Secretary to the Department of Justice v Walls
[2016] VCC 993
•14 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00001
| SECRETARY TO THE DEPARTMENT OF JUSTICE |
| v |
| DANIEL LUKE WALLS |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 April and 4 July 2016 | |
DATE OF SENTENCE: | 14 July 2016 | |
CASE MAY BE CITED AS: | Secretary to Department of Justice v Walls | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 993 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Secretary | Mr O.P. Holdenson QC | Victorian Government Solicitors Office |
| For the Accused | Mr G. Hughan | SNH Lawyers |
HER HONOUR:
1 Daniel Luke Wallis, you have pleaded guilty to seven charges of breaching a Supervision Order and one charge of breaching an Interim Supervision Order (ISO) by failing to comply with various conditions of the orders pursuant to s160 Serious Sex Offenders (Detention & Supervision) Act 2009 (the Act).
2 Charge 1 is a rolled-up charge involving two occasions when you failed to submit to urinalysis testing whilst on the ISO.
3 Charge 3 involved ten separate occasions, rolled-up into the one charge, when you failed to submit to urinalysis testing on the Supervision Order.
4 Charge 13 was a single instance of using a prohibited drug, specifically cannabis whilst on the Supervision Order.
5 Charge 14 involved four occasions in that rolled-up charge in which you failed to report to your specialist case manager whilst on the Supervision Order.
6 Charge 18 involved two occasions in that rolled-upcharge where you failed to participate in treatment whilst on the Supervision Order.
7 Charge 21 involved a single occasion when you used prohibited drugs, specifically cannabis whilst on the Supervision Order.
8 Charge 23 is a single occasion when you used a prohibited drug, namely cannabis whilst on the Supervision Order.
9 Charge 24 involved two occasions in that rolled-up charge when you failed to submit to urinalysis testing whilst on the Supervision Order.
10 The maximum penalty for each charge pursuant to s160(1) of the Act is level 6 imprisonment (five years maximum). As these offences are prosecuted summarily, such granted by me on 21 April 2016, there is a jurisdictional limit for each charge of two years' imprisonment to a maximum total of five years' imprisonment (for all charges).
11 By way of background to these charges, you were made the subject of an ISO by order of his Honour Judge Chettle to commence on 11 January 2015.
12 Shortly thereafter on 3 March 2015, you were convicted and sentenced by her Honour Judge Sexton, to a total effective sentence of four months' imprisonment on four charges of breaching that ISO. Specifically, you failed to attend Dandenong Community Correctional Services when directed, failed to reside each night at your mother’s address in Beaconsfield, used prohibited drugs (synthetic cannabis) and knowingly had contact with a female child between 10 and 16 years (the victim of your index offending).
13 Before me was the sentence of her Honour in which her Honour set out the circumstances relevant to those breaches (paragraphs 8 to 11). I discussed these charges with Mr Holdenson, who appeared on behalf of the Secretary, and it was confirmed each charge was a stand-alone charge, that is not ‘rolled-up’ charges.
14 On 23 March 2015, Judge Sexton ordered the ISO be extended until the application for a Supervision Order was finally determined.
15 On 30 June 2015, I ordered you be subject to a Supervision Order which commenced on that day and to operate for a period of three years.
16 I turn to the background to your breaches of these orders before me.
17 On 27 May 2015, specialist case manager (SCM) Kira Turley undertook your formal induction to Corella Place, at that time explaining the conditions of the ISO to you. Specifically the ISO contained conditions 5.6 and 5.7 referred to within prosecution opening (paragraph 12).
18 Pursuant to ss118 and 121 the Act, on 12 and 23 January 2015 the Adult Parole Board (APB) issued instructions and directions regarding the ISO, none of which related to conditions 5.6 and 5.7 of the ISO.
19 On 3 July 2015, SCM Turley then undertook your formal induction to the Supervision Order at Corella Place, and explained the conditions of the order to you. You refused to sign a copy of the Supervision Order acknowledging the conditions, saying you did not believe you should be subject to the Supervision Order. You said, “If I don’t sign it, you can’t make me do anything.” SCM Turley informed you that regardless of whether you signed a copy of the order or not, you would be subject to the conditions.
20 The Supervision Order contained conditions 5.4, 6.3, 6.7 and 6.8 as stated in the prosecution opening (paragraph 15).
21 Pursuant to ss118 and 121 of the Act, on 20 July 2015, the APB issued further instructions and directions regarding 6.3 of the Supervision Order as set out in the prosecution opening (paragraph 16).
