R v Walters [2014] ACTSC 225

See [16] to [18] and [21] below

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - offender to be sentenced for unlawful confinement, assault occasioning actual bodily harm and unlawfully using an offensive weapon likely to cause grievous bodily harm - sentence deferred in August 2013 to allow offender to pursue drug rehabilitation - offender successfully completed residential rehabilitation - continues to accept support from Canberra Recovery Service - has accommodation and full-time work - offender sentenced to four years and six months imprisonment, backdated by 20 months for pre-sentence custody and time in residential rehabilitation and the remainder suspended subject to three-year good behaviour order and community service obligation.

Crimes (Sentencing) Act 2005 (ACT)

Crimes (Sentence Administration) Act 2005

1. When Brian Walters came before me in August 2013 for sentence on pleas of guilty, I recorded convictions on charges of:

(a) unlawful confinement;

(b) assault occasioning actual bodily harm and intentionally; and

(c) unlawfully using an offensive weapon likely to cause grievous bodily harm.

2. Those offences carry maximum penalties respectively of 10, five and five years imprisonment.

3. I also noted scheduled offences of serious driving and driving unlicensed that were to be taken into account in sentencing for the use offensive weapon offence.

4. The details of those offences were set out in my original sentencing remarks, an extract from which will be attached to the published version of these remarks. I see no need to repeat that material here, except to say that the offences were committed during two separate and unrelated sequences of events in April 2012 and July 2012; on the first occasion, Mr Walters was affected by alcohol and cannabis, and during the second series of events, by alcohol and illicit substances including Ice.

5. Mr Walters had had a difficult childhood in many respects, including sexual abuse between the ages of 10 and 12 by a neighbour, who also introduced him to alcohol and drugs. He had turned to serious substance abuse around the age of 16. He had lived with his mother, who was a sole parent, but over time his behaviour had deteriorated to the point that she had obtained a protection order against him.

6. By the time Mr Walters came before me for sentence, he had spent just over eight months in custody and had been bailed to a drug rehabilitation program run by the Canberra Recovery Service (CRS), specifically by the Salvation Army. He was making good progress in residential rehabilitation, and I decided to defer his sentence to give him time to address the factors (principally drug and alcohol abuse) that appeared to be largely to blame for his offending.

7. Last year I noted that Mr Walters' guilty pleas would be accepted as early pleas.

8. Since last August, Mr Walters has appeared before me twice for "check-ups". On each occasion there have been reports from Salvation Army officers who conduct the CRS program about his remarkable progress in rehabilitating himself. By December 2013, Mr Walters had moved to a CRS half-way house, but continued to attend an after-care program. Early this year, he moved back in with his mother, who needed help after a double knee reconstruction. He has taken part in various other programs including a Positive Lifestyle Program. He has accepted counselling and other help for his drug addiction.

9. Before me today are letters from Major Scott Warrington of the Salvation Army, from outreach worker Tim Frost, and from Mr Walters' current case worker. Major Warrington said that Mr Walters continues to show commitment to his recovery, continues to accept support in maintaining abstinence from drugs and "has really stood out as being an incredible success and has achieved a great deal more than was expected".

10. Major Warrington also noted that Mr Walters has been giving back to CRS by helping CRS with some of its programs for other residents. Mr Walters' case worker reports that Mr Walters moved back to the half-way house for a few weeks ending in early July, but has now moved into his own accommodation and also has full-time employment, which I understand to be at a coffee shop.

11. Mr Walters' mother provided a letter which said:

I would like to share with you the remarkable change I have seen in my son Brian over the last year. His whole attitude and way of life has done a complete 360-degree turnaround.

He is calm and polite and willing to share his emotions and thoughts with me.

His temper and arrogant attitude has completely disappeared, and in its place is a lovely soft and very generous young man.

I believe Brian has now proven he can join society and be of use to society in a really positive way.

He has his own unit now and takes pride in keeping it clean and well presented and is even proving to be a little house proud.

I am very proud of how he has handled all his situations and turned them into a positive.

I have been very unwell for the last 6 months and Brian has been there to cook and clean and even helped me shower which in the old days would never have happened. I would have been left to starve literally.

