R v Walton

[2020] NSWDC 918

District Court

New South Wales

Medium Neutral Citation:

R v Walton [2020] NSWDC 918

Hearing dates:

14 December 2020

Date of orders:

14 December 2020

Decision date:

14 December 2020

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Aggregate sentence 6 years NPP 3 years 6 months –

Indicative sentences: (1) 11 months (2) On each 3 years 7 months NPP 2 years 6 months (3) 2 years 7 months (4) Fixed term 1 month (5) 9 months.

Catchwords:

Crime – Sentence – Six substantive offences – (1) Police pursuit not stop-drive recklessly – (2) 2 charges of aggravated breaking, entering and stealing from private houses – (3) Destruction of motor vehicle – (4) Common assault – (5) Breaking, entering and stealing from a hotel – One matter on a Form 1, stealing the motor vehicle – Three offences dealt with on s 166 Certificate – Alcohol and drug induced rampage over the evening and morning of 21 and 22 November 2019 – Pleas of guilty entitling a 25% discount – Extensive criminal history – Personal circumstances show a long history of dealing with alcohol and drug abuse – Guarded prospects of rehabilitation – Onerous conditions of incarceration, unlikely to be relieved, through no fault of offender.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Category:

Sentence

Parties:

Crown – Regina
Offender – Aaron Neil Walton

Representation:

Crown – I. Yousseff (DPP)
Offender – S. Hall instructed by M. Ward (Morrisons)

File Number(s):

2019/00369436

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Aaron Neil Walton stands for sentence as a consequence of pleading guilty to a number of charges arising from an alcohol induced rampage which occurred on the evening of Thursday 21 November 2019 and continued into the morning of Friday 22 November 2019. Originally the offender was charged with 15 offences. He has pleaded guilty to six substantive charges and asks me to take into account on a Form 1 one further charge. There are also three charges to be dealt with on a certificate under s 166.

2. The offender was arrested on the morning of 22 November 2019 and has been in custody ever since. At the current time the offender is 31 years of age. At the time of the offences now in question he was 30 years old.

Police pursuit

3. The following can be gleaned from the agreed facts. At 10pm on Thursday 21 November 2019 two police officers were driving in a police vehicle along Victoria Road, Watsons Bay towards its intersection with Cliff Street. I infer from the facts that the two constables were, in fact, general duty police rather than Highway Patrol police. The police observed the offender driving towards them travelling on the incorrect side of the carriageway. He was driving a vehicle, registered number DAY20G. The police pulled up next to the offender’s vehicle, with one of the constables being approximately 2 metres from the driver’s side window of the offender’s car. That police officer told the offender to put his window down, which he did. The police officer then had a brief conversation with the offender and asked him to produce his driver’s licence. The offender replied, “Yeah, give me a second”. However, instead of producing his licence he accelerated and drove away at speed, continuing to travel in a south westerly direction on the wrong side of Victoria Road, Watsons Bay. A minute or two later he drove past the police vehicle at “high speed”, accelerating along Cliff Street towards Military Road. The two police officers activated the vehicle’s lights and sirens and proceeded to give chase. The offender, however, did not stop his vehicle and pull over despite having many theoretical opportunities to do so. The police pursued. him. They followed him along Military Road onto Robertson Place before turning onto Old South Head Road. The offender continued to accelerate. One of the constables informed the other police, presumably by police radio, that the offender was doing 80 kilometres per hour in a 60 kilometre hour zone.

4. The offender was seen to overtake three or four vehicles before remaining on the incorrect side of the carriageway and driving towards the intersection of New South Head Road and Old South Head Road. For safety reasons the two general duty police stopped the pursuit and turned off their lights and sirens. One of the police officers observed the offender to proceed through a roundabout and continue to travel along Old South Head Road towards Diamond Bay. He then lost sight of the offender’s vehicle.

5. The white Ford Falcon was later located parked at the end of Bayview Hill Road, Rose Bay. That is a dead end street that provided pedestrian access to a foreshore walk.

6. That behaviour constitutes the offence of driving a motor vehicle knowing that police officers were in pursuit of the vehicle and that he was required to stop the vehicle, but did not stop the vehicle and drove the said vehicle in a manner reckless to other road users. That is an offence contrary to s 51B (1) of the Crimes Act 1900. If prosecuted in this Court the maximum penalty is three years imprisonment, but if prosecuted in the Local Court the maximum penalty is two years imprisonment.

7. The Crown has submitted that the offence falls “just below the mid-range of objective seriousness for offences of this type.” In my view, it is well under mid-range for such offences. The maximum speed observed was 20 kilometres over the speed limit. Often in police pursuits offenders will drive cars at very high speeds, sometimes at or over 100 kilometres per hour greater than the posted speed limit. Whilst there was driving on the incorrect side of the carriageway there is no other evidence of fast or furious driving.

