DPP v Walls [2017] VCC 1676 (2 November 2017)

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL LUKE WALLS

JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2017
DATE OF SENTENCE:	2 November 2017
CASE MAY BE CITED AS:	DPP v Walls
MEDIUM NEUTRAL CITATION:	[2017] VCC 1676

APPEARANCES:	Counsel	Solicitors
For the Secretary to the Department of Justice & Regulation	Ms F. Holmes	Victorian Government Solicitors Office

For the Prosecution	Ms K. Churchill	Office of Public Prosecutions

For the Accused	Ms E. Ramsay	Victoria Legal Aid

1 Daniel Walls, you have pleaded guilty to two charges brought against you by the Secretary to the Department of Justice and Regulation (the Secretary) and one charge brought by the Director of Public Prosecutions (the Director).

2 Charge 2 [CR-17-01240] relating to those brought by the Secretary, alleges that whilst you were subject to a supervision order you failed, without reasonable excuse, to comply with condition 5.4 of that order, by failing to report to a person nominated by the Secretary for the purposes of the Serious Sex Offenders (Detention and Supervision) Act 2009 (the Act). Specifically that involved you on 27 April 2017, failing to attend a supervision appointment as required. You have also pleaded guilty to Charge 3 [CR-17-01240] that, while subject to the supervision order, you failed without reasonable excuse to comply with condition 4.5 of that order, by using prohibited drugs, namely synthetic cannabinoids. That also involved offending on 27 April 2017. You submitted to urinalysis tested on that date and that sample subsequently tested positive, as I said, for synthetic cannabinoids. Two other charges, Charges 1 and 4, were withdrawn.

3 Turning to the charge prosecuted by the Director [CR-17-01348]. On 20 June 2017, you failed to comply with conditions of a supervision order, namely 3.2, by committing a violent offence, and 3.4, engaging in conduct that threatened the safety of any person, including you.

4 Summary jurisdiction was sought by your counsel and consented to by Ms Holmes for the Secretary and Ms Churchill for the prosecution, and granted in relation to each of the charges before me. Thus, the maximum penalty applicable to each offence is two years’ imprisonment.

5 You are currently on remand for the offence brought against you by the Director and have spent 97 days in custody by way of presentence detention, relevant to that charge. Well certainly at the time of the plea hearing. At any rate, I will come to the current PSD in a minute.

6 There are no days to formally be declared relevant to the offending brought by the Secretary.

8 Briefly by way of chronology and background. On 18 December 2014, his Honour Judge Chettle of this court placed you on an interim supervision order (ISO) pursuant to the Act from 11 January 2015, for a period of four months.

9 On 30 June 2015, I made a supervision order to commence on 30 June 2015, for a period of three years. That order was reviewed by me on 3 April 2017 and the order was confirmed, both removing and adding conditions to that earlier order.

10 Also by way of background to your breaches now before me, you had previously been dealt with for breaching a supervision order and were sentenced by

her Honour Judge Sexton on 3 March 2015. At a further hearing on 14 July 2016 before me, you were again sentenced for breaching the order.

11 Regarding your offending dealt with by Judge Sexton on 3 March 2015, you were convicted of four charges of failing to comply with your ISO, including by use of synthetic cannabis. Her Honour sentenced you to four months’ imprisonment. The circumstances of that offending were set out in paragraph 12 of the Director’s written outline of submissions before me, dated 19 October 2017 (paragraph 12) and also contained within Her Honour’s reasons for sentence of 3 March 2015.

12 On 14 July 2016, you appeared before me, as I previously stated, and were convicted of seven charges of breaching a supervision order and one charge of breach of the ISO. The charges involved two occasions you failed to submit to urine testing whilst on the ISO. Charge 3 involved ten separate occasions of failing to submit to urinalysis testing. Charge 13 involved a single instance of using a prohibited drug, specifically cannabis, whilst on the supervision order. Charge 14 involved four occasions on which you failed to report to your specialist case manager whilst on the supervision order. Charge 18 involved two occasions when you failed to participate in treatment whilst on the supervision order. Charge 21 involved a single occasion when you used cannabis whilst on the supervision order. Charge 23 involved a single occasion when you used cannabis whilst on the supervision order. Charge 24 involved two occasions where you failed to submit to urinalysis testing whilst on the supervision order.

