R v Walters
[2018] ACTSC 17
•18 January 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Walters |
Citation: | [2018] ACTSC 17 |
Hearing Dates: | 12 December 2017 and 10 January 2018 |
DecisionDate: | 18 January 2018 |
Before: | Burns J |
Decision: | See [43]-[57] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – four charges of dishonestly driving a motor vehicle belonging to someone else – two charges of aggravated burglary – one charge of theft – two charges of by deception dishonestly obtaining property – one charge of dishonestly ride in a motor vehicle by deception – one charge of damaging property belonging to someone else – additional offences to be taken into account – three summary charges – maximum penalties – pleas of guilty – criminal history – Pre-Sentence Report – CADAS Report – objective seriousness – rehabilitation – general and specific deterrence – whether it is necessary to consider parity – totality – terms of imprisonment – desirability of residential rehabilitation program – non-parole period – reparation orders made |
Legislation Cited: | Criminal Code 2002 (ACT) ss 208, 312, 318, 324, 326, 361, 403 Drugs of Dependence Act 1989 (ACT) s 169 Magistrates Court Act 1930 (ACT) s 90B |
Parties: | The Queen (Crown) Brendon Walters (Offender) |
Representation: | Counsel Ms S Naidu (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender) | |
File Numbers: | SCC 141 of 2017; SCC 141A of 2017; SCC 142 of 2017 |
BURNS J:
Brendon Walters, you have entered pleas of guilty to the following charges:
· on 30 January 2017, you dishonestly drove a motor vehicle belonging to someone else (XO2018/31269);
· on 18 February 2017, you dishonestly drove a motor vehicle belonging to someone else (XO2018/31270); and
· on 23 March 2017, you again dishonestly drove a motor vehicle belonging to someone else (XO2018/31271).
Each of those charges are contained in an ex officio indictment which has the Supreme Court number SCC 141A of 2017.
In addition, you have entered pleas of guilty to the following charges:
· one charge of aggravated burglary on 24 March 2017, the circumstance of aggravation being that you were in company with a juvenile co‑offender. This is charge number, using the Magistrates Court numeration, CC 3742 of 2017;
· one charge of theft on 24 March 2017, charge number CC 3743 of 2017;
· one charge of dishonestly driving a motor vehicle belonging to another on 24 March 2017, being charge number CC 6230 of 2017;
· one count of by deception dishonestly obtaining property on 24 March 2017, being charge number CC 6262 of 2017;
· a further charge of dishonestly obtaining property by deception on 24 March 2017, being charge number CC 6260 of 2017;
· one charge of dishonestly riding in a motor vehicle belonging to another on 29 March 2017, being charge number CC 3746 of 2017;
· one charge of aggravated burglary on 29 March 2017, the circumstance of aggravation being that you were in company with a juvenile co‑offender, being charge number CC 3744 of 2017; and
· one count of damaging property belonging to someone else on 29 March 2017, being charge number CC 3745 of 2017.
Each of those charges is contained within the indictment on Supreme Court file SCC 141 of 2017.
In addition, you ask that in sentencing you for the offence of dishonestly driving a motor vehicle on 18 February 2017, I take into account offences of:
· negligent driving, being charge number CC 9158 of 2017;
· failing to give particulars after a crash, charge number CC 13410 of 2017; and
· using an incorrect numberplate, charge number CC 13411 of 2017.
These charges are contained on a list of additional offences dated 10 January 2018 and signed by you. I note that list of additional offences records that the offence upon which those charges are to be taken into account is the offence of dishonestly driving a motor vehicle on 18 February 2017, being charge number CC 9157 of 2017. That was indeed the Magistrates Court number with respect to that particular charge but that particular charge was not committed for sentence to this Court. Instead, in order to facilitate the Court dealing with these matters efficiently, the prosecution filed an ex officio indictment, SCC 141A of 2017, and the charge which in the Magistrates Court was charge number CC 9157 of 2017 is now charge number 31270 of 2018 on the ex officio indictment.
Finally, you have entered pleas of guilty to three summary charges transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT). Those offences are:
· one charge of obstructing a public official on 29 March 2017, being charge number CC 3747 of 2017;
· one charge of possession of a drug of dependence, being methylamphetamine, on 29 March 2017, being charge number CC 3748 of 2017; and
· one charge of possession of property reasonably suspected of being stolen, being charge number 3749 of 2017. That offence also occurred on 29 March 2017.