8. In exhibit 2, additional material provided to me by the Crown, is a map of the route taken by the offender in his vehicle whilst being pursued by the police. That shows a route from Watsons Bay towards Bondi Junction. Exhibit 2 tells me that the distance between those two points was 2.7 kilometres and at the speed limit that should take about six minutes. Police estimated that the pursuit went on for between three and four minutes. That is hardly a lengthy police pursuit. I hazard the observation that if highway patrol officers were involved in a pursuit it would have went on for much longer. However, it must be borne in mind that this area of the eastern suburbs of Sydney is very closely settled. The offence commenced at about 10pm on a Thursday evening, late night shopping, in summer, and although there is no direct evidence as to the extent of the traffic, I do know that the offender was required to overtake vehicles in order to avoid the police, and one would expect there to be at least moderate vehicular traffic at that hour and perhaps also moderate pedestrian traffic in a closely built-up area of the city.

First B.E.S. at Vaucluse

9. The second offence to which the offender pleaded guilty is an aggravated breaking and entering and committing a serious indictable offence. The serious indictable offence was larceny and the circumstances of aggravation were that the offender knew that there were people within the dwelling and that he was armed with an offensive weapon.

10. At 11.50pm on 21 November 2019 Ms Beverly Tow was sitting in her television room in her house in Wentworth Road, Vaucluse. She heard a shuffling noise within her dwelling. She initially thought it was her husband, but when she looked to her right she saw the offender, who was holding a grey baseball bat and wearing a hooded garment, which was arranged in such a way as to cover the lower half of the offender’s face. The offender demanded that Ms Tow give him money. He repeated that demand a number of times. The victim indicated that she would do as he asked. She went to obtain her handbag and noted it was on the table, which was not where she normally left it. The inference is that the offender had already dealt with the handbag in some way. Ms Tow found her wallet on the table. Again the offender demanded that she give him or her money. She took all of the cash out of her wallet, it amounted to approximately $480.

11. There was interaction between the offender and Ms Tow, which she recorded, I assume, on her telephone. Again the offender kept on telling her that he wanted money. Ms Tow said she would give him money provided that he did not touch her. After Ms Tow had handed over the money they walked to the front door. The offender then told her that he had forgotten to pick up his bag. Ms Tow asked him where it was. She followed the offender into the kitchen where she saw his duffle bag laying on the floor. The offender then asked Ms Tow for alcohol. She obtained a near empty bottle of scotch. The offender then said to her “I’ve got a gun”. That was merely a form of threat. There was no evidence that the offender actually had a firearm. Ms Tow handed the offender the near empty bottle of scotch and then the offender said to her “I’m sorry I had to do this to you”. That statement made the victim believe that she was going to come to serious harm. From what I shall say later, it is clear the offender has no recollection of the details of his escapades on this evening and morning. It may well be that it was a form of apology rather than something that he intended to mean as a threat.

12. Ms Tow then asked the offender to go. The offender then asked her to give him the keys to her car. She said that she had already done so. The offender said to that statement “No”, but then Ms Tow said she is going to press her alarm button, no doubt to indicate that there was a problem in her house. She then shut a door and ran upstairs to her bedroom and told her husband and daughter that there was a stranger in the house. Mr Tow, Ms Tow’s husband, then called the emergency number 000. It appears that the offender left that house when Ms Tow went upstairs to alert her husband to what was happening.

Second B.E.S. at Vaucluse

13. The third offence was another aggravated break, enter and commit a serous indictable offence. The serious indictable was again larceny. Mr David Kingston was living in Coolong Road, Vaucluse. He retired for the evening at 11pm on 21 November 2019. He was awoken at 12.10am on the following morning by the offender shining a light in his face. The offender said “Get me some money”. The offender then asked Mr Kingston if there was anyone else there. Mr Kingston replied that his son might be there. The offender then kicked Mr Kingston in his left shin and threatened to bash him. The kicking of Mr Kingston’s left shin left a small cut on Mr Kingston’s leg which bled a little.

14. Mr Kingston noticed that the offender appeared to be “agitated”. The offender looked in other rooms of the house and went back to Mr Kingston’s bedroom. He again demanded “Where’s the money?” Mr Kingston said that he would get what he could find. He then went downstairs into the living area and opened his wallet. There was no money in it. There had been about $600 in cash, mainly in $50 notes when he retired for the evening. The inference to be drawn is the offender had already relieved Mr Kingston’s wallet of its cash. However, he did not take any credit cards or the like.

15. The offender, I am told, also damaged the lid of Mr Kingston’s laptop. Mr Kingston noticed that the offender had a baseball bat with him. It was on the table downstairs. He also noticed that the offender had taken a bottle of Chivas Regal scotch whisky and placed it on the coffee table in the living area. The inference to be drawn is that the offender had gained access to the scotch before he woke Mr Kingston up.

16. The offender then demanded that the victim give him the keys to his vehicle. Mr Kingston owned a 2010 black Range Rover Sport. Mr Kingston handed over his car keys. The offender, however, could not start the car. Mr Kingston, no doubt wanting to be rid of the offender, showed him the press button ignition of the vehicle and opened the garage door so that the offender was able to drive Mr Kingston’s car away.