13 You were convicted and sentenced to a total effective aggregate sentence for that offending to eight months’ imprisonment.

15 At that time you were in the care of the Ballarat Base Hospital, following taking an overdose of Panadol. In the hospital you were supervised by two Corrections Victoria carers. At lunchtime you were given some plastic cutlery to assist you with your food. You confronted one of the carers, requesting metal cutlery. That was refused, as you had allegedly attempted to harm yourself with metal cutlery the prior evening.

16 You then verbally abused and walked past the carers to the kitchen. You took something from the cutlery area and pushed back past the carers into your room and slammed the door. The carers observed you with something in your hand, making a cutting motion on your wrist. One of the carers saw you with a metal knife and heard you threaten the other carer, “I should stab you with this.”

A scuffle ensued. You kicked and struck out at the carer until both carers and a hospital security guard assisted the carers to remove the knife from you and restrain you.

17 By committing a violent offence, namely the assaults and threatening to inflict serious injury, you were in breach of the supervision order.

18 You were arrested by police at the hospital and taken to Ballarat Police Station, but not interviewed.

19 On 17 July 2017, you pleaded guilty at the Magistrates’ Court to three charges of unlawful assault and one charge of threat to inflict serious injury, relevant to your offending on 20 June and were convicted and sentenced to an aggregate of 30 days’ imprisonment, with 28 days reckoned as presentence detention.

20 You were remanded in custody upon your arrest on 20 June 2017 and had been in custody for a total of 127 days as at 24 October 2017 (not including the end date). You were sentenced on 17 July 2017, as I said, to 30 days’ imprisonment, with 28 of those days taken into account as presentence detention. That resulted in a total of 97 days to be declared as presentence detention, now 105 days (up to and including yesterday, 1 November 2017) by way of presentence detention.

21 Following serving the sentence I imposed of eight months’ imprisonment, you were released from custody on 13 March 2017 to reside at Corella Place.

22 Staff at Corella Place documented numerous incidents involving you, following your release from custody and a number of those incidents were referred to in the prosecution opening, relied upon by the Secretary as the context of your offending.

23 I am aware Ms Ramsay, who appeared on your behalf, submitted that there was no proof you were affected by drugs on any of the occasions referred to in those incidents. You instructed that your appearance was the result of a change in your prescribed medication and not drug use. I am conscious you have not been charged with use of cannabis or use of other illicit substances on any other occasion since your return to Corella Place.

25 Regarding Charge 3, to which you have pleaded guilty, the Secretary alleged that you failed, without reasonable excuse, to comply with condition 4.5 of the supervision order, by using a prohibited drug. On 27 April 2017, you were on an accompanied outing with SCWs to Ballarat Community Health Services in Lucas, to be assessed for your eligibility for a drug and alcohol rehabilitation program. Following the interview with the assessor, staff were advised you were not suitable for the program, for reasons which included your

a sample for urinalysis and on 27 April 2017, you submitted to that testing. Subsequently you tested positive for synthetic cannabinoid.

27 At a subsequent supervision appointment on 26 May 2017, SCM Sarah Gledhill discussed the result of that test. You said you had only used synthetic cannabis on one occasion and said your supervision order was not clear with regard to the use of synthetic cannabis and that you would be allowed to use it if you were in the community. I note, however in this regard, the sentencing remarks of Judge Sexton on 3 March 2015 (paragraph 17). I have no doubt you were aware of the prohibition on your use of the synthetic cannabis.

28 You described to SCM Gledhill that some strands of synthetic cannabis were legal and that once a chemical became illegal, another blend would be made which was lawful. You said you had smoked cannabis since you were 12 or 13 years of age to help you manage your stress. You said you felt your presentation upon using synthetic cannabis was similar to using normal cannabis, however the effects did not last as long.

29 Turning to Charge 2. On that same day, 27 April 2017, you failed to comply with condition 3.7 of the supervision order, by failing to report for supervision.

30 You had previously been directed by SCM, Ms Reber, to attend a supervision appointment with her at Corella Place at 4.30 pm. That appointment had been discussed with you the day prior, ie: on 26 April 2017, when you attended the administration office at Corella Place for your methadone appointment. You had also been reminded of that appointment by the accompanying SCWs earlier on 27 April 2017. You failed to attend that supervision appointment.