The maximum penalty for the offence of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT), is 20 years’ imprisonment, a fine of $300,000 or both. The maximum penalty for the offence of theft, contrary to s 308 of the Criminal Code 2002 (ACT), is 10 years’ imprisonment, a fine of $150,000 or both. The maximum penalty for the offence of obtaining property by deception, contrary to s 326 of the Criminal Code 2002 (ACT), is 10 years’ imprisonment, a fine of $150,000 or both. The maximum penalty for the offence of driving or riding in a motor vehicle without the consent of the owner, contrary to s 318 of the Criminal Code 2002 (ACT), is five years’ imprisonment, a fine of $75,000 or both.
The maximum for the offence of damaging property, contrary to s 403 of the Criminal Code 2002 (ACT), is 10 years’ imprisonment, a fine of $150,000 or both. The maximum penalty for the offence of obstructing a Territory public official, contrary to s 361 of the Criminal Code 2002 (ACT), is two years’ imprisonment, a fine of $30,000 or both, and the maximum penalty for the offence of unlawful possession of stolen property, contrary to s 324 of the Criminal Code 2002 (ACT), is six months’ imprisonment, a fine of $7,500 or both. The maximum penalty for the offence of possession of a drug of dependence, contrary to s 169 of the Drugs of Dependence Act 1989 (ACT), is two years’ imprisonment, a fine of $7,500 or both.
With respect to the offences contained on the list of additional offences, the maximum penalty for the offence of negligent driving is a fine of $3,000, the maximum penalty for the offence of being a driver involved in a crash and failing to give particulars is a fine of $3,000 with a traffic infringement notice amount of $257, and the maximum penalty for the offence of using an incorrect numberplate is a fine of $3,000.
With respect to those charges on SCC 141 of 2017, on 27 September 2017 you were arraigned and pleaded guilty to eight counts on the indictment dated 13 July 2017. The pleas were entered after you had been committed for trial and after the fifth mention in the Registrar's list. The charges for which you ultimately pleaded guilty were those laid in the ACT Magistrates Court, to which you initially entered pleas of not guilty.
On 9 June 2017 you were committed by the Magistrates Court to this Court for trial. The indictable charges were committed under s 90A of the Magistrates Court Act 1930 (ACT), whilst the summary charges were committed as related offences under s 90B of that Act.
On 22 June 2017 the matter appeared in the Supreme Court Registrar's list for trial directions and orders were made for the Crown to file the indictment and case statement. The matter was adjourned to 3 August 2017, and prior to that date the Crown filed an indictment containing nine counts with a supporting case statement.
On 3 August 2017 the matter was again in the Registrar's list, where you were granted an adjournment until 17 August 2017. On that date a further adjournment was granted to 7 September 2017. On 7 September 2017 an adjournment was granted to enable the parties to negotiate the charges.
On 21 September 2017 the parties indicated that the matter had resolved without the need to set a trial date. On 27 September 2017, you were arraigned and pleaded guilty to eight of the total nine counts on the indictment, which the Crown accepted in full satisfaction of the indictment. I note that these cannot be said to have been early pleas of guilty, but I will nevertheless reduce by approximately 15 per cent the otherwise appropriate sentences with respect to those offences, in order to reflect your pleas of guilty.
With respect to the charges on SCC 141A of 2017, on 10 January 2018 you were arraigned and you pleaded guilty to all three counts on the indictment dated 9 January 2018. Those pleas were entered on the first occasion you were before a Court in relation to the charges. I accept there were early pleas of guilty with respect to those charges and I will reduce by 25 per cent the otherwise appropriate sentences with respect to those matters in order to reflect your pleas of guilty.
A comprehensive Statement of Facts has been tendered in the matter. There was no dispute about the facts and accordingly I will not now recite the facts before the Court. I will note simply that on 30 January 2017 you drove a stolen motor vehicle before abandoning the vehicle. On 18 February 2017 you drove a different stolen vehicle before crashing it and abandoning the vehicle. On 23 March 2017 you drove another different stolen vehicle.
On 24 March 2017, you broke into a home with a juvenile co-offender and stole several items, including bankcards. You then drove a stolen vehicle to make unauthorised purchases using the stolen bankcard. On 29 March 2017 you attended a home in a different stolen vehicle with your co-offender, where you broke into a garage. You were interrupted by police and you ran from the police. When you were eventually arrested, methylamphetamine and stolen property were found in your possession.
