DPP v Walker

1. Heath Walker (a pseudonym) is to be sentenced in respect of two distinct offences as follows: (a) Burglary, contrary to s 311 of the Criminal Code 2002 (ACT), carrying maximum penalty of 14 years imprisonment, 1400 penalty units, or both (SCCAN 2024/136); and (b) Assault occasioning actual bodily harm, aggravated by family violence, contrary to s 24(1) of the Crimes Act 1900 (ACT), carrying a maximum penalty of 7 years imprisonment (CAN 2024/12028).

2. The burglary offence was committed in January 2024, and the family violence offence in December 2024. The family violence offence was committed while Mr Walker was subject to good behaviour orders for offences including assault. This breach is also to be considered in the sentencing exercise. The family violence nature of the assault also raises for consideration the matters in s 34B of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). 3 ․ In addition, the sentencing exercise raises for consideration the application of the principles from Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry), and R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins). The delineation of these principles is not though necessarily clear, and it is from a combination of these principles that Mr Walker’s moral culpability for the offending, and the role of general deterrence in the sentencing exercise, is reduced.

Burglary offence: 27 January 2024

4. On 27 January 2024 at approximately 3:30am, the occupant of a house on Elimatta Street in Reid was asleep inside his residence. The male victim heard some noises inside the house. He got up and walked down the hallway and into the kitchen. A male, later identified as Mr Walker, was in the kitchen. Mr Walker said that he “didn’t want any trouble”, and the victim responded that he “didn’t want any trouble either”. Mr Walker then left the unit through the back door. Police were contacted and they arrived at approximately 3:57am and spoke with the victim.

5. The victim observed that there were no signs of forced entry, but drawers and cupboards had been left open or ajar. Nothing had been taken from the residence. The victim observed that the driver’s side door of his vehicle, which was parked under an open carport outside, was ajar.

6. Shortly after 5:20am, police received a call from a resident of a house on Elimatta Street. The resident had closed circuit television (CCTV) footage relevant to the investigation, with it subsequently determined that it showed Mr Walker. At approximately 5:30am, a police officer saw a male walking on Elimatta Street towards Ainslie Avenue and spoke with him. The male said that he was walking home to Kanangra Court. Police continued their investigations.

7. On 28 January 2024 at about 12:40am, the same police officer who had spoken to the male on Elimatta Street located Mr Walker at a location on London Circuit. The officer spoke to Mr Walker and asked him if he was the same person that he had spoken to last night in Reid. Mr Walker said “no” and “wrong person” and provided his name.

8. Police continued their conversation with Mr Walker and made observations as to his jewellery and clothing, noting that it matched the description of the person seen on Elimatta Street. Mr Walker was shown an image from the CCTV footage. He said to police that “didn’t steal nothing. Nothing got stolen”. A police officer said to Mr Walker that about five minutes prior to when he was seen the night before, someone was trying to break into a nearby house. Mr Walker responded that the house was not broken into and that he was homeless. Police determined to continue their investigations, and Mr Walker was released.

9. Subsequent investigations confirmed that fingerprints lifted from an item inside the study of the unit belonged to Mr Walker. On 3 February 2024 at approximately 9:30pm, Mr Walker was located by police. He was arrested in relation to the offence. He declined to participate in a record of interview, but stated to police that “nothing got stolen” and he had the following exchange with police: Police Do you know it’s still an offence to enter a premises that you don’t have consent to go into? Mr Walker I thought it was my house. Police Really? Mr Walker No.

10. Any entry to a private home is serious. This was one done in the early hours of the morning when it was likely that an occupant was home, which there was. The victim was disrupted from his sleep to find a person inside of his kitchen. It was undoubtedly a frightening experience for the victim, who will have been left with a sense of unease and a feeling of violation of the security of their home.

11. While no damage was caused to achieve entry, and it was not sophisticated offending, Mr Walker was in the home long enough to access drawers and cupboards, and to move throughout the house. It was, as particularised in the charge, clearly conduct done with intention to commit theft, with the intention seemingly thwarted by the victim’s intervention.

12. I am satisfied that, having considered possible alternatives, no penalty other than imprisonment is appropriate.

13. In R v Stacker [2020] ACTCA 34 at [21] (Stacker), the Court of Appeal cited Fusimalohi v The Queen [2012] ACTCA 49 at [51] in which it was said that decisions as to burglary “show that sentences for burglary in this jurisdiction are generally within the range of imprisonment from one year to two years and six months”. The sentence imposed for the burglary in Stacker was one of eight months imprisonment before reduction for the plea of guilty. This burglary was committed by a 25 year old offender with a criminal history who entered a residential premises using a screwdriver to force open a window, causing damage. It was a more serious example of an offence of burglary than what occurred here, but the sentence imposed was regarded by the Court of Appeal as being “an extremely lenient sentence” (at [22]).