Steal motor vehicle/Destroy motor vehicle

17. The taking of Mr Kingston’s motor vehicle is an offence that is to be taken into account on a Form 1, referrable to the next offence, which was the offender’s torching Mr Kingston’s motor vehicle. The offender drove that motor vehicle to the intersection of Miller Street and Castleford Street where he set it alight. Exhibit 2 contains a map showing the various sites of the offences committed by the offender in this rampage. I do not know the scale of the map, but it would appear that the offender would have driven no more than about one and half kilometres to the site where Mr Kingston’s vehicle was burnt. It was about two-thirds of the way between Vaucluse and Rose Bay.

Unlawful entry on enclosed land x 2

18. The offences known as sequence 6 and sequence 11 then occurred. Those are two of the matters to be taken into account under s 166. Sequence 6 is this. At 5.50am on 22 November 2019 Mr Joshua Finch returned to his home at Vicars Avenue, North Bondi after walking his dog. Mr Finch saw the offender trying to open the side gate of an adjoining property on Vicars Avenue. Mr Finch saw the offender on that property inside the fenced area. Sequence 11 is that Mr Finch then saw the offender walk onto the front gate area of his property. Each of those offences is of unlawful entry onto enclosed lands.

Common assault

19. The next substantive charge is known as sequence 15. It is a common assault upon Mr Finch. The agreed facts as these:

“Finch said, ‘What are you doing?’ or ‘Can I help you?’ and the offender said he was looking for his bag. Finch asked what kind of bag and the offender said ‘One this big’ and used his hand to gesture the length of about a metre.

The offender looked for his bag in some bushes. He kicked the bushes.

Finch said ‘You need to get off my property’. The offender said, ‘I can do whatever the fuck I want, I can punch you if I want to’. The offender took a step towards Finch so that they were within two arm’s lengths of the each other. Finch feared for his safety and took a step back.

They stared at each other for a short time. Finch said, ‘You need to get the fuck off my property’ and took his phone out to call the police. The offender walked out of the property and went southbound on Vicars Avenue”.

There is no suggestion of any battery at all. However, the offender made a gesture towards Mr Finch which put Mr Finch in fear. This is really at the bottom of the range for offences of common assault and if it were the only offence would hardly call for any custodial sentence.

B.E.S. at Bondi

20. The final substantive offence is a break and enter and commit a serious indictable offence, larceny. At about 7am on 22 November 2019 the Beach Road Hotel, located on Beach Road, Bondi, was being cleaned by a professional cleaning staff. The cleaners had left a door on the ground floor of the hotel closed, but unlocked. At 7.03am the offender entered the Beach Road Hotel. He must have opened the unlocked door by doing something such as twisting a knob or depressing a lever. Theoretically that is the application of force to the hotel building and constitutes a breaking, even though nothing was actually broken.

21. At the time that he entered the hotel the offender was shirtless and carrying a white plastic bag. He was obviously thirsty. At 7.09am he entered the bar through a door and took a bottle of Gentleman Jack bourbon. That beverage retails for $70 per bottle. The offender carried a Coca Cola bottle and the bottle of alcohol through the bar to the outside of the hotel. The offender then saw police an tried to run away. At the corner of Glenayr Avenue and Beach Road the offender was arrested at 7.11am.

Custody of knife

22. The other offence with which I am concerned is known as sequence 13 and was the custody of a knife in a public place. That is a matter which is to be taken into account on a s 166 certificate. The police did not notice the knife until after he was taken out of a caged police vehicle at the Waverley Police Station. It was a small yellow foldout knife.

Other evidence

23. Referrable to the investigation of these crimes was the fact that on 22 November 2019 a resident at 45 Sir Thomas Mitchell Drive, Bondi Beach, found a Range Rover set of keys with a house fob and various other keys on the first floor landing of the building. Another resident had earlier located a Nike duffle bag containing boxing gloves, some clothing, a set of car keys and a Plus Fitness swipe card belonging to the offender, and a puffer with a form of the name of the offender on it, an axe, a hammer and a toiletries bag. The inference to be drawn is that the offender spent the hours of the early morning of 22 November 2019 in the common area of the residence at 45 Sir Thomas Mitchell Drive, Bondi Beach and left his belongings there. It may be that he had intended to commit offences there, but if he did so intend he did not do so.

Seriousness – aggravated B.E.S.

24. I have already made observations about the extent of the seriousness of the police pursuit and of the common assault upon Mr Finch. I need to consider the two offences of aggravated break, enter and steal. The Crown has submitted that each offence falls in the mid-range of objective seriousness. No physical harm was done to Ms Tow or other residents of her dwelling house. Although there was a kick to the shin of Mr Kingston the damage done to him was only actual bodily harm of a minor nature.

25. The maximum penalty for an aggravated breaking, entering and committing a serious indictable offence is imprisonment for 20 years. There is a standard non-parole period of five years. In considering the maximum penalty one must realise that the serious indictable offence of larceny is towards the bottom of the range of the serious indictable offences that might be committed after a breaking and entering. Premises can be broken and entered by somebody with the intent to murder a person living in those premises, or to inflict grievous bodily harm. A person can also break and enter a dwelling house with intent to commit a sexual assault upon someone residing in the premises. Breaking and entering can also occur where the person wishes to abduct a resident or occupier of the premises in order to exact retribution upon them, or, for example, to hold them for ransom. That is shortly described as a kidnapping. Stealing is really at the bottom of the range. That indicates that these offences are towards the bottom of the range for offences of this nature.