You have a very considerable criminal history. You are heavily recorded for offences of dishonesty, including burglaries and dishonest use of motor vehicles. You have served terms of imprisonment in the past for such offences and other offences of dishonesty. No leniency is able to be shown to you with respect to sentencing for the present charges on the basis of your prior record. I note in that regard that you were only released from custody most recently on 17 November 2016, before you started committing the present offences in early 2017.
A Pre-Sentence Report was prepared for the sentence hearing. You are 23 years of age and you were remanded in custody at the Alexander Maconochie Centre (AMC) for the current offences on 31 March 2017. Since that time you have incurred disciplinary action for a number of infractions including smoking in a non-smoking area, being abusive towards your case manager, assaulting a detainee, assaulting staff, attempting to assault a detainee, and refusing to provide a sample for urinalysis drug testing.
You have completed two short psycho-educational programs during the remand period, being the ADAPT program and the Harm Minimisation program. I note that the author of the report sets out your relevant background information at some length. I take into account the fact that you were exposed to drug use at an early age, and also that you were subject to a lack of parental supervision.
Your mother was interviewed for the purposes of the preparation of the report and she stated that she has subsequently addressed her substance abuse issues and obtained employment and is able to provide a stable, supportive and prosocial environment for you on your release from custody. You stated that you have current, recently resumed contact with your father after several years of no contact and indicated you find your father's support to be a positive influence.
You reported entering into a relationship in 2009 which produced three children. That relationship has now ended and the children reside with their mother in regional New South Wales. You had regular contact with the children while you were in the community until you recommenced methylamphetamine use, but you have had little contact with them since you were remanded in custody.
You have limited education. You did not complete year 7 due to truancy. You reportedly completed several qualifications whilst in custody in both juvenile and adult facilities. You reported that you worked briefly for a milk distribution company when last in the community, however you ceased attending work following your resumption of drug use.
You told the author of the report that when you were in the community you were not involved in any organised activities and did not have any pro-social peers. You recognised that you would continue to relapse or risk relapsing into drug use and criminal activity if you continued to associate with your current peer network. Your mother agreed with this assessment and stated that she would encourage you into suitable activities, so that you could meet pro-social peers.
You told the author of the report that you recommenced methylamphetamine use while celebrating with friends, and you claimed that you would not have done so had you not resumed those friendships. You said that you used up to one gram of this substance daily and your involvement in criminal activity resumed when you were no longer able to source the drug for free.
During the remand period you were subject to four targeted urinalysis drug tests, the first three of which detected no illicit substances but you refused to provide a sample on the fourth occasion. I note that you have applied to a number of rehabilitation programs in New South Wales and in the Australian Capital Territory. You were assessed as unsuitable for a number of those programs because of outstanding warrants in New South Wales. You have been assessed as suitable for participation in the Arcadia House transition program and I have been this morning, 18 January 2018, advised that you have been allocated a bed commencing on 19 February 2018. For reasons which I will give later, in my opinion, it is not appropriate at this time that you be released to enter into the Arcadia House program on 19 February 2018.
You apparently have no physical health issues and although you stated you suffered from self-diagnosed depression while using drugs, you considered that your current mental health was stable. Your mother, however, did express concern that you have an undiagnosed mental health condition stemming from your unstable childhood and ongoing drug use and custodial sentences. You told the author of the report that you agreed with the case statement and you made no attempt to justify or minimise your actions. You admitted your offending behaviour was drug related and that unless you address your drug use, you will likely continue to involve yourself in criminal activity.
The author of the report assessed you as at medium to high risk of general re‑offending. He describes you as a 23 year old with a significant criminal history that commenced at the age of [redacted]. As an adult, you have spent more time in custody than in the community. Your primary criminogenic risk appears to be your substance abuse issues, which impact on other areas of life such as your ability to maintain employment and your relationship with your children.
I take into account the contents of the CADAS Report dated 11 December 2017. That supports the information found in the Pre‑Sentence Report relating to your less than optimal childhood and your exposure to illicit drugs from an early age. I particularly take into account the section of the report which deals with the previous attempts that you have made at treatment for your alcohol and other drug abuse. I note that you have been involved with CADAS since about September 2011. You reported that you have attended residential drug treatment twice, once at Ted Noffs at Dubbo in 2009, when you completed a three month program, and once at Ted Noffs in Canberra in 2010, where you were discharged after a month. You reported those treatments to have been helpful.