22 In the prosecution opening was an outline of your breaches before me.
23 On two separate dates in June, you failed to comply with condition 5.7 of the ISO by failing to submit to urinalysis for the detection of drug use.
24 Specifically, on 11 June 2015 at Corella Place, you were observed to be slurring, incoherent and staggering and that you stated “I'm smashed”. When you attended Dorevitch Pathology that same afternoon you were observed to be stumbling, unsteady on your feet and argumentative.
25 On 24 June 2015 at Dorevitch Pathology, you again failed to provide a urine sample.
26 Turning to Charge 3, referrable to ten occasions where you failed to comply with condition 6.8 of the Supervision Order by failing to submit to urinalysis for the detection of drug use. The first was on 29 July 2015, then three occasions in August, twice in September, three in October and one in November. Reference was made in the prosecution opening to your poor attitude towards Dorevitch Pathology staff when attempts were made to obtain that sample. I note your instructions to your counsel, Mr Hughan, that you denied you used the language reported.
27 It is clear, however, on each of those ten occasions you failed to submit to urinalysis on those dates and made excuses to avoid urinalysis testing.
28 Charge 13 referred to a breach of condition 6.7 of the Supervision Order. A urine sample was provided by you on 29 October 2015 which tested positive for cannabinoids.
29 Charge 14 related to four separate occasions, twice in August, one in September and one in October, when you failed to comply with condition 5.4 in that you failed to attend supervision appointments on each of those dates with SCM Turley.
30 Relevant to Charge 18, on two occasions, once in September and once in November, you failed to comply with condition 6.3, in that you failed to participate in treatment or rehabilitation programs or activities. Specifically you missed SOATS appointments on both those days.
31 It was reported on 25 September 2015 you said you had missed the appointment on 14 September 2015, as you did not want to go to treatment.
32 Charge 21 was referrable to your failure to comply with condition 6.7 of the Supervision Order. You submitted to urinalysis on 17 February 2016, however the urine sample tested positive for cannabinoids.
33 Charge 23 was referrable to a breach of condition 6.7 of the Supervision Order. On 29 March 2016 you submitted to urinalysis at Dorevitch Pathology and that sample tested positive for cannabinoids.
34 Charge 24 was referrable to two occasions in March when you failed to comply with condition 6.8 of the Supervision Order by failing to submit to urinalysis for the detection of drug use.
35 I note all of these breaches occurred whilst you were a resident at Corella Place.
36 You have, through your counsel, admitted each of the charges. I find all charges proven.
37 Your prior criminal history was also tendered.
38 Mr Holdenson referred to your previous numerous breaches of court orders commencing as early as 8 December 2006, when you breached probation and failed to answer bail.
39 You had also appeared at court and for failing to answer bail on a number of occasions, on 5 December 2008, 10 March 2010, 9 July 2013, 1 October 2013 and 6 May 2015.
40 You also appeared at court on 26 June 2010 on a charge of breaching a suspended sentence, then on 1 October 2013 for contravening a community correction order.
41 Your continued breach of court orders and the ISO and Supervision Order causes me to have grave concerns regarding your rehabilitation prospects.
42 I accept you are youngish, at age 27, however remain concerned whether you will be successfully rehabilitated. I must however not "give up" on your prospects of eventual rehabilitation and when sentencing you I must seek to maximise your chances of rehabilitation as they are.
43 Placed before me by Mr Holdenson were a number of authorities referrable to current sentencing practices, and relevant sentencing considerations for breaches of supervision orders and interim supervision orders.
44 As I discussed with Mr Holdenson, it is difficult comparing cases factually, as facts vary enormously case to case as do matters in mitigation of sentence and personal to offenders.
45 There are, however, a number of sentencing principles referred to within the authorities of assistance. In particularl I refer to Secretary to Department of Justice v AG[1], the decision of DPP v S[2], a decision of her Honour Judge Campton, DPP v SCC[3], another decision of her Honour Judge Campton.
[1] 19 December 2012
[2] 23 June 2014
[3] 4 December 2014
46 It is clear from those authorities there is a need for general deterrence and in your case also a need for specific deterrence when sentencing you.
47 The supervision order is a system designed to protect the community and the system does not work if people do not obey the rules of the orders that they are on (Acting Secretary Department of Justice v CGM[4]). The penalty I impose today will hopefully encourage you to not commit such offences in the future or breaches.
[4] (2012) VSC 49
48 Your counsel, Mr Hughan, provided a chronology and outline of submissions prepared on your behalf for the plea hearing.
49 He also provided a list of the cases which have dealt with offences of breaching supervision orders and the penalties imposed. Such a list is of course helpful. However as I have said, their use is limited in the sense to which I have earlier referred.
