis ( Offender)
Representation:	Counsel N Purvis ( Crown) M Jones SC ( Offender)
Solicitors Commonwealth Director of Public Prosecutions ( Crown) Kamy Saeedi Law ( Offender)
File Number:	SCC 42 of 2021

McCALLUM CJ:

This case presents a difficult sentencing exercise. The offender, Mark Stuart Wallis, has pleaded guilty to three federal offences:

(a)that between about 1 July 2012 and 19 June 2017, he dishonestly caused a loss to a Commonwealth entity, contrary to s 135.1(3) of the Criminal Code Act 1995 (Cth), carrying a maximum penalty of imprisonment for 5 years;
(b)that between 27 July 2016 and 20 September 2016, he dishonestly caused a loss to a Commonwealth entity, contrary to the same provision of the Code, and carrying the same maximum penalty.
(c)that between about 15 October 2015 and about 29 March 2016, he intentionally used a forged document to obtain a gain, contrary to s 145.1(1) of the Code, carrying a maximum penalty of imprisonment for 10 years.

The arraignment process revealed a dispute as to the period during which the offending in count 1 occurred. I accept that it is a narrower period than stated in the indictment, the true period being revealed by a schedule to the agreed statement of facts.

The pleas of guilty were entered shortly after a criminal case conference convened in this court. The Crown submits that the discount to be allowed on that basis should be tempered by the fact that there was a strong Crown case. Nonetheless, the trial would have been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: R v Wallis [2022] ACTSC 140
Case: [2022] ACTSC 140
Decision Date: 10 June 2022

CaseChat Overview and Summary

In the Supreme Court of South Australia, the defendant, Wallis, faced conviction and sentencing for three separate offences. Wallis had pleaded guilty to dishonestly causing loss to a Commonwealth entity, using a forged document to obtain gain, and another offence of similar nature. Wallis had held a position of trust during the time of the offences. The court had to consider whether Wallis would experience prison more harshly than other offenders, given his mental health issues and his status as immunosuppressed amidst the COVID-19 pandemic. The court also needed to determine the appropriate sentence for each offence, taking into account the totality of the offending.

The court acknowledged that Wallis's position of trust and the nature of his offences warranted a custodial sentence. However, it also considered the significant personal circumstances of the offender. Wallis's mental illness and immunocompromised status due to the COVID-19 pandemic were factors that made the prospect of imprisonment particularly harsh. The court balanced these considerations with the need to uphold the deterrent effect of criminal sentencing and to reflect the seriousness of the offences. In determining the length of each sentence, the court gave weight to the cumulative impact of the offences and the need for general deterrence.

The court concluded that Wallis's offending warranted a significant term of imprisonment but recognised the exceptional personal circumstances of the offender. For the first two offences, the court imposed a sentence of 14 months imprisonment each, and for the third offence, a sentence of two years imprisonment. The court ordered that Wallis be released after serving 12 months of his sentences, on condition that he enter into a bond to be of good behaviour for a further 12 months and provide security of $10,000. The sentences were designed to balance the need for punishment and deterrence with the need to protect Wallis's health and well-being.

Orders

Orders of the court

For the three offences to which he pleaded guilty the offender is convicted. For count 1, the offender is sentenced to a term of imprisonment for 14 months.

For count 2, the offender is sentenced to a term of imprisonment for 14 months.

For count 3, the offender is sentenced to a term of imprisonment for two years. In each case the sentence commences today, 10 June 2022.

Direct that the offender be released after serving 12 months of his sentences upon his entering into a bond to be of good behaviour for a further 12 months and giving security of $10,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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