31 You have pleaded guilty to all these charges and I accept that your pleas of guilty were entered at a relatively early stage, in particular regarding your breach on 20 June 2017. I accept you also pleaded guilty, albeit at a later stage, to the offending in Charges 2 and 3 brought by the Secretary, that it would appear that there were some negotiations with the prosecution prior to your pleas being entered to those two charges.

32 You are entitled to have the fact of your pleas of guilty taken into account in your favour when sentencing and I do so. Your pleas of guilty have saved the community the cost of a trial and witnesses have not been required to give evidence upon your trial.

33 I accept your pleas of guilty indicate some remorse for your offending, although I am concerned about the extent of your remorse, given your earlier breach offending dealt with on 3 March 2015 and 14 July 2016.

34 I am conscious when sentencing you for the offence brought by the Director, you are not to be re-sentenced for your offending at the hospital, such having been dealt with at the Magistrates’ Court on 17 July 2017.

35 Ms Ramsay provided an outline of written submissions which she relied upon during the course of your plea hearing. You are 28 years of age at sentence. Your mother and step-father were in court to support you at the hearing.

Ms Ramsay submitted that when you were initially returned to Corella Place following review of the order in April 2017, you were highly motivated. You were, she submitted and I accept from the material, doing all you could to personally find drug and alcohol courses you could attend. Your mother had also assisted you to try and find drug and alcohol counselling and had tried to arrange attendances with ARBIAS.

36 Ms Ramsay submitted that despite attending for drug and alcohol service assessments, you were not accepted into programs. Ms Ramsay submitted you had made many attempts to engage with drug and alcohol counsellors, which did not come to fruition, she urged through no fault of yours. There appears to be some support for those attempts having been made by you in the material before me.

37 Ms Ramsay referred, however, to your declining mental health at Corella Place. That you had attended at the Corella Place office at one stage, indicating you were feeling suicidal. Subsequent to that, you took the overdose of Panadol, to which I have previously referred, which led to your admission to hospital on 10 June 2017.

38 You accepted your offending at Ballarat Hospital was serious offending and, of course, it was.

39 Regarding failing to attend your appointment on 27 April, Ms Ramsay referred to you earlier that same day having attended with ACSO for a 50 minute assessment session. Upon returning to Corella Place, you were directed to undertake a drug screen, which you did, which detected the synthetic cannabis. Upon later returning to Corella Place, you however, did not attend your supervision appointment at 4.30 pm. You were aware you had that appointment and of course you have entered a plea of guilty to it.

40 Regarding Charges 2 and 3 brought by the Secretary, Ms Ramsay urged that the sentences imposed could be concurrent, conceding ultimately a term of imprisonment was appropriate.

41 She submitted, however, regarding your failure to attend for supervision, that that did not relate to any increase in your risk of re-offending. Also that you had engaged and attended supervision thereafter. She described that offending as a “minor example”. I discussed, however, the previous breaches of the ISO and supervision order as also being a relevant factor to be taken into consideration when assessing the overall gravity of all your offending that is before me.

42 Regarding the charge brought by the Director, s.10(A)(c), Ms Churchill submitted when sentencing you for that offence, she conceded a ‘special reason’ could be found in your case, based on the written submissions of Ms Ramsay and also the report of Dr Gee, to which I shall shortly refer. The prosecution conceded there was a ‘special reason’ why I need not proceed to impose a minimum 12 months’ imprisonment. Ms Ramsay, of course, also urged I find a ‘special reason’.

43 In that regard, I have read, not only the report of Dr Gee, forensic psychologist, dated 7 September 2017, but also the decision of her Honour Judge Quin of this court, in DPP v JD [1], DPP v Hudgson[2] and DPP v BG[3], a decision of her Honour Judge Wilmoth.

44 I turn to the report of Dr Gee. His report, in part, addressed what impact, if any, your impaired mental functioning might have had on your behaviour on 20 June 2017. I have read that report. In brief, Dr Gee concluded your cognitive capacities gave the impression of a person functioning within the low-average range, with your cognitive profile clearly contaminated by an acquired brain injury that undermined aspects of your executive functioning. Dr Gee noted also your significant history of suicidal ideation/intent and observed numerous scars on your arms, arising from past episodes of self-harm. Dr Gee also made reference to medication you were currently prescribed (paragraph 9).

45 Dr Gee noted you generally presented as amenable to attending specialist services, particularly those aimed at enhancing your mental health and wellbeing.