26. Although it is true that the offender had with him a baseball bat there is no evidence that he made Ms Tow fear that he would use it to hurt her. As far as Mr Kingston is concerned the baseball bat was laying on the table downstairs. What was taken in the larceny was not, for example some major work of art or some very valuable chattel, for example, jewellery, but was merely cash and alcohol. I have no doubt that both Ms Tow and Mr Kingston were extremely fearful and upset by the experience, and perhaps terrified. However, often that is a position for anybody who is present in a dwelling house when there is a breaking and entering within the intent to commit a serious indictable offence. I believe that both these breaking and entering and stealing are below the mid-range of objective seriousness.

Seriousness – other offences

27. As far as the damage to property by fire is concerned, the torching of Mr Kingston’s car, the Crown submits that the offence falls just below the mid-range of objective seriousness. No cavil is made by Ms Hall for the offender about that, and I am happy to accept that as the relevant objective seriousness of that offence.

28. As far as the breaking and entering of the hotel is concerned, this again is at the bottom of the range of objective seriousness for that sort of offence.

Why the offending occurred

29. One thing that is clear is why these offences were committed. The offender himself has no or very little recollection of what occurred other than from dreams or nightmares, which themselves may have been generated by what he gleaned from his only source of reliable information, the Crown brief which was served upon him and told him what he had done. In the evidence is a letter from the offender’s sister, Ms Kristy Walton, who now uses her husband’s surname, Bassi. The letter bears the date 7 December 2020. That contains this matter:

“Aaron is my youngest sibling and my parent’s youngest child. We are a close family, we have all tried to support Aaron the best we can in our own ways. In the weeks leading to Aaron’s arrest, my parents made several calls to the Mental Health Unit at Wollongong Hospital for assistance/advice in respect of Aaron’s mental health. Aaron was experiencing delusions, hallucinations and severe paranoia together with anxiety and depression. The more we tried to get him help the more he thought we were going against him. Aaron wasn’t sleeping, he was self-medicating with drugs and alcohol, we honestly felt helpless.

My parents called Wollongong Police Station for assistance in getting Aaron into the Mental Health Unit forcibly however they advised that they were unable to assist and couldn’t get involved until Aaron had committed a crime. This was our last option, in the days leading to Aaron’s arrest he hadn’t slept, he was very concerned about being attacked and feared for his life, whatever was going on in his head was too strong for us to get through to him and the more we tried to convince him that it isn’t real, the more he felt like we were against him. It was terribly sad reading through the facts, his behaviour was so erratic and insane, it broke our hearts thinking what must have been running through his head to lead him to this point.”

30. The offender himself told me today, on oath, that he was hallucinating and he believed that he was accompanied by two other persons which is clearly a part of the hallucination.

31. The offender was interviewed on 27 October 2020 by Dr Adam Martin, a forensic psychiatrist. He interviewed the offender by audio visual link to Long Bay Gaol. As to the background of this offence Dr Martin recorded this:

“Mr Walton said that he had impaired memory was not really able to explain what had occurred, but said that he had been intoxicated with a combination of alcohol, Xanax, Lyrica, Tramadol and Seroquel, and said that he had been experiencing unusual phenomena such as hearing voices and believing he was in the company of others when the offending was occurring. He described poor memory for the actual offending, but attributed a disordered mental state to having previously used methamphetamine two weeks before and problematic use of the above mentioned substances.”

That is consistent, of course, with Mr Kingston’s noting that the offender appeared to be agitated and also with the offender’s frequent use of alcohol, for example, when he broke and entered the dwelling house of Ms Tow and that of Mr Kingston, and when he took alcohol in the early hours of the morning from the hotel at Bondi Beach.

LUNCHEON ADJOURNMENT

Criminal history

32. The offender has a criminal history. I need to recite that history in order to show that the offender cannot expect any leniency. However, the offender’s criminal history also points in the direction that the offences with which I am now concerned arose from a well-established drug and alcohol problem causing mental ill-health.

33. Leaving aside the charge the offender faced as a juvenile, at the age of 18 he committed the offence of affray on 1 September 2007. For that he was given a nine months sentence of imprisonment, which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, as it then stood. However, he breached the bond entered into under s 12 and eventually was sentenced to imprisonment for nine months with a non-parole period of four months, commencing on 17 September 2009 and expiring on 16 January 2010.

34. On 30 December 2007, again at the age of 18, he committed an assault occasioning actual bodily harm for which he was sentenced to periodic detention for a period of 12 months with a non-parole period of nine months.

35. On 7 September 2008, at the age of 19, he committed assault occasioning actual bodily harm for which he was sentenced to 14 months imprisonment with a non-parole period of six months.

36. On 17 April 2013, at the age of 23, he committed a number of minor offences, destroying or damaging property for which he entered into a bond to be of good behaviour for 18 months, possession of a prohibited drug for which he was fined, and entering enclosed lands without lawful excuse, for which he was also fined. However, for breaching the s 9 bond he was called-up and was sentenced to one month’s imprisonment.

