Director of Public Prosecutions v Allan
[2015] VCC 1083
•7 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
(AT MORWELL)
Case No. CR-15-00631
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COLIN ALLAN |
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JUDGE: | JUDGE HOWARD | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 30 July 2105 | |
DATE OF SENTENCE: | 7 August 2015 | |
CASE MAY BE CITED AS: | DPP v Allan | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1083 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - Sentence – pleas of guilty to aggravated burglary, theft and criminal damage – offender engaged in joint criminal enterprise with two others but remained in car outside premises whilst offending occurred – serious example of a home invasion – application of the Doran principle - total effective sentence 3 years’ imprisonment with minimum of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D O’Doherty | Solicitor for Office Public Prosecutions |
| For the Offender | Mr B Cranswick (plea) Mr D Ewart (sentence) | Tyler Tipping & Woods |
HIS HONOUR:
1 Colin Allan, you have pleaded guilty to aggravated burglary, for which the maximum penalty is 25 years' imprisonment (charge 1); to two charges of theft (charges 2 and 3) and one of criminal damage (charge 4), the maximum being 10 years’ imprisonment on each; and to a summary offence of failing to appear on bail, for which the maximum is 12 months' imprisonment.
Circumstances of offending
2 The circumstances of offending are set out in an agreed prosecution opening, which was read out in Court, the accuracy of which was agreed to by you.
3 A summary will suffice. On 16 October 2014 at about 3.00am, you went to a house in Blair Athol Drive, Traralgon with Brandon Langstaff, 18, and a third man, nominated by the prosecution as Christopher Stokes, 27.[1] In a joint criminal enterprise you agreed to break into the premises and steal money and drugs from the occupants, who were known to your group. Inside the house were the permanent occupiers, Matthew Airey and Ashley Dambergs, and a third man staying over, Nicholas Westwood.
[1]The prosecutor indicated that Stokes had not been charged due to the absence of admissible evidence.
4 Your group arrived in a vehicle. You remained in the car outside while your co-offenders went to the front door, screaming out for drugs and money and yelling out the names of Airey and Westwood. They banged on the front door demanding entry. Airey opened the door and saw Langstaff was holding a hockey stick while the other man had a metal pole. Airey did not recognise either of them and threatened to call the police. Westwood woke up and immediately ran out of the house. As he was fleeing, he saw a male sitting in the driver’s seat of the vehicle outside. That person was obviously you, but he did not purport to identify you in any way. He later told police that it was a green Hyundai Excel but he did not give a registration number or any other details. Westwood then ran to a friend living nearby and called police.
5 Returning to the events at the house, Airey tried to shut the front door but Langstaff and the other man bashed it so severely that Airey saw the weapons actually coming through the door. I received graphic photos that show the door was so severely damaged an adult would have no difficulty stepping through it when closed. The damage was worth approximately $600 (charge 4). By this method, the two offenders gained entry (charge 1). The shouted for Westwood’s money. Airey replied he had never met them before and didn’t know what they were talking about. He then ran to his bedroom to call police. He leaned against his doorway to prevent entry. However, they bashed the door with their weapons and forced their way in. They confronted Airey and pointed their weapons at his face, threatening to use them and told him to put down his phone. They demanded to know where the drugs and money were kept. Langstaff took Airey’s iPhone and angrily demanded his wallet. He gave over an empty one but the offenders found his real wallet in a drawer and stole that along with his car and house keys. The wallet contained bank and credit cards and other personal papers (charge 2).
6 Then the offenders went to the bedroom of the other occupier, Dambergs, and Langstaff woke him up by banging his weapon on his bed and calling out his name. Dambergs recognised Langstaff, whom he had known for about 12 months. Langstaff stole Dambergs’ iPhone (charge 3).
7 The two men then went to the kitchen where they stole a laptop computer belonging to Airey (part of charge 2). As they were leaving they shouted “If we don’t find Nick [Westwood] we will be back for you.” By the time the police arrived, you and your co-offenders had departed the scene in the vehicle.