46 Dr Gee referred to your early formative development and having been diagnosed with attention-deficit/hyperactivity disorder. He also referred to injuries sustained by you in 2009, 2011 and 2013, each requiring hospitalisation and resulting in acquired brain injury. There had been, he noted, subsequent changes in your personality and that you displayed compromised social connectedness becoming reliant on substances, (both illicit drugs and prescribed medication) as principal means of self-regulation.

47 A brief description was provided within his report of your offending of 20 June 2017 (paragraph 18).

48 Dr Gee found, following examination, the results were also suggestive of anxiety/depression, post-traumatic stress and substance abuse (principally drug use, but also alcohol). You currently saw the use of substances as a means of reducing tension, enhancing your self-esteem and helping to disconnect you from feelings of social isolation and rejection. Dr Gee noted, unfortunately, your association with substances caused marked social and interpersonal difficulties, which derailed your already reduced adaptive coping capacities and further compromised your personality functioning.

49 He conceded you presented with a “high” degree of anger-endearing conditions, a “high” level of aggressive arousal and a “high” level of

50 Your current presentation, he opined, was best accounted for by way of acquired brain injury and coupled with that, upon the information available to Dr Gee, there was a significant disturbance in your personality functioning.

51 You demonstrated a compromised insight into your mental health needs and struggled with an understanding of the nexus between your presenting symptomology and current/previous life experiences. When under the influence of substances and in combination with your enduring neuro-cognitive position, you were incapable of making reasoned and ordered judgments and your capacity to control your faculties were driven by an impulsive desire for

52 Dr Gee concluded, as such, your recent behaviour (at the hospital) was best conceptualised by way of your minimal capacity for self-regulation, reduced neuro-cognitive capacities, enhanced psychosocial vulnerability, diminished identity/self-worth, reduced affective awareness, pervasive feelings of isolation/loneliness and a highly dis-regulated attempt at managing psychological distress, through externalising and escapist behaviour.

53 At the time of your offending on 20 June, Dr Gee opined there "appeared" to be a causal nexus between your impaired mental functioning and that offending. That the combined effects of your pathology placed you in a position where you would have been more vulnerable than the average person to act in a manner without having given due consideration to the consequences of your actions, and that there was a clearly documented history of you being incapable of regulating/moderating your behaviour.

54 Dr Gee also noted your impairments in mental functioning would make your time within the prison system more difficult than for other persons without your mental health issues.

55 I am satisfied upon the material before me and having heard submissions from counsel, that a "special reason" does exist in your case and as such, it is not appropriate to impose a term of imprisonment relevant to s10AB Sentencing Act 1991.

56 I am also of the opinion, as I discussed with your counsel, that R v Verdins & Ors [4] has some applicability in your case and as I understood it, Ms Churchill conceded Verdins had some applicability.

57 Ms Holmes, on behalf of the Secretary, also conceded that the principles in Verdins had some applicability in your case. Ms Holmes, however, observed that previously in my reasons for sentence of 14 July 2016, such was not found to apply. She conceded that based on the current report of Dr Gee, to which

I have just referred, there should be some moderation of sentence, consistent with those principles. Ms Holmes further submitted that whilst there could be some moderation of both general and specific deterrence, there should be

a greater degree of moderation of specific deterrence than general deterrence. General deterrence, she submitted, remained an important sentencing consideration when sentencing you.

58 Ms Ramsay, as I understood her submissions, agreed with the submission by Ms Holmes, relevant to specific and general deterrence.

59 Returning to her written outline, Ms Ramsay conceded your offending at the hospital was serious and would have been terrifying for the victim. She urged, however, your offending had occurred in the context of you having made

a serious attempt on your own life approximately ten days prior. You were, as she submitted, relying upon the report of Dr Gee, there was, she submitted, evidence of your impaired mental functioning leading up to this violent offending.

60 I again note you have been sentenced previously for that offending at the hospital.

61 Ms Ramsay also referred to your prior criminal history and lack of any other violent offending of this type. Your prior criminal history was also before me.

62 Ms Ramsay referred again to your pleas of guilty to these charges and the timing of them. That whilst you had breached the order on a third occasion, you nevertheless accepted you needed to address your drug use and had personally tried to do so, but with limited success. You had, she urged, by your attempts to obtain drug and alcohol treatment, tried to assist your rehabilitation prospects and she also relied upon the report of Dr Gee (paragraph 34).

