District Court New South Wales Medium Neutral Citation: R v Walton [2018] NSWDC 259 Hearing dates: 2 December 2016; 7 July 2017; 13 December 2017; 16 February 2018 Date of orders: 16 February 2018 Decision date: 16 February 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment for a period of 12 months suspended under s12 Crimes (Sentencing Procedure) Act Catchwords: CRIMINAL LAW – Sentence – Following s11 remand – Aggravated break and enter and commit serious indictable offence – In company – Stealing – Offender suffers from a mental illness – Offender had a fractured uprbinging Category: Sentence Parties: The Crown Daniel Henry WALTON Representation: Counsel: Mr D Jarrett – The offender Solicitors: Director of Public Prosecutions – The Crown Russo & Partners Pty Ltd – The offender File Number(s): 2015/44640 Judgment 1. HIS HONOUR: When Mr Walton originally appeared before me I put him on a s 11 bond. I explained the reasons that I did this on 2 December 2016. Mr Walton has appeared before me on a number of occasions since then. It is fair to say that he has not done what I had hoped he would do in many respects, in particular he continues, it would appear, to use drugs. On the other hand he has not committed any further offences. 2. Mr Walton had a number of serious challenges in his life. His upbringing was difficult and fractured. His mother died and he believes that his father killed her. His father had few parenting skills and his grandparents, who cared for him initially after his mother's death, also died. His father has now died. Mr Walton suffers from a mental illness, it is therefore inappropriate to impose a sentence reflecting a large component of general deterrence upon him. 3. Ultimately I have to sentence him for an offence of aggravated break and enter and commit serious indictable offence in company. Mr Walton, together with another man (although he was acquitted of this offence after facing trial by a jury), broke into a garage attached to residential premises and stole some tools. They were detected doing so and the property was all recovered. There was no damage to the garage door, there was no loss to the victims of the burglary. 4. The circumstance of aggravation of this offence was that he was in company. There are many other more serious circumstances of aggravation. The serious indictable offence he committed was stealing and once again there are many more serious indictable offences. This carries a maximum penalty of 20 years imprisonment with a standard non‑parole period of five years. The objective gravity of this offence is far below the middle of the range of offences which might result in the standard non‑parole period being imposed. 5. I have taken into account both the maximum penalty and the standard non‑parole period in determining the sentence to impose upon Mr Walton, my reasons for not imposing the standard non‑parole period appear in these remarks on sentence. 6. Mr Walton pleaded guilty. It was a late plea. I will not quantify the discount in this case, the plea being one of a number of factors which have led to me imposing a different form of sentence from that I would otherwise have imposed. 7. Mr Walton has done time in custody on this matter, three months and 10 days in fact. The question becomes do I need to send him back to gaol to serve a further period of imprisonment. It is here that I turn to what Mr Walton has achieved over the period of the s 11 remand. Mr Walton has far from done everything that I requested of him but he faces a number of challenges in completely doing what I wanted him to do. He has however of more recent times begun to seek assistance from those who are most able to give it. 8. He has spent some time at the St John of God Hospital in Burwood. He was there for three weeks. He told the author of the updated presentence report this was a positive experience and he plans to engage in outpatient services. The author of the presentence report did not just take Mr Walton's word for it too, she contacted the hospital and received favourable reports. He has also engaged in further drug intervention with Odyssey House in a non‑residential treatment program. He has been to one appointment with them and told the author of the presentence report that he intends to continue with this program. It would appear that Mr Walton has been very co‑operative with the Community Corrections authorities and is making a genuine effort to access treatment for both his mental health and drug abuse issues. I am satisfied, especially given the circumstance that the offender has done three months and 10 days in custody, that it is not necessary to impose a further period of actual imprisonment upon him. 9. That is not to say however that a custodial sentence is not required. Mr Jarrett submitted that I would impose a suspended sentence of imprisonment and the Crown did not oppose that. Accordingly I sentence Mr Walton as follows. Would you stand up please Mr Walton. 10. Mr Walton is sentenced to imprisonment for a period of 12 months. I suspend the execution of that sentence on condition that Mr Walton enter into a bond to be of good behaviour for the period of that sentence. The conditions of the bond are that he is to commit no further crimes, he is to be supervised by the Probation and Parole Service, I note that it appears that Mr Walton is engaging well with Nicole Colbert and so I recommend that, if possible, she be the person who supervises him. Mr Walton is to do what Community Corrections require of him including, if necessary, entering into a long-term residential dual diagnosis rehabilitation facility. Mr Walton is to continue to access drug intervention programs as recommended by the Community Corrections officer. 11. Now Mr Walton you're not out of the woods yet, you know that expression. 12. You have to not commit any offences and do what Community Corrections require of you for the period of the sentence. If you don't do that, you come back before me, someone who is familiar with your case, someone who I think has been a bit generous today and if you don't do what's required of you, then what happens is that you come back before me, not any other judge, and there is a real risk that you'll end up going back to gaol. Now you have been doing well and that's what's kept you out of gaol today but if you go backwards you might still go there, so keep up the good work and you'll stay out of gaol and in fact you'll have a happier life I think. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2018