In August 2013, you attended Karralika residential treatment program for one month before transitioning to Arcadia House day program. You reported this treatment to be both enjoyable and helpful and you felt that it had helped you to develop insight. Following this, you attended Alcoholics Anonymous for six weeks, which you reported as being a big help. A limitation of the day program for you was that you were returning to a home environment that was dysfunctional and abusive at that time.
Within the custodial environment, you reported that you have completed the SMART recovery program. You have also completed other short courses, including the ADAPT program. In 2016, you successfully completed the Solaris residential program within the AMC. You also stated that you are currently attending counselling sessions with a counsellor from Directions, who attends the AMC to provide counselling. You describe this as being beneficial.
You told the author of the CADAS Report that you continue to hope that longer term residential treatment in the community is achievable for you. You said that your goal is to enter residential treatment in the community. You described yourself as having very poor life skills and you said that you would like to develop such skills, so that you say that you can work towards a life that is functional and away from a criminal lifestyle.
I now turn to the objective seriousness of these offences. With respect to each of the offences of dishonestly driving a motor vehicle between January and March 2017, I would describe those offences as falling within the mid-range of such offences. With respect to the charge of aggravated burglary on 24 March 2017, I take into account the fact that there was a degree of planning with respect to that offence, that the offence involved damaging the premises in order to gain entry. I also take into account the fact that they were residential premises and that your entry into those premises undoubtedly created feelings of violation on behalf of the victims. I would assess this offence as being in the low to mid‑range of such offences.
With respect to the associated offence of theft on 24 March 2017, the items which were taken were not particularly valuable and I would describe that offence as being at the lower end of the range. With respect to the offence of dishonestly driving a motor vehicle on 24 March 2017, I would again describe that as being in the mid-range of such offences. With respect to the two offences of dishonestly obtaining property by deception, I note that the value was not considerable and I would describe those offences as being towards the bottom of the range of such offences. With respect to the offence of dishonestly riding in a motor vehicle on 29 March 2017, I would again describe that as being in the mid-range of such offences.
With respect to the aggravated burglary on 29 March 2017, I would make the same comments that I made with respect to the aggravated burglary on 24 March 2017 and again I would describe this offence as being in the low to mid-range of such offences. With respect to the charge of damaging property on 29 March 2017, I take into account the fact that the offence was spontaneous but it was committed in order to evade police. I would nevertheless describe this as being at the low end of the range of such offences. With respect to the summary matters, I would describe them as being towards the bottom of the range of such offences.
In sentencing you, I take into account your age. You are still relatively young and therefore rehabilitation must be given some weight. Your prospects for rehabilitation must be considered guarded. I take into account that you have undertaken programs directed towards your rehabilitation whilst you have been remanded in custody whilst awaiting sentence for these offences. Balanced against that is the fact that you have attempted rehabilitation in the past but this has not stopped you from returning to drug use and to crime after you have been released from custody.
The key to rehabilitation in your case must be for you to address your drug addiction. You have a history of making progress while in custody but failing to maintain your commitment when you are not in a structured environment. This suggests the need for a gradual transition into the community, perhaps through a period of residential rehabilitation. In that regard, it is heartening to note that you have been attempting to arrange for such programs whilst you have been in custody awaiting sentence.
I must also take into account that the facts in this matter demonstrate a need for both general and specific deterrence. Your criminal history demonstrates that there is a need to deter you from committing further offences and the offences are of such a nature that general deterrence is always a relevant consideration. There is also a need to protect the public. At present, you present as a fairly high risk of re‑offending if you were to be released from custody immediately into the community. I do take into account that all offences occurred within a relatively confined period but in that regard, the only reason that the offences ceased was because you were arrested.
I must give some consideration to whether it is necessary to consider parity with your juvenile co‑offender. In my opinion, parity with your co‑offender is not really an issue. There are significant differences between your co‑offender and yourself. Firstly, and most significantly, your co‑offender was a juvenile and, secondly, he had a much lesser criminal history.
I also recognise the fact that I need to consider totality with respect to the sentences that I am going to impose. The principle of totality calls for a degree of concurrency of sentences for offences committed on the same date but also, in my opinion, for offences committed on different dates in order to achieve a sentence, an overall aggregate sentence which reflects the overall criminality of your offending.