12. When I deferred Mr Walters' sentencing, I indicated to him the sentences he was likely to receive if he complied with the bail conditions I would set, and what he would receive if he did not comply. In general terms, non-compliance was to see him sentenced to five years imprisonment, backdated to take account of pre-sentence custody, and possibly some time in rehabilitation, but with at least another 18 months in prison. If he did comply, he could expect the same sentence of five years with more backdating (to take account of up to 12 months in residential rehabilitation) and then some further time in periodic detention with the rest suspended. Major Warrington, Mr Frost and Mr Walters' mother have all urged me not to require Mr Walters to serve periodic detention at this stage, but instead to require some community service in the next stage of his sentence. The prosecutor agrees, both that Mr Walters has made excellent progress, and that periodic detention runs the risk of bringing him back into contact with drugs and drug users and is for that reason desirably avoided.

13. Having regard to Mr Walters' remarkable progress in rehabilitating himself, and to the contribution he has begun making back to the Canberra Recovery Service, I have come to the conclusion that it is neither necessary nor desirable to send Mr Walters back into any kind of custodial environment at this stage. Nor do I see myself as bound, by s 118 of the Crimes (Sentencing) Act 2005 (ACT), to implement exactly the sentencing proposal indicated in general terms (as required by the legislation) as the sentence Mr Walters might receive if he complied with the conditions of his deferred sentence order.

14. Mr Walters, please stand. I note the convictions on the charges of:

(a) unlawful confinement;

(b) assault occasioning actual bodily harm; and

(c) intentionally and unlawfully using an offensive weapon likely to cause grievous bodily harm.

15. I also note the scheduled offences of furious driving and driving unlicensed, and I have taken them into account in sentencing for the use offensive weapon offence.

16. I now sentence you to imprisonment as follows:

(a) for unlawful confinement - three years reduced from four years for your plea of guilty;

(b) for assault occasioning actual bodily harm - 22 months reduced from 30 months, and

(c) for using an offensive weapon likely to cause grievous bodily harm - 22 months reduced from 30 months.

17. Although I originally indicated the total sentence of five years, I propose to accumulate those sentences to a total of four and a half years; the unlawful confinement and assault offences will run concurrently, and will both start running 18 months after the offensive weapon sentence. That total sentence of four and a half years will be backdated 20 months (to 26 December 2012) to take account of time in custody and time in residential rehabilitation, and will be suspended with immediate effect, leaving 34 months that will be able to be served out by compliance with a good behaviour order for three years.

18. I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for three years, with security in the amount of $1,000. You don't actually have to provide the $1,000, you just have to undertake to pay it if you don't comply. The good behaviour order is subject to these conditions:

(a) that for such period not exceeding three years as Corrective Services requires, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General, or delegate;

(b) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer; and

(c) that in the next 18 months, you complete 200 hours of community service.

19. In relation to that community service, both Major Warrington and the prosecutor have said that it could be performed for the Salvation Army and I recommend that such an approach is taken by Corrective Services, especially having regard to the need to ensure that your ability to maintain employment is not compromised by your community service obligations.

20. I note in this context that the 2013 Pre-Sentence Report assessed you as unsuitable for community service "due to the impracticality of regular reporting due to his involvement in a residential rehabilitation program"; given that you have now finished your residential rehabilitation program, it seems that there should be no particular obstacle to you doing community service work.

21. I also order you to attend Corrective Services Probation and Parole, which I understand is at Eclipse House still, within two days, so either today when you leave here, or tomorrow, to arrange that supervision.

22. You will be given a written copy of the good behaviour order and it will be explained to you by the court officials. In short, Mr Walters, it means that for the next three years, you need to keep out of trouble, keep in contact with Corrective Services to the extent that they require, and do as they direct you. If you commit another offence during that time, or breach your good behaviour order by for instance, failing to do your community service, you may find yourself back before this court to be re-sentenced for these offences, as well as possibly losing your $1,000. I should warn you right now, Mr Walters, that if you commit another offence of violence, you can be fairly sure that you will be serving some more of this sentence in full-time custody.

23. If you have any particular questions about those orders, please ask the court officials or Mr Hopkins.

24. Mr Walters, I have just given you a fairly stern warning about how you need to behave in the next three years, but I should also, in a different vein, congratulate you on the really remarkable turnaround that you seem to have achieved in the last 18 months or so. I am very impressed with what you've managed, and I really hope you can maintain and build on your achievements, and that we will not see you back before the courts again.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.

Extract of original sentencing remarks (29 August 2013)

1. The charges arose from two separate incidents. In the first, committed in April 2012, Mr Walters, after several hours of drinking alcohol and smoking cannabis, was driving along Knox Street in Watson where he saw the complainant, whom he knew, riding his bicycle. Mr Walters approached the bike from behind, leaned out the car window, and hit the complainant in the back of his head with a speaker from a home theatre system that he had been transporting for a friend. Mr Walters accelerated, did a U-turn and drove past the complainant, then did a handbrake turn, spinning his car around, and headed back towards the complainant. This was the furious driving offence. The complainant was standing in the driveway. Mr Walters turned into the driveway, and stopped his car just short of the complainant, then accelerated heavily, hitting the complainant with the front bumper bar and knocking him to the ground. When the complainant stood up, Mr Walters reversed and drove away. When police spoke to Mr Walters shortly afterwards, it emerged that he did not have a driver's licence.