14. Mr Walker entered a plea of guilty at a case conference stage in the Supreme Court. This involved a resolution of the matter which was previously offered by Mr Walker to the prosecution in the Magistrates Court, and was at that stage rejected. The prosecution did not press a submission that the case was overwhelming strong in the circumstances, and did not submit against the plea of guilty being regarded as an early one in the circumstances.

15. A submission was also made on Mr Walker’s behalf that a further reduction is warranted having regard to his assistance in the administration of justice with the only matter ever in issue the originally charged circumstance of aggravation. However, I cannot identify any tangible aspect of assistance beyond the plea of guilty: s 35A(4)(b)(i) Sentencing Act.

16. Despite the plea of guilty not being entered until the matter resolved in the Supreme Court, this was after an early initial attempt at resolution. A reduction in the order of 25 per cent is appropriate. Family violence offence: 2 December 2024

17. At the time of the second offence, Mr Walker was subject to bail for the burglary offence, therefore the offending occurred while on conditional liberty, being an aggravating factor on sentence. His bail conditions included not to consume alcohol.

18. The victim the subject of this offence was the then intimate partner of Mr Walker, with whom he shares an infant child.

19. On Tuesday 2 December at about 6pm, Mr Walker was picked up by the victim. Their child was in the car, along with the victim’s two other young children. As they drove to the shops, the victim and Mr Walker began arguing over the two of them being in a relationship. The facts provide that Mr Walker was “intoxicated, heightened and extremely aggressive”, and was saying words to the effect of “you’re a fucking slut”.

20. As they drove, Mr Walker opened the front passenger door and exited the vehicle. This caused the victim to stop. Mr Walker, “in a very heightened state”, grabbed the victim’s phone and walked around to the driver’s side of the vehicle. He opened the front door while the victim got a hold of his shirt and as Mr Walker was trying to move away, the shirt ripped off of him. A short time later, Mr Walker entered the vehicle again.

21. As the victim began to drive off, Mr Walker again grabbed the victim’s phone. He jumped out of the vehicle again and began yelling words to the effect of “yeah, yeah”, like he was trying to antagonise the victim into a fight. The victim responded with words to the effect of “please just come to the car” and “think about the kids”. Mr Walker got back into the car and handed the victim’s phone back.

22. A short time later, Mr Walker attempted to reach over and grab her vehicle keys from the ignition. The victim blocked him from taking the keys with both of her hands.

23. Mr Walker then walked back around to the driver’s side window. The victim tried starting the vehicle to leave, with no success. Mr Walker approached the driver’s side of the vehicle and tried grabbing the keys out of the ignition again through the open driver’s side window.

24. He then opened the driver’s side door and “aggressively grabbed” the victim with both arms wrapped around her, dragging her out of the vehicle. The victim held onto the steering wheel but was yanked off. During this altercation, the victim received a scratch on her left forearm, and a bruise on her right forearm at the elbow, as well as her left index finger.

25. Mr Walker tried to start the car with the victim being held back initially by a bystander. Mr Walker then exited the vehicle and began chasing one of the bystanders. Mr Walker and the victim both then got back into the vehicle. The victim was the driver, and she began travelling towards the shopping centre.

26. Police were contacted and were provided with a description of the vehicle, and with reports of a male fitting Mr Walker’s description being in the vicinity of the Erindale shops. Police came to locate a male, later identified as Mr Walker, sitting next to the carpark to the rear of the Erindale McDonalds.

27. Mr Walker was arrested. He was in a distressed condition, which caused police to call for an ambulance. He was initially taken to the hospital, and then subsequently remanded in custody.

28. This was a protracted and aggressive assault. It involved derogatory language, and the victim’s sense of security and safety was undermined by the taking of her phone. It was committed in the presence of three children, in a circumstance that put them at risk not only from exposure to the family violence offending, but from the interference with the driver of a vehicle during the course of the assault. As the preamble to the Family Violence Act 2016 (ACT) provides, “children exposed to family violence are particularly vulnerable and the exposure [to family violence] may have serious impacts on their current and future physical, psychological and emotional wellbeing”. It was likely a highly distressing incident for not only the victim, but also the children. The injuries caused to the victim were not particularly serious examples of bodily harm, but there were injuries caused to multiple parts of the body.