37. On 29 July 2013, at the age of 24, he committed the offence of destroying or damaging property. Initially a s 9 bond was imposed. That bond was breached and the offender was sentenced to one month’s imprisonment.

38. On 30 November 2013 he committed the offence of driving recklessly or furiously or at a speed or in a manner dangerous to the public. For that he was ordered to enter into a bond pursuant to s 9 for a period 18 months and was disqualified from driving for two years. However, he breached that bond and on call-up was sentenced to imprisonment for two months from 13 August 2015 to 12 October 2015.

39. On 12 February 2014 he committed the offence of dishonestly obtaining property by deception and again he was sentenced to two months’ imprisonment, commencing on 25 August 2014 and expiring on 24 October 2014. On 1 June 2014 he committed the crime of shoplifting and was again sentenced to two months imprisonment, wholly concurrent with the sentence for the last offence which I described.

40. On 10 July 2014, at the age of 25, he was convicted of possessing a prohibited drug.

41. On 19 July 2014, at the age of 25, he drove a motor vehicle whilst disqualified and was sentenced to imprisonment for one month.

42. On 15 August 2014 he committed an aggravated breaking, entering and commit a serious indictable offence in company, being the circumstance of aggravation. At the same time he committed a larceny. On 24 April 2014 he ahad committed the offence of taking or detaining a person whilst in company with the intent to obtain an advantage. To those offences he pleaded guilty and appeared for sentence for sentence before my colleague Conlon DCJ, sitting at Campbelltown on 13 August 2015 he had been in custody for those offences since 25 August 2014, that is for almost a year at the time he appeared before Conlon DCJ.

43. His Honour spent some time detailing the agreed facts as to the kidnapping. At all material times the offender was in company with one Brett Osborne, who appears to have been the major player in the offence and was armed at all material times with a small tomahawk style axe. It would appear that Osborne was delusional, he believed that a drone was following him and he believed that the victim knew who was in charge of the drone. After the victim was taken by Osborne and this offender he was taken to the residential address of Osborne. Osborne threatened the victim with death. He made a choke rope out of an electrical cable, on the basis that the use of an electrical cable or cord would not leave a rope burn around the victim’s neck.

44. It is clear from the facts that his Honour commenced to set out on p 4 of his reasons that this offender persuaded his co-offender Osborne not to harm the victim, to let him go, and that led to the offender’s escaping from the detention effected upon him by Osborne and this offender. His Honour accepted that the present offender’s intervention in the face of the violent threatening behaviour of the co-offender Osborne was instrumental in securing the victim’s release. His Honour said that that was a matter to which he attributed significant weight. It had substantial effect on what would otherwise have been a more severe penalty.

45. The intervention of this offender to preserve the victim of the kidnapping is something that led me to observe that when the offender said words to the effect that could amount to an apology the offender may have intended it to be an apology rather than an implied threat.

46. His Honour reviewed the offender’s personal circumstances in detail, in greater detail than I need to do for the purpose of this sentencing exercise. His Honour went on to say this:

“My consideration of this material has permitted me to come to the conclusion that he does have good prospects of rehabilitation. He has demonstrated his capacity to be gainfully employed and lead a pro-social lifestyle. This is but another horrific example of how an out of control ice addiction (there is no other kind) can destroy a person’s life in a very short space of time. The ability to make rational judgment goes out the window and criminal conduct follows, all in the pursuit of feeding the addiction. Of course, the success of rehabilitation will very much depend upon his ability to get control of his drug abuse problem. He has the capacity and support of his family and he possesses the necessary skills that should see him quickly back in the workforce upon his eventual release.”

47. For the breaking, entering and stealing offence his Honour imposed a non-parole period of 18 months, an additional term of 18 months. For the kidnapping he imposed a non-parole period of 18 months and an additional term of two years and six months. However, those sentences were partially concurrent and effectively there was a two year non-parole period with a further two and a half years to be served whilst on parole, if parole were granted.

48. His Honour went on to say this towards the end of his reasons:

“I have no doubt that the sentence that I have imposed is an extremely lenient one. I am aware of that, but I have decided to give you the opportunity to get your life back on track, and therefore you will most likely be released to parole on 24 August 2016. Of course, that extended period on parole, the two years and six months, that will be hanging over your head so if you were to go out and commit further offences, as a minimum no doubt parole would be revoked and you would have to go in and do that additional time. I wish you the best in the future.”

The mere fact that I am sitting here delivering a judgment ought indicate that his Honour’s expectations about the offender’s rehabilitation prospects were blasted.

49. According to the orders made by Conlon DCJ the offender was due to be released from custody on 24 August 2016. On 25 December 2016 he committed three offences, that is on Christmas Day. The offender was then 27 years old. The first offence was assaulting an officer in the execution of the officer’s duty, the next offence was escaping police custody and the third offence was common assault, which was domestic related. For those offences the offender was sentenced in total to 12 months imprisonment, commencing on Christmas Day 2016 with a non-parole period of five months. It is extremely lucky for the offender that his parole was not revoked because of those offences.