8 Airey’s stolen credit card was later illegally used to the value of $174 but I do not take this into account against you as you were not charged over this activity.
9 Langstaff was arrested by police the following day in a room at a Traralgon motel or hotel. Stokes was found by police hanging about outside when he came to visit Langstaff. In Langstaff’s room, police found deal bags containing methylamphetamine (ice), three mobile phones, and your wallet containing WorkSafe and Medicare cards and bank documents in your name. None of the property stolen from the premises was found by police.
10 Langstaff was arrested, charged and, notwithstanding his age, held in an adult prison. Whilst in prison he had a number of recorded conversations with others, including you and Stokes. I will return to this topic shortly.
11 Langstaff ultimately pleaded guilty in this Court to charges of aggravated burglary, criminal damage and theft arising from the offending I have described, as well as to a charge of handling stolen goods and possessing a drug of dependence. On 30 January 2015, after 106 days in an adult prison, he was sentenced by Judge Smallwood to 18 months in a youth justice centre. He had prior convictions but had never been incarcerated previously. He had been an ice user for about 12 months up to the time of offending. The sentencing judge’s view was that he had engaged in a serious example of aggravated burglary which objectively demanded a significant period of custody.
Police and court process
12 About a month later, on 14 November 2014, you were arrested and interviewed by police. You denied any involvement in the offending, claiming you knew nothing about it and that you would have been in bed, either at your sister’s or a friend’s place. Apparently, this alibi was not disproved by police. You did concede you knew both Langstaff and Stokes. You explained your property was found on Langstaff because you had given it to him to look after as you were intending to meet up later on 17 October at the motel/hotel. You denied speaking to Langstaff while he was in prison; particularly that he had spoken to you from prison on your sister’s phone on 29 October 2014.
13 You were bailed the following day, 15 November, but failed to appear on bail at a filing hearing on 21 November (summary offence). As a result, a warrant was issued for your arrest, which was executed on 24 December 2014, and since then you have been held in custody. There is, accordingly, 228 days’ pre-sentence detention up to, but not including, today.
14 On 16 April 2015 you pleaded guilty at committal, which was the earliest time.
Victim impact
15 Not surprisingly, there was significant victim impact as a result of the attack upon the occupants of the premises. Mr Airey was shocked, traumatised and overwhelmed by the incident. He genuinely feared for his life at the time. In a victim impact statement declared on 29 January 2015, he made clear that he had suffered significant emotional harm and anxiety, with sleep problems, hyper-vigilance and concern his house will be broken into again. His work performance has suffered. His financial loss was about $1200, not including the credit card offence.
16 Mr Dambergs genuinely feared being attacked when Langstaff was standing over him in his bedroom with the weapon. No victim impact statement has been received from him, nor from Westwood, but no doubt both those men were traumatised and terrified by the conduct of the two intruders.
17 You should feel a great deal of shame and remorse for what happened to those three young men.
Background and personal circumstances
18 I shall turn now to your background and personal circumstances, adopted from the psychological report of Dr A Cunningham dated 5 June 2015 and counsel.
19 You are now 25, and were 24 at the time of offending. You were born in Scotland, but your family relocated to Australia when you were very young, and with an older sister, you were raised in Traralgon. Unfortunately your parents separated when you were four, and you remained with your mother, although you visited your father regularly. You now have a good relationship with your parents. Your mother repartnered but you had problems with your stepfather so you then lived with your father, feeling betrayed by your mother.
20 You left school after Year 10 and worked for two years with an importing company, and then for two and a half years making meat trays in Warragul. You have not worked for a number of years. You left home at 18 and travelled, then lived with your sister on returning to Victoria.
21 You have an extensive history of using illicit drugs - cannabis regularly from 16, then an 8-9 month daily ice habit since June last year. However, you told the psychologist you had ceased use of methylamphetamine at the time of your offending, which was said to have occurred due to your association with drug-abusing peers. You were living with Stokes and two friends prior to your arrest.