2. The other offences were committed in July 2012. The complainant in relation to these offences, not the same person threatened by Mr Walters' driving in April, owed a drug debt to Mr Walters' co-accused, for whom he had been dealing drugs. Late one afternoon, Mr Walters phoned the complainant, who was staying with a friend not far from Mr Walters' home in Hackett, and asked him for help with a tattoo stencil. Mr Walters picked up the complainant in his mother's car but took him to the coaccused's house in Watson. After a discussion between Mr Walters and the co-accused, in the complainant's presence, they agreed to tie the complainant up and leave him in the bush somewhere. The coaccused gave the complainant an extra jumper and then Mr Walters drove them to a car park at the base of Mount Majura. The two offenders walked the complainant about one-third of the way up the mountain, and then told him to get into a ditch. In the ditch the complainant was hog-tied with phone-charger cables and his mouth was taped up. Mr Walters then placed a log over the complainant to hide him from view. Before Mr Walters and the co-accused left, the co-accused untaped the complainant's mouth. The complainant managed to free himself after 20 minutes of struggling. He ran back down the mountain and returned to where he was staying. Mr Walters arrived at the unit shortly afterwards and said to the complainant "Oh, you've made it. You're free." He then had a beer with the complainant and his friends.

3. Three days later. Mr Walters and the coaccused forced their way into the unit where the complainant was staying. The co-accused began to slap, punch and elbow the complainant in the face and head. Mr Walters took over the assault on the complainant after the co-accused turned his attention to another occupant of the unit. After the co-accused had pierced the complainant's earlobe with a heated piece of metal, he and Mr Walters began punching and elbowing the complainant, mainly hitting him in the head. Mr Walters hit the complainant so hard that he injured his own hand, and said he would now beat the complainant harder. Mr Walters then obtained a spear gun, and guarded the complainant for some hours through the night after the co-accused left. At one point he made an icepack for the complainant and the complainant took it and went to bed. The next morning, the complainant left the unit, telling Mr Walters he had a Centrelink appointment.

4. The complainant made his way to the City Police Station. He was taken to Canberra Hospital Emergency Department and the examining doctor reported numerous abrasions, lacerations and bruises to his head, bruises to his jaw, mouth, hand, arms and legs, and a sub-conjunctival haemorrhage to his right eye, as well as the wound to his ear lobe. The doctor stated that:

There were at least 27 individually identifiable injuries on [the complainant]. These injuries were of a variety of types of injury, across a variety of anatomical planes which indicate multiple applications of force.

[The complainant] had a number of injuries to his head; these have the potential to be very serious and potentially life threatening.

5. Mr Walters was arrested the next day, 13 July 2012, and charged in connection with the forcible confinement and assault offences. He was remanded in custody, and released on bail eight months and one week later, on 20 February this year. On 13 March 2013 he was charged with the use offensive weapon offence and the two driving offences.

6. Mr Walters was committed to the Supreme Court for trial on an indictment including three charges against him arising out of the second incident. On 31 May 2013 he pleaded guilty to the forcible confinement and assault offences, and those pleas were accepted in full satisfaction of the indictment. He pleaded guilty to the use offensive weapon offence in the Magistrates Court on 14 May 2013 and was committed to this court for sentence.

7. I shall treat all these pleas as early pleas entitling Mr Walters to a sentencing discount.

8. All these offences were objectively serious, especially having regard to the potential for each of them to have far graver consequences than they ultimately did.

9. The detailed statement of facts, together with the fact that the drug debt appears to have been owed to the co-accused rather than Mr Walters, suggest that Mr Walters was not the driving force behind the second set of offences, but it seems that he participated willingly and at times enthusiastically.

10. Mr Walters was born in Canberra. He was rejected by his father, and raised solely by his mother, with whom he has lived for all his life except for a brief period when he was 17. He had a difficult childhood, requiring surgery on 16 different occasions to correct his club feet.