50. On 25 August 2019 he committed the offence of stalking or intimidating with intent to cause physical or mental harm. This was a domestic violence offence. Whilst on bail for that offence the offender committed the offences with which I am concerned. Eventually the offender was dealt with by the Local Court art Wollongong for the domestic violence offence and was given a Community Correction Order for a period of 15 months, commencing on 12 September 2019 and expiring on 11 March 2021. But, of course, that is largely a theoretical sentence, because the offender was in custody for these offences awaiting his pleas and sentence.

Personal circumstances

51. As I said, Judge Conlon reviewed the offender’s personal circumstances at some length. He had also available to him a Pre-Sentence Report and a report of Ms Isabel Talmacs, a forensic psychologist, bearing the date 25 May 2015. For this sentencing exercise, of course, I am provided with an opinion of Dr Adam Martin, to which I have earlier referred. Dr Martin took this drug and alcohol history:

“Mr Walton said that he first used ‘ice’ [methamphetamine] around the age of 24 initially by smoking, then intravenous use before going back to smoking. He said that he had used on a daily basis between the age of 26 to 27 and used more sporadically more recently although described using two weeks before the index offending, stating that it caused him to be in ‘a deep psychosis’ and saying that he had not slept properly for any lengthy period. He denied regular use of cannabis. He said that he used cocaine very rarely because of its expense. He described use of prescription opiates including Oxycontin, Tramadol and morphine-based medications. He also described heavy alcohol usage, having first drank alcohol at the age of 15 or 16 and drinking on a daily basis. He said ‘I need to be drunk to leave the house’. He described withdrawal symptoms. He described problematic use of sedative benzodiazepines such as Xanax, including around the time of the offending.”

The doctor took this psychiatric history:

“Mr Walton said that he had seen multiple psychiatrists whilst in custody and has attracted various diagnoses, namely bipolar, depression, anxiety, post-traumatic stress disorder and borderline personality disorder. He denied formal Mental Health Unit admissions and has not been accommodated in a Mental Health Screening Unit, although was apparently placed in a safe cell after attempting suicide while in the Waverley Police Station just after his arrest, where he said he had took an overdose of medications, including Xanax, Seroquel and Lyrica. He was then sent to the Emergency Department of Prince of Wales Hospital...

He described experience of psychotic symptoms which he stated had occurred before he started using methamphetamine, but had subsequently been triggered by use of methamphetamine and what sounded like drug-induced psychotic episodes. He described misinterpreting other’s actions, being paranoid about other people knowing him, hearing voices and following traffic signs or other self-referential experiences.

He also described experience of nightmares and often having concern about his safety, which attributed to having previously been seriously assaulted and stabbed on multiple occasions, from 2015 where he said he was stabbed in the face and in 2016 when he was ‘jumped on’ in Nowra Correctional Centre by a large group of inmates and hit with weapons two separate occasions on one day because of gaol rumours. He said that he was stabbed in the liver in 2018 after being ‘lured to a garage’ and had to have a laparotomy...and he said that six months later while at Parklea Correctional Centre he was stabbed in the neck from behind following the above mentioned incident involving his brother making a video with a phone while in custody.”

I shall have more to say about that latter circumstance later.

52. Dr Martin said that the predominant problem as far as diagnosis was concerned was stimulant use disorder with problematic use of methamphetamine which appeared to trigger episodes of psychosis. He said this:

“Methamphetamine is known to be a potent ….. substance which can cause a condition closely resembling schizophrenia, with experience of hallucinations and paranoia, and his account of experiencing self-referential thoughts, misinterpreting others and being paranoid was certainly consistent with drug-induced psychosis. He is not currently mentally ill and is oriented to reality and I did not form the view that he has a major mental illness such as schizophrenia. His history was self-description is consistent predisposition to mood dysregulation and poor coping abilities and there is obviously a history of anti-social behaviour which has probably been linked closely to substance use on a background of family dysfunction, his father’s cannabis use, disrupted education and employment and a tendency to impulsivity. He describes features of post-traumatic stress disorder, which is certainly plausible giving information demonstrating that he has been assaulted on numerous occasions and endured major injuries as a result of stabbings, all requiring assertive treatment including surgery.”

53. Dr Martin then provided a guarded prognosis. However, he pointed this out:

“...he has some insight into the problematic nature of substance use and expresses a pro-social desire to cease medication, and to re engage in education and work. If he engages properly in assertive drug and alcohol rehabilitation, both through programs in custody and then while on parole, then his chances of recidivism will be significantly reduced, and I form the view that he is generally open to such a plan. His mental state appears to be stable currently although he was mildly elevated, possibly consistent with mood instability and potential diagnosis of bipolar disorder.”

54. It is clear that the current offending was due to the effects of the offender’s psychotic behaviour due to his illicit drug use, the use of those prescribed and non-prescribed drugs that he was using, albeit unlawfully. However, from everything that I read it is clear that the offender’s both alcohol and drug abuse stem from the offender’s own behaviour. They should be looked upon as wilfully self-inflicted and therefore cannot be used as a form of mitigation. However, they do explain why the offences occurred and they cannot be put down merely to a person who was intent on obtaining his own way, that is that it was not a deliberate attempt by him to gain money or the like from his breaking and entering and stealing, and other similar anti-social behaviour. The anti-social behaviour also results from his drug and alcohol abuse.