29. A high maximum penalty, reflective of the offending being aggravated by family violence applies. I am readily satisfied, having considered possible alternatives, that no penalty other than imprisonment is appropriate.

30. A plea of guilty was entered in relation to this offence in the Magistrates Court, prior to preparation of a brief of evidence. A full reduction of 25 per cent, reflective of significant utilitarian value, is warranted.

Criminal history

31. Mr Walker has a criminal history that includes previous terms of imprisonment for offences of burglary and other property offending, driving offending, and violence offending. He was last convicted in the ACT for offending that occurred in December 2019. He was last convicted in NSW for offences of stalking and contravention of an apprehended violence order in September 2022. In NSW he was placed on a 12 month community correction order in July 2023. The first of the offending that occurred in the current sentencing exercise was committed while subject to that order, amounting to the burglary offence also being committed while on conditional liberty.

32. No leniency is available to Mr Walker with reference to this criminal history. In addition, it establishes that the second offence the subject of sentence here, the assault committed in December 2024, was committed while subject to good behaviour orders imposed by the ACT Magistrates Court on 1 May 2024.

Breach

33. As to the breach matter, the original sentence was imposed for offences of common assault, contrary to s 26(1) of the Crimes Act and carrying a maximum penalty of 2 years imprisonment (CAN 2023/9370), and damage property, contrary to s 116(3) of the Crimes Act and carrying a maximum penalty of 2 years imprisonment, 50 penalty units or both (CAN 2024/ 3663). A good behaviour order of 12 months, pursuant to s 13 of the Sentencing Act, was imposed for each offence. A condition of the order was that Mr Walker was to engage with Yeddung Mura.

34. The assault involved that on 23 September 2023 at about 3:40am, Mr Walker assaulted a security officer of a nightclub. He struck the officer in the face with a closed fist, while holding a cigarette. The photographs relied upon at sentence show that visible marks were caused to the face of the victim of that assault, elevating it to a serious example of common assault. Further, at about 1am on 30 September 2023, after being asked to leave a club venue, Mr Walker placed his hands on a windowpane and headbutted the window. This caused the pane to shatter, costing $2,268.21 to repair.

35. Plainly, the original offending and the offending during the good behaviour order both involved violence, albeit in different contexts. The further offending occurred approximately midway through the order, and Corrective Services otherwise report that Mr Walker has a pattern of non-compliance with court orders. It appears to me, being satisfied that the good behaviour obligations have been breached, that it is appropriate in the circumstances to cancel the good behaviour orders: s 108 Crimes (Sentence Administration) Act 2005 (ACT).

36. As to the consequential resentence exercise, the subsequent offending, and non-compliance with the order that otherwise seemingly occurred, suggests that Mr Walker does not present with the same positive prospects of rehabilitation that were apparent at the time of the original sentencing. Specific deterrence from violent offending, while intoxicated, has particular prominence in the resentencing exercise, albeit the Court must be cautious to not ‘double punish’ in the sentencing exercise. Having considered possible alternatives, I am satisfied that imprisonment is appropriate in respect to both of the offences the subject of resentence. The stage at which pleas of guilty were entered is not known to this Court.

37. The periods to be imposed will be nominal though, having regard to the objective seriousness of the offending, and in recognition of the totality of the overall sentence to be imposed. The appropriate term of imprisonment to be imposed in respect to the common assault offence is more significant than that for the property damage, however, I have taken into account that there is a period of some 23 days in presentence custody that is not otherwise accounted for in the sentences to be imposed. I have had regard to this period in determining the appropriate sentence for the common assault on resentence.

Subjective circumstances

38. Mr Walker is now 25 years of age and was aged 23 years at the time of the offending. He is an Aboriginal man. Through his maternal line his ancestral lands belong to the Yankunytatjara peoples of Central Australia. His biological father is from the Warakuma Community on the edge of the Gibson desert. His connection to culture is described as including that it is thought that his people may have connections to Bunuba of Central Kimberely. Mr Walker has experienced ruptured relational bonds and significant disconnection from his ancestral ties to family, kin, community, and Country.

39. Mr Walker’s subjective circumstances are set out in detail in an intensive correction order assessment report dated 11 March 2025, a neuropsychological assessment report dated 11 March 2025, a paediatrician report dated 24 May 2005, as well as other supporting material as to his mental and cognitive health. In addition, his foster grandmother gave evidence on his behalf at the sentence hearing.

40. Mr Walker describe a loving and supportive upbringing. He was involved in rugby union as a junior and had the opportunity to play internationally for Australia in New Zealand as an adolescent. He has a nurturing, and plainly supportive, relationship with his foster grandmother, and loving relationships with foster parental figures and some siblings. He completed schooling to year 10, and is reported to have been a good student who completed schooling to a high standard. He then engaged in employment and has gained qualifications in trades and the construction sector.