50 Mr Hughan referred to you having pleaded guilty to the charges before me and of course your plea of guilty is a relevant sentencing consideration in mitigation of sentence. You have pleaded guilty to these offences and are entitled to have that fact taken into account in your favour and I do so. The community by your pleas of guilty has been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. I also take into account there have been efforts over the past few months to resolve your offending to suitable charges and of course that has now occurred.
51 In the circumstances, I accept that your plea of guilty indicates some remorse for your offending, although I am concerned about the extent of that remorse given your repeated breaches.
52 Mr Hughan conceded the offences before me were serious, and they are. He also accepted that the system of supervision orders was to protect the community and that the system did not work if people like you did not obey the rules of the order.
53 Turning to your relevant personal circumstances, Mr Hughan acknowledged your relevant prior criminal history which included a prior conviction for breaching the interim supervision order.
54 Mr Hughan submitted you had a limited ability to consider and appreciate the consequences of your breaching, as a result of your ABI and submitted there was a connection between your mental impairment and this offending. He relied upon the decision of her Honour Judge Sexton of 3 March 2015 (paragraphs 22 and 23 in her reasons for decision) in which her Honour referred to the sentence imposed by his Honour Judge Taft on 25 June 2014 and the reports before his Honour at that hearing and his Honour’s statement then that:
“I accept that your post-traumatic symptoms will make your service of a prison sentence more burdensome. More generally, I consider that your difficulty in processing information and your limited ability to consider the consequences of your conduct which partially arises from an established acquired brain injury must to some degree moderate any sentence to be imposed upon you.”
55 Mr Hughan submitted the principles in R vVerdins & Ors[5] were enlivened when sentencing you due to your acquired brain injury (ABI) and low intellectual functioning. As such he submitted you were not an appropriate vehicle for general deterrence. I discussed this at some length with him as the transcript will reveal.
[5] (2007) 16 VR 269
56 In my opinion, there is no evidentiary foundation between any ‘mental impairment’ (or ABI) and your failure to comply with the supervision order/ISO in the charges before me, as defined within the authorities that have considered the applicability of Verdins principles.
57 I accept the submission of Mr Holdenson that relevant to the breach offences before me, you were aware of your problems of drug use. There was no "evidentiary basis" for concluding any mental impairment you had impacted upon your ability to make rational choices regarding compliance with the orders, that is the ISO and the Supervision Order.
58 Mr Hughan sought an opportunity to obtain further information regarding two certificates he understood had been given to his instructing solicitor which perhaps provided an explanation for your failing to provide a sample on two of the dates before me. He was given that time, as the transcript before this sentencing will reveal. No certificates are now being relied upon.
59 Mr Hughan conceded a term of imprisonment was the only appropriate sentence for your offending before me, however urged your offending was not as serious as some of your previous breaches, in particular one dealt with by Judge Sexton which involved you having contact with your earlier victim.
60 Reference was also made by Mr Hughan to counselling that you had previously undertaken, referring to a report dated 30 March 2016 by Belinda Ellis, Acting Manager, Statewide Operations – Sex Offender Management Branch, which had previously been placed before me as an exhibit on 31 March 2016. In that report Ms Ellis referred to the Supervision Order application hearing before me in June 2015.
61
During the course of the Supervision Order application, Mr Cummins and
Mr Candlish, both ‘experts’, agreed you required intensive drug and alcohol treatment three or four times per week, and could be assessed for your suitability for a residential treatment program. At that time, Ms Danelle Windley, of the Sex Offender Management Branch, gave evidence firstly that you needed to engage in treatment readiness for such to be appropriate, that is, a residential treatment program.
62 At the Supervision Order hearing I discussed with your counsel the possibility that depending upon satisfactory participation in treatment, the door would be ‘left open for you’ to possibly return to a rehabilitation centre in the community. Unfortunately, you did not maintain your commitment to reducing your drug intake, as evidenced by your breaches before me.
63 I was also advised of your attendance with Caleb Lourensz (Forensic Alcohol and Other Drug Clinician, Grampians Community Health Horsham) between July 2015 and March 2016 (30 sessions).
64 You reported wanting regular counselling and behaving appropriate during counselling, although were reported as reluctant to explore triggers and warning signs in detail, shutting the conversation down when such discussions were initiated.
65 It was also observed that you were happy to participate in discussions on a superficial topic not directly related to your treatment.
66 It was also noted your responses to relapse prevention and coping strategies were limited and you had not fully identified some of the challenges you faced in being drug-free in the community. Your counselling to date, however, appeared to provide you with a positive outlet for you to speak about your current life pressures and stress.