55. I accept that the offender is truly remorseful. Dr Martin, under the heading “Mental State Examination”, said this:

“He expressed spontaneous regret and remorse regarding the offending, acknowledging the fear the victims would have felt and stating a wish to change and avoid drugs, attributing the offending to substance abuse.”

The offender’s sister, Kristy Bassi, said this in her letter of 7 December 2020:

“Aaron has expressed genuine regret and remorse with regards to his actions and is hopeful in making better life choices in the future. I have seen how much this has affected him and how shameful he is of the hurt he has caused to innocent parties as well as his family.”

The offender’s parents, in their letter to me of 7 December 2020, say this:

“Aaron has expressed to us how sorry he is for his behaviour and has communicated this to us on numerous occasions. We are also very sorry for Aaron’s behaviour and the effect on innocent people involved.”

In addition Mr John Bassi, the offender’s brother-in-law, said this in his letter of 9 December 2020:

“He has expressed genuine remorse, apologised, he has asked me for help. He wants to serve his time and then forge a meaningful life for himself on his release. I know I can help him by offering guidance where I can.”

Mr Bassi does not say that the remorse that the offender expressed to him was the type of remorse that the Court requires, that is victim empathy, but I am satisfied, from what is recorded by Dr Martin and by the offender’s parents and sister, that he does have genuine remorse, the remorse which he pointed to in his oral evidence today, wanting to try to make up to his victims by painting pictures for them and enclosing on the back of the picture a note expressing his apology for the impact that his actions have had on his victim’s lives.

56. I should deal with the circumstances that have obtained since the offender’s arrest. As is clear from the history which I recorded earlier the offender tried to commit suicide whilst in custody at the Waverley Police Station. That has been verified by hospital records where the offender was taken after his attempted overdose. That speaks highly of the offender’s regretting genuinely what he had done and for being very angry with himself for what he had done.

57. Since being in the custodial system the offender has been in protective custody, as I would describe it. The offender’s older brother, Karl, was at one stage an inmate at Parklea Correctional Centre. He managed to expose film of the Parklea Correctional Centre which was aired nationwide, probably on television. That led to a major upset at the Parklea Correctional Centre. Not only were the inmates upset, but also were the prison guards. Parklea Correctional Centre was privately managed. The private managers were dismissed and a new private manager was engaged. According to the evidence given by the offender today 50 prison guards lost their jobs because of the shakeup. The offender’s brother was clearly an object of, hate might be the correct word, of other inmates and of some prison guards. That “hate” has been transferred to this offender through no fault of his own.

56. Dr Martin’s report contains this matter:

“Mr Walton described his mood as reasonable currently although described a highly restricted environment because of being on “non-association”, secondary to issues involving his brother in gaol apparently making a video recording which led to violent repercussions against Mr Walton and anger from security officers. He described his mood as ‘balanced’. He described sleeping six - seven hours per night. He said that he is sometimes tired. He said he exercises in the one hour a day outside his cell, but is otherwise in his cell 23 hours per day and he said he spends his time reading, teaching himself how to paint and draw, doing cookery and writing letters to his family and other inmates. There is very limited mixing because of his non-association status. He did not endorse current or recent experience of psychotic symptoms, attributing this to his mental state being stabilised on medication.”

59. The custodial history contained in exhibit 1 tells me that the offender after his arrest was taken to Surry Hills and then to the Metropolitan Remand Centre and then was transferred to Long Bay Gaol Hospital and then he was sent to Shortland Correctional Centre on 13 March 2020. The offender told me that he left Shortland Correctional Centre after about six months and was then transferred to Long Bay Correctional Centre, and on 25 November 2020 was transferred to Goulburn Correctional Centre, where he is currently incarcerated and from where he gave evidence by audio visual link. He again is locked in his cell 23 hours a day. This is clearly a much closer confinement than the vast majority of prisoners in our correctional system and is not due to any act, default or failing of the offender, but rather is for his protection because of things done not by him but by his brother, who has now being discharged from prison, lives on the South Coast of New South Wales and has built himself up to running a business. The offender’s brother is doing well.

60. In addition the offender told me that on his first entrance into the custodial environment he was stabbed three times in the neck and was in danger of losing his life but for medical intervention. I have recited those facts to show that the offender’s experience of custody is much more onerous than that of nearly every other prisoner, and will probably remain so until his discharge from custody.

Consideration

61. It has been submitted by Ms Hall on behalf of the offender that he is at the cross-roads. Over the last 16 years I have heard many similar submissions. However, I accept that on this occasion that is the reality. The offender is now 31 years old. He was given a lifeline by Conlon DCJ, but the offender’s own actions blasted his Honour’s expectations. I told the offender when he was giving evidence that should he not rehabilitate himself, should he not put aside his drug and alcohol addictions and do all that is required to overcome then, he is likely to reoffend and be incarcerated again and that will likely lead to his becoming institutionalised, that is being unable to exist except a gaol environment. The offender is now at an age when to lead a normal pro social life, to think about finding a partner and establishing a family and supporting his spouse and children he will have to go “straight” and if he relapses again it is unlikely he will ever be able to achieve those desirable aims.