11. Mr Walters lost a friend to suicide when he was eight, and was sexually abused between the ages of 10 and 12 by a neighbour who also introduced him to alcohol and drugs. Mr Walters' mother gave evidence that Mr Walters was one of several children abused, but was the only one considered sufficiently reliable by the authorities to call as a witness in proceedings against the abuser. Mr Walters, by then aged 16, was commended in court for his bravery, but the evidence he was able to give about details such as dates was ultimately assessed as insufficient to justify the matter proceeding to trial.

12. Ms Walters told the Pre-Sentence Report author that the failure of these legal proceedings was a turning point for Mr Walters, and that from then "his behaviour just got intolerable". His existing drug and alcohol abuse increased, involving among other things cannabis, ecstasy, hallucinogens, benzodiazepines and opiates (mainly as Endone and Tramadol), and daily use of alcohol to "black-out". Some months before his arrest, Mr Walters had begun smoking amphetamines (Ice) most days. Ms Walters reported that although she was not aware of the use of Ice at the time, she noticed that around this time Mr Walters' behaviour became discernibly more violent. Eventually, she had taken out a restraining order and made him leave her house.

13. Mr Walters completed Year 10, and began a chef's apprenticeship which he did not complete. He had worked sporadically in landscaping and cooking jobs, regularly losing jobs because of his substance abuse, and in the year before he was arrested had helped out in his mother's shop. Mr Walters conceded that he would certainly have been sacked from that job too except for his mother's involvement.

14. Mr Walters, who is now 30, has a significant criminal history, although until he was charged with the current offences it consisted of relatively minor traffic offences and one drug possession offence. He was dealt with early this year for offences involving possession of cannabis and possession of a knife, apparently committed the day before the second set of offences with which I am dealing.

15. Mr Walters says that he can recall little, if any, of the current offences due to his level of intoxication as a result of high use of alcohol and various drugs including Ice.

16. Mr Walters has expressed remorse in relation to both sets of offences, concern about their impact on the two victims, and recognition that he needs to make amends, while noting, however, that if he were the victim he would not be interested in an apology from the perpetrator. He has also expressed remorse about how badly he has treated his mother and how much pain this has caused her.

17. Both Mr Walters and his mother reported in their evidence that since he had been in prison they have made good progress repairing their relationship. Ms Walters' early visits to her son in prison were very uncomfortable and often involved no communication except arguments, but gradually things changed and now that his progress in rehabilitation means that Mr Walters is able to spend every second weekend with his mother, they both report these weekends as peaceful times in which they do normal happy things together. In court, Ms Walters described Mr Walters' dramatically different attitude these days to minor frustrations which would once have caused violent responses.

18. In February this year, Mr Walters was granted bail. Having been a well-behaved prisoner, he has also been polite and co-operative with the Pre-Sentence Report author since being bailed.

19. Bail was granted so that Mr Walters could attend Canberra Recovery Services, a residential rehabilitation program where he is addressing his alcohol and drug problems.

20. In June, having completed Level 1 of the CRS program, Mr Walters entered Level 2, and expects to complete that around the end of this year. The CRS manager said in a letter to the court:

Brian has had an open and positive attitude to programs despite multiple legal issues. He has been punctual in attending program activities. He is now in Level 2 of the program and he has been a mentor to other participants showing his responsibility and progress in the program. Brian participates well in group and is honest in sharing his experiences and the things he has done whilst in addiction. This indicates his readiness to change. He has been involved in community events such as the Red Shield appeal and a walk to support the drug actions week. Brian has demonstrated that he can handle conflict in a healthy way and this is evidenced when he was involved in a mediation process between him and other participants of the program.

We would envisage Mr Walters will remain engaged [with] CRS in a residential capacity for another 6 months. When Mr Walters completes our program we would recommend that he continue involvement in the 12-Step fellowship, as this will provide ongoing opportunity for continued growth and development, a supportive social network, as well as a structure in which accountability towards self and others is a focus. Mr Brian Walters will also benefit from our 'after care' support and/or group work directed towards specific issues relevant to his personal case plan. These will become more apparent as he progresses in our program should the court see fit to allow him to proceed.

21. As mentioned, since entering the CRS program, Mr Walters has taken part in Salvation Army charity work, including for the second-hand shop, and has also attended Alcoholics Anonymous and Narcotics Anonymous meetings, some required by his program and others on his own initiative. Recently, after another CRS resident pulled out, Mr Walters found himself speaking about his experiences to an audience of up to 100 students at Canberra Grammar.

22. As noted, these are all very serious offences. General deterrence must be important, although where such offences are committed by seriously intoxicated people the deterrent effect of sentences imposed on others must be questionable. While Mr Walters seems to have made good progress with his rehabilitation so far, personal deterrence will remain relevant for some time.