41. Nonethless, Mr Walker’s background and childhood experience is one that is to be regarded as reflective of profound disadvantage and deprivation such that it is not in issue that the principles from Bugmy are enlivened. This is not a negative reflection on those who care for him, who have clearly done so with a significant depth of love and support, but reflective of the environment in which he came to be born and exposed to at points during his childhood. It is unnecessary to set this out in detail, with the prosecution acknowledging that the Bugmy principles are enlivened. Suffice to say that in many respects, Mr Walker demonstrates a depth of resilience and strength, and has many positive qualities despite the adversities he has faced.

42. These adversities include what appears to be the cognitive challenges of Foetal Alcohol Effects (FAE), if not Foetal Alcohol Spectrum Disorder (FASD). The neuropsychological assessment concluded that Mr Walker does not meet the diagnostic criteria for FASD, but noted that the current FASD diagnostic criteria are presently under review. The report from 2005 opines a diagnosis of FAE which is described as a “chronic medical condition almost identical to Foetal Alcohol Syndrome”. Mr Walker’s foster grandmother, while not a medical expert, is the person who knows him best and has clearly made a concerted and comprehensive effort to understand how best to support her grandson, describes that while he may not meet the criteria for FASD, it must only be by a “very slim margin”.

43. The neuropsychologist opines that there is a basis that strongly suggests that Mr Walker was exposed to alcohol in utero. It was further opined that his neurodevelopment has been undoubtedly shaped by factors that can be conceptualised as early life adversity, including exposure to severe violence and relational trauma from a very young age. He likely has an augmented fight-flight threat response, such that he reacts from a place of fear, rather than a rational or logical place.

44. On behalf of Mr Walker it was submitted that the principles from Verdins are enlivened, with reference to limbs one to three. The prosecution cautioned as to the application of this principle given the role of substance use in the offending.

45. I do find that the principle from Verdins has application, although the information before the Court does include that Mr Walker does not have an intellectual disability. He is described as “quite bright” and he is someone who is capable of employment. Denunciation, particularly from family violence offending, remains a relevant sentencing purpose. His cognitive challenges do though have a bearing on the conditions in which the inevitable terms of imprisonment are to be served, with culturally informed support recommended. This is plainly more accessible in the community.

46. In addition to this, it is apparent that Mr Walker’s offending was informed by substance use that occurred in a circumstance of early exposure resulting in adulthood substance use challenges raising the so called Henry principle. While not specifically addressed by the parties, on my review of the material, the principle is enlivened.

47. Mr Walker came to commence use of substances at 16 years of age, when introduced to alcohol and cannabis by older peers and relatives, and he commenced using methamphetamine at 17 years of age. In the experience of this Court, this is a relatively late biological age when considering the application of Henry, however, the experiences of Mr Walker’s infancy and childhood are, I am satisfied on the information available to the Court, likely material in his substance use as an adult. His offending behaviour is clearly informed, if not significantly caused, by such substance use.

48. None of this is said to excuse his offending behaviour. He has committed concerning offences, within a context of ongoing occasions of offending, and seemingly escalation in the seriousness of his conduct. The burglary offence in particular lacks the impulsivity and emotional dysregulation that suggests his cognitive challenges are strongly causative.

49. But the role that Bugmy, Henry, and Verdins have in the offending behaviour, and the extent to which they relate to the offending – to the extent it is necessary that each principle does – has significant relevance in the sentencing exercise. The role in which each of these have contributed to the offending, and to the relevant sentencing considerations and purposes, appears to be at differing degrees. The only conclusion that can be drawn with any certainty is that there is a constellation of the principles from Bugmy, Henry, and Verdins that arises, and there is to be a moderation of moral culpability and general deterrence in the sentences to be imposed as a result.

50. However, the presentation of this constellation in Mr Walker’s case does elevate the role of community protection in the sentence. Mr Walker, while essentially from no doing or choice of his own, has challenges with his cognition and substance use that results in it being of significant concern as to how best to reduce the prospect of reoffending and achieve community protection. Specific deterrence also remains relevant, in particular as to the family violence offence where remorse and insight needs to develop. Mr Walker does not appear to express any depth of understanding as to the harm such offending causes, simply explaining that he was “very intoxicated”, he had a “lot of anger building up” and was “just not thinking at all that day”.