62. Whilst the prospects of rehabilitation are guarded, things on this occasion point even more strongly to successful rehabilitation than they did when the offender appeared before Conlon DCJ. I accept the offender has greater insight. He must realise that he will need as much assistance as he can to overcome his drug and alcohol addictions and control his mental health. Corrective Services will do what they can whilst he is in custody, but when released from custody he must continue, for example, to do drug and alcohol rehabilitation, undergoing testing for use of drugs to ensure that he does not relapse again to illicit drug use, and to undergo such counselling as will keep him on the straight and narrow. As I said, the prospects of rehabilitation are guarded, because of the prior relapse after the sentence was imposed by Conlon DCJ, but they are just as promising and the offender must seize the opportunity which I intend to give to him.

63. This is a matter where clearly an aggregate sentence is called for. In respect of the first offence, sequence 1, the police pursuit, as I have already said that the maximum penalty is three years imprisonment. The offence is below the mid-range of objective seriousness. I believe the starting point for the sentencing exercise is 15 months imprisonment. It is common ground that the offender is entitled to a discount in respect of the sentences to be passed upon him of 25%. That is, on this occasion, a statutory discount, not a judge-imposed discount. If I discount 15 months by 25% and round it down, as I am required to do, the appropriate sentence is 11 months. That will be the indicative sentence for that offence.

64. In respect of each of sequence 2 and 3, as I have already indicated the maximum penalty for an aggravated breaking, entering and commit a serious indictable offence is 20 years imprisonment. Parliament has prescribed a standard non-parole period of five years. Whilst I am concerned only at this stage with making indicative sentences I am required, because of the existence of the standard non-parole period, to indicate the non-parole period. Doing the best I can, I believe that the appropriate head sentence for each of these offences is four and a half years. If I reduce that by 25% I come to a head sentence of three years and seven months. I would fix a non-parole period of two years and six months in respect of each of those offences.

65. The sequence 5 offence, taking into account the matter on the Form 1 which was the taking of the motor vehicle, I start with a head sentence of three years and six months. Reducing that by 25% I come to the head sentence of two years and seven months.

66. The sequence 7 offence is the breaking, entering and stealing from the Hotel. I start with a theoretical head sentence of one year. I reduce that to nine months to account for the offender’s early guilty plea.

67. In respect of the common assault, in my view, the sentence should be a one month fixed sentence.

68. The total of all the head sentences that I have just described is, if my mathematics be correct, 11 years and six months.

69. In fixing the aggregate sentence I firmly bear in mind the circumstances of the offender’s incarceration since he was taken into custody by the police and then transferred to Corrective Services. But for the offender’s circumstances of incarceration I would consider an aggregate sentence of somewhere between seven years and seven and a half years. Bearing in mind what I have heard about the offender’s circumstances of incarceration I fix an aggregate head sentence of six years.

70. The question then becomes what should be the non-parole period? In my view, special circumstances exist. Clearly the offender will, when released from custody, require extensive assistance and supervision by Corrective Services to ensure that he remains abstinent from drugs and alcohol, that he maintains his current resolve to live a normal life. The offender is in that regard being realistic. His parents are offering a return to their home in Wollongong. The offender, whilst obviously appreciative of his parent’s assistance, believes that he should leave the area where he had formed a large number of bad associations with people who are unsocial. He would like to live either with his brother on the South Coast and work with him as a cement renderer, or live with his sister and brother-in-law at Cordeaux Heights, which is an outer suburb of Wollongong, and work for his brother-in-law, who is an executive in a formwork carpentry business. The offender is by trade a bricklayer, so that both of those occupations would be open to him by reason of his background in the building industry. However, it is not only the question of having employment to go to, but having assistance from Corrective Services to undergo alcohol and drug rehabilitation and counselling and testing.

71. I have reached the view that the appropriate non-parole period is three years and six months. The sentence will commence on 22 November 2019.

72. Aaron Neil Walton, on each of the offences to which you have pleaded guilty you are convicted. I sentence you to imprisonment. I set a non parole period of three years and six months, commencing on 22 November 2019 and expiring on 21 May 2023. I impose a further period of imprisonment of two years and six months to commence upon the expiration of the non-parole period and expiring on 21 November 2025. The total sentence is, therefore, six years, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. In passing that sentence I have taken into account the matter on the Form 1.

73. In respect of the three offences known as sequence 6, sequence 11 and sequence 13, contained on the certificate pursuant to s 166 of the Criminal Procedure Act 1986, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 I record a conviction, but impose no other penalty. You are disqualified from driving for 12 months.

Good luck to you, Mr Walton.

OFFENDER: Thank you very much, your Honour.

HIS HONOUR: You’re welcome. The hardest thing for me, Mr Walton, is this, for most of my life your first name Aaron was pronounced Airon, until the Americans got hold of it and started to mispronounce it as if it should be spelt A-R-R-A-N which is an island off the coast in the Firth of Clyde, just off the coast of Glasgow. Anyway such is life, you can never rely on the American pronunciation of anything.

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Decision last updated: 03 August 2021