67 In addition, Mr Hughan referred to your attending with Ms Emma Mackley, Drug & Alcohol Withdrawal Nurse, Grampians Community Health Stawell, for fortnightly counselling sessions, having been referred to her through Mr Lourensz on 3 August 2015. You attended 14 sessions with her and it was anticipated you would continue fortnightly sessions into the foreseeable future. Inquiries were at that stage being made as to the possibility of your suitability for admission into residential drug rehabilitation centres.
68 Unfortunately, you have not embraced that treatment evidenced by your continued breaching of the order. Mr Hughan agreed that you knew you had to improve your behaviour before rehabilitation was likely to be considered again. I specifically mean rehabilitation centres.
69 Mr Lourensz advised that you were reluctant to explore triggers and warning signs in detail.
70 I was told you were currently at the Metropolitan Remand Centre and you are on the Methadone program with a dosage of 70 ml per day. You were currently in custody for offences alleged to have occurred at Corella Place and due for hearing at Ballarat Magistrates’ Court on 25 October 2016.
71 It was submitted you would find your time in custody difficult as you have made an allegation of having been sexually assaulted at Corella Place, and a statement to that effect in March of this year.
72 Mr Holdenson submitted regarding Mr Hughan’s reference to your drug and alcohol counselling, all of that, he said, preceded the occurrence of the breaches before me. You were, Mr Holdenson submitted, well aware of your obligations under the Supervision Order to submit to testing and not use drugs. I agree.
73 Mr Holdenson submitted it would be inappropriate for any moderation to be given to general deterrence when sentencing you. I agree.
74 Mr Hughan referred to your young age at sentence, being 27, submitting that you were immature and he also submitted you were still capable of rehabilitation.
75 As I have said, in sentencing you I must of course take into account your prospects of rehabilitation as they may be, of which I have guarded optimism.
76 There is also the need for general deterrence when sentencing you.
77 There is also the need for specific deterrence given your previous breaches of various orders, that is the court orders, and also a breach of an ISO. You need to understand the consequences of you not doing what the authorities tell you when subject to a Supervision Order. It is also important that others on ISOs and supervision orders also understand the importance of abiding by conditions attached to their orders. The efficacy of the whole system depends on orders being properly imposed and adequately maintained.
78 Whilst there is no suggestion that your breaches before me were preparatory to the commission of further offending, it is nevertheless concerning given your risk assessment by Mr Candlish in his report, which was filed at the time of the application for the Supervision Order. Your risk, he said, would increase in the context of drug and alcohol intoxication and with lifestyle instability (see my Reasons for Decision 30 June 2015, paragraph 61). It is clear you need to address your alcohol and drug use for you to no longer be a risk to the community when ultimately released back into it.
79 In all the circumstances, I consider a term of imprisonment to be the only appropriate disposition.
80 I note when sentencing that Charges 1, 3, 14, 18 and 24 are rolled-up charges, and when sentencing the applicable principles are stated in R v Jones[6] with approval in PDA v The Queen[7].
[6] [2014] VSCA 68
[7] [2010 VSCA 94
81 I am also conscious when sentencing of the need to take into account the principles of totality.
82 I sentence you as follows.
83 On Charges 1, 3, 13, 14, 18, 21, 23 and 24, I sentence you to an aggregate sentence of 8 months' imprisonment. I do not declare a non-parole period.
84 Pursuant to s18(4) Sentencing Act 1991, I declare, you have not spent any days in custody by way of pre-sentence detention for these breaching offences, and I direct that be entered into the records of the court.
85 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to 12 months' imprisonment and not imposed a non-parole period.
86 Now anyone want any help with anything?
87 MR HOLDENSON: Well to answer Your Honour's question, there is no PSD.
88 HER HONOUR: Excellent.
89 MR HOLDENSON: And as a consequence, Your Honour's declaration is correct.
90 HER HONOUR: Good, excellent, agree?
91 MR HUGHAN: I agree with that, Your Honour.
92 HER HONOUR: All right. Now it is all clear, no non-parole period, I do not have to set it, I am aware of that, I have the option - no I do not, whatever, the 12 months, but I am not even referring to that. There would have been no non-parole periods in the sentence imposed now or under the 6AAA. So I hope that is clear, I think I used a couple of negatives there, but I will need to make that abundantly clear.
93 MR HUGHAN: It seems abundantly clear to me, Your Honour.
94 HER HONOUR: Good, excellent. All right. Is there anything further required?
95 HER HONOUR: Thank you both.
- - - - - -
0