51. Fortunately, for Mr Walker, he has strong protective factors available to him that enable a level of comfort in this regard. He has his foster grandmother and siblings, who provide “unwavering” care, love, safety, and stability. He has secure and supportive housing available with his grandmother, and an intention to engage in physical fitness and employment. He has an apparently genuine commitment and motivation to be a caring and loving father to his son. He has a level of remorse and insight into the seriousness of his behaviour, in particular in relation to the burglary, describing that “I didn’t want to hurt anyone, and I feel bad. I scared and frightened the guy. I just feel so shitty about it”.

52. And, he has an assessment of suitability for an intensive correction order (ICO) by Corrective Services. Corrective Services do observe that Mr Walker may have difficulty in complying with the strict conditions of an ICO and they assess him as having a high risk of general reoffending, however, he is found suitable for a high level of supervision. It is observed that his offending behaviour is reflective of a lack of impulse control, lack of coping skills, substance use and financial pressures. Corrective Services recommend that Mr Walker should “engage with an appropriate Alcohol and Other Drug (AOD) counselling program and mental health supports, and with a job network provider”. Corrective Services opine that “should he continue to make efforts and meaningfully participate in interventions to address his risk factors, his risk of reoffending may reduce over time”.

53. In addition, Mr Walker has available to him a strong support network in the community. I am satisfied that this plan reflects the “well planned throughcare plan” that the neuropsychologist recommends is required to maximise the prospects of reduced recidivism. He has commenced engagement with the Karralika Solaris Therapeutic Community Program, which describe him as “actively practicing behaviour change”, and which has supports available upon any release from custody. He has willingness to engage with Yeddung Mura and the Ngunnawal Bush Healing Farm. The Aboriginal Legal Service Disability Liaison Officer has supported Mr Walker to apply for the National Disability Insurance Scheme to secure supports.

Time in custody

54. Mr Walker was initially remanded in custody in respect to the burglary offence from 3 February 2024 until 24 April 2024 (82 days). He was then arrested following the family violence offence, on 2 December 2024 until the date of sentence (02 April 2024) (122 days). A total period of 204 days has been spent in presentence custody.

55. In this matter, while sentencing for two offences, they are distinct offences separated in both time and type such that no concurrency between the sentence orders is appropriate. Nonetheless, the totality principle is of application such that a crushing sentence is to be avoided.

56. In this matter, it is also the case that there is a not insignificant period of presentence custody that has been served, and an ICO is sought, with the prosecution conceding the appropriateness of such an order. The prosecution acknowledged that the time already served in custody went some way to achieving the purposes of sentencing. In view of the time spent in custody, the prosecution did not oppose an ICO being made.

57. Accordingly, it is relevant in this matter to sentence the distinct offences with reference to distinct sentencing options that are available and appropriate. Consideration

58. It is ultimately appropriate that the sentences to be imposed involve the period served in custody where an amount of this is appropriate to reflect the seriousness of the offending, as well as the other sentencing purposes that apply. This period relates to the family violence offence.

59. As to the burglary offence, a stern sentence is warranted to give effect to the applicable sentencing purposes, however, the strongly mitigating factors that arise are such that I am satisfied it is appropriate that the sentence be served by way of an ICO. This order will, as Mr Walker’s grandmother considered, provide an “added impetus to keep [him] to the program” of rehabilitation.

Orders

60. For those reasons the following orders are made: (1) On the charge of aggravated assault occasioning actual bodily harm (CAN 2024/12028), the offender is convicted and sentenced to 6 months imprisonment, reduced from 8 months on account of the plea of guilty, to commence on 10 September 2024 and end on 9 March 2025. (2) In relation to CAN 2023/9370 (common assault), the breach of good behaviour order is proved, the good behaviour order made 1 May 2024 is cancelled, and the offender is resentenced to the rising of the Court. (3) In relation to CAN 2024/3663 (destroy/damage property not exceeding $5000.00), the breach of good behaviour order is proved, the good behaviour order made 1 May 2024 is cancelled, and the offender is resentenced to the rising of the Court. (4) On the charge of burglary (SCCAN 2024/136), the offender is convicted and sentenced to 14 months imprisonment, reduced from 18 months on account of the plea of guilty, to commence on 2 April 2025 and end on 1 June 2026, to be served by way of intensive correction order with the core conditions contained in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT) imposed. (5) The following additional conditions are imposed: (a) that the offender attend educational, vocational, psychological, psychiatric or other programs or counselling as directed; (b) that the offender reside as directed by ACT Corrective Services; and (c) that the offender comply with a curfew as specified by ACT Corrective Services, for such time as directed.

I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen Associate: Date: 7 April 2025