63 I have, at best, guarded optimism regarding your rehabilitation prospects. You have a long way to go to address your many issues and some of those will be permanent, despite treatment/counselling. However, when sentencing you,

I must seek to maximise your chances of rehabilitation, as they may be. Obviously to address your drug use will at least be of some benefit to you.

64 Ms Churchill referred to the decision of the Honourable Justice Williams in Acting Secretary to the Department of Justice v McKane [5] wherein her Honour stated:

65 Ms Churchill submitted specific deterrence was a relevant sentencing consideration in your case and she referred to your two previous convictions for breaching your ISO/supervision order. I agree.

66 Ms Churchill also referred to the protection of the community as a paramount sentencing consideration, in particular where you were considered a high risk of sexual recidivism and a moderate-high risk of non-sexual violent recidivism. I agree.

67 Ms Churchill also submitted general deterrence was a relevant sentencing factor. I agree.

68 She conceded you pleaded guilty at an early stage to the charge brought by the Director.

69 I was directed to two decisions involving previous breaches of supervision orders by violent offending, DPP v JD [6] and DPP v BG. It is difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation and personal to any offender. Ultimately I must determine the appropriate sentence, based upon the facts in this case and all matters relevant to you. Those cases do, however, provide some assistance regarding sentences previously imposed.

I must also take into account matters such as general deterrence, which is an important consideration in cases such as this and in your case.

71 There is also the need for specific deterrence when sentencing you, as you have previously been before the court on two occasions for breaching the ISO/supervision order.

72 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This continues to concern me.

73 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.

74 When sentencing you, I take into account principles of proportionality and totality.

81 I direct that 7 days of Charge 2 and 1 month of Charge 3, both those charges having been brought by the Secretary, be served cumulatively upon Charge 1. That results in a total effective sentence of 4 months' and 7 days' imprisonment.

82 For clarity, the orders for cumulation are upon each other and upon the base sentence.

83 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 105 days in custody (up to and including yesterday, which was1 November 2017), by way of presentence detention and I direct that be entered into the records of the court. I will come back to that, I have not done the maths, whether four months and seven days is more than or less than 105, I will come back to that, I have not done that.

84 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these three charges and been found guilty of them, I would have imposed a sentence of 12 months’ imprisonment and not declared a non-parole period.

85 I confirm I have found a ‘special reason’ exists when not imposing a term of not less than 12 months on Charge 1 brought by the Director. Specifically, I so find on the basis of your "impaired mental functioning".

88 MS HOLMES: Could I just clarify, Your Honour? Your Honour imposed two months for the failing to attend supervision and one month for the use of prohibited drug from - - -

95 HER HONOUR: Well it is. So if you are right, if Charge 2 relates to the use of the synthetic substance - - -

101 HER HONOUR: So I will re - good pick up. So I will re-phrase that. Charge 2, these are the - so you follow this, Ms Ramsay, the charges brought by the Secretary, Charge 2, one months' imprisonment. All right? On Charge 3, two months' imprisonment and on the charge brought by the Director of Public Prosecutions, that is, that is on Charge 1, three months.

102 Now that will affect the cumulation. But Charge 1 brought by the Director is the base sentence and I direct that one month of Charge 3.

107 HER HONOUR: Both those charges being brought by the Secretary, be served cumulatively upon Charge 1. That gets you that total effective sentence, which does not change, of four months and seven days. All right, did you follow that?

113 HER HONOUR: Now having said that, I have declared 105 days. What is four months and seven?

116 HER HONOUR: So he has still got - so I can just declare that. Remember we had that discussion about whether if it was more than this, we could - it could be relied upon in a Renzella basis.

120 HER HONOUR: - - - if I declare 107, that has covered - 105, my apologies, up to and including yesterday, that is well covered by the four months and seven days, is that right?

I have now mentioned, as I have now said, rather than having to worry about the combination of the Secretary - Director versus Secretary?

130 HER HONOUR: No, all right. Now were there any other orders? I do not believe there were. So without doing the maths, he has got about, what, three weeks?

132 HER HONOUR: I have not done the maths, obviously. All right. All right then, so can we move on? You are excused if you want to head off.

County Court of Victoria

DPP v Walls [2017] VCC 1676 (2 November 2017)