In my opinion, nothing less than immediate terms of imprisonment will be satisfactory in order to appropriately address these sentencing considerations. As I have said, I am heartened by the fact that you are willing to participate in a residential rehabilitation program but, in my opinion, releasing you into such a program at the present time would not adequately address a number of sentencing considerations, in particular deterrence and also punishment. I will, nevertheless, allow an opportunity for you to achieve early release from custody with a view to participating in such a program.
Sentence
With regard to the three offences of dishonestly driving a motor vehicle on the indictment SCC 141A of 2017 (XO2018/31269; XO2018/31270; XO2018/31271), you are convicted and sentenced to 10 months’ imprisonment which I have reduced from 14 months in order to reflect your plea of guilty. Each such sentence is to commence on 29 March 2017 and expire on 28 January 2018.
With regard to the offence of aggravated burglary which occurred on 24 March 2017 (CC2017/3742), you are convicted and sentenced to two years and one month’s imprisonment which I have reduced from 30 months’ imprisonment, commencing on 29 August 2017 and expiring on 28 September 2019.
With regard to the associated charge of theft (CC2017/3743), you are convicted and sentenced to five months’ imprisonment which I have reduced from six months in order to reflect your plea of guilty, commencing on 29 August 2017 and expiring on 28 January 2018.
With regard to the charge of dishonestly driving a motor vehicle on 24 March 2017 (CC2017/6230), you are convicted and sentenced to 11 months’ imprisonment which I have reduced from 14 months in order to reflect your plea of guilty, commencing on 29 March 2019 and expiring on 28 February 2020.
With regard to the two charges of dishonestly obtaining property by deception on 24 March 2017 (CC2017/6262; CC2017/6260), you are convicted and on each matter you are sentenced to nine months’ imprisonment which I have reduced from 11 months in order to reflect your pleas of guilty, commencing on 29 March 2019 and expiring on 28 December 2019.
With regard to the offence of aggravated burglary on 29 March 2017 (CC2017/3744) you are convicted and sentenced to two years and one month’s imprisonment which I have reduced from 30 months’ imprisonment, commencing on 29 July 2019 and expiring on 28 August 2021.
With regard to the charge of dishonestly riding in a motor vehicle on 29 March 2017 (CC2017/3746) you are convicted and sentenced to eight months’ imprisonment, commencing on 29 May 2021 and expiring on 28 January 2022.
With regard to the charge of damaging property on 29 March 2017 (CC2017/3745), you are convicted and sentenced to three months’ imprisonment, commencing on 29 May 2021 and expiring on 28 August 2021.
With respect to the offence of obstructing a public official on 29 March 2017 (CC17/3747), you are convicted and sentenced to two months’ imprisonment, commencing on 29 December 2021 and expiring on 28 February 2022.
With regard to the offence of possession of a drug of dependence (CC17/3748), you are convicted and sentenced to two months’ imprisonment, commencing on 29 December 2021 and expiring on 28 February 2022.
With regard to the offence of possession of property reasonably suspected of being stolen (CC17/3749), you are convicted and sentenced to one month’s imprisonment, commencing on 29 December 2021 and expiring on 28 January 2022.
The aggregate sentence which I have imposed is, therefore, one of four years and 11 months’ imprisonment, commencing on 29 March 2017 and expiring on 28 February 2022.
Bearing in mind your criminal history, I would ordinarily have set a non-parole period of about 38 months or three years and two months. However, bearing in mind what I have said with respect to your prospects for rehabilitation and the desirability of you undertaking a graduated return to the community through a residential rehabilitation program, I will instead set a non-parole period of 30 months or two years and six months, commencing on 29 March 2017 and expiring on 28 September 2019.
I recommend that the Sentence Administration Board carefully consider your progress in custody before determining to grant you early release on parole, in particular your progress in addressing drug addiction. I further recommend that consideration be given to making a condition of any early release on parole that transition into the community be by way of a structured rehabilitation program such as that offered by Arcadia House.
Finally, I make reparation orders of $2808.00 in favour of Catherine Gareffa and $300.00 in favour of Sally Herrett.
[Speaking directly to offender]
Mr Walters, you have heard what I have said. Despite the fact that you have really a very terrible criminal history for somebody your age, I have left the door open for you to obtain early release from prison by way of undertaking a transitional program such as that offered by Arcadia House, but to a great extent whether the Sentence Administration Board grants you an early release on parole is going to depend upon how you perform in custody leading up until your application for parole.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 20 June 2018 |
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