22 You were diagnosed as suffering from a persistent depressive disorder, exacerbated by the death of your grandmother in April last year, over which you suffered significant grief and loss. Psychological testing indicated cognitive functioning in the average range. A Verdins claim was specifically disavowed.
23 Shortly before your incarceration, you established a relationship with a lady who supported you whilst you were in custody but that relationship is now over. Whilst in custody, you have taken a number of steps to promote your rehabilitation. This is all the more commendable, given that you have been held in protective custody since February 2015, which was not fully explained but it had something to do with possible threats made by Langstaff or his associates. Since early July you have been held in “lockdown” at the MRC resulting from the prisoner riots, and only permitted out of your cell for one hour per day. Despite these difficult circumstances, you have completed four programs for managing emotions, anxiety, loss and drug addiction, for which you obtained certificates. You also returned negative urine screens on 20 May and 6 June, which support your claim that you are now drug-free. I hope that is so.
24 The psychologist said you presented with protective factors that may reduce your risk of reoffending and improve your prospects for rehabilitation. These were that you had ceased illicit drug use; you presented with a supportive family, including your sister and mother who were in court; and you have stable accommodation and employment open to you, working either at your mother’s service station or on a property where she lives. You have ceased your former negative peer associations and shown insight into your previous drug abuse. It was recommended that you would benefit from engaging with psychological intervention to treat your depressive disorder.
25 On the other hand, you have a disturbing criminal history for one so young. Over a period of eight years, from 2006 when you were fifteen to July 2014, when you were twenty-four, you have sustained no less than 61 convictions or findings of guilt from eight court appearances in the Children’s Court and Magistrates’ Court at Latrobe Valley. Many of these were for driving matters, but significantly there are 17 dishonesty offences including three for burglary; for cannabis use, possession and cultivation; recklessly causing injury in 2012; possessing a controlled weapon in 2014; and four offences of failing to answer bail on four separate appearances. I note you have no convictions for aggravated burglary. You were first sentenced to imprisonment in 2010, which sentence was wholly suspended and you first served a term of imprisonment in November 2012, when for a series of mixed offences including burglary, you were sentenced to an aggregate 16 months' imprisonment with a minimum of nine months. You were released in early June 2014. The next month, on 10 July 2014, you were convicted of possessing cannabis, possessing a controlled weapon and dangerous article and driving matters, for which you were placed on a community correction order for 18 months, to expire on 9 January 2016, with 150 hours’ community work, supervision, assessment and treatment for drugs and alcohol, mental health and an offender behaviour program.
26 Hence, you committed these offences but three months after you were placed on that community correction order. You have been breached for that order and a hearing is fixed for 11 August next. The breach is admitted and the breach report was provided by your counsel. It indicates you failed to attend on a number of occasions for community work, supervision and treatment. You failed to complete any community work. You also breached by unlicensed driving, to which you intend to plead guilty. Of course, you have also breached the order by this offending. The report recommends that the order be cancelled and that you be resentenced on your original charges. Significantly, you are deemed unacceptable for a further community correction order.
Mitigating circumstances
27 There are a number of mitigating circumstances. You are the product of a difficult and dislocated childhood and family background. Nevertheless, you now have significant family support. Having left school, you worked productively for a number of years but ultimately succumbed to a significant and debilitating illicit drug habit which escalated into significant ice use.
28 You are still a relatively young man and can make something of your life, notwithstanding your past problems. Whilst in difficult custodial circumstances, you have promoted your rehabilitation by doing courses and avoiding drugs.
29 I accept your counsel’s submission that, notwithstanding your equal legal culpability, you should be treated as playing a lesser a role in the offending because you remained in the car and did not actually break into the premises, terrorise the occupants and steal their property. I do not accept your counsel’s submission that for this reason you have lesser moral culpability. It was acknowledged that this was not a case of an offender with mental health issues or an intellectual disability and it was not said that your depression was causally linked to the offending in any way. No Verdins claim was made. Because you denied the offending, there is no evidence before me as to your state of mind at the time of offending. There is a conflict in the material as to whether you were or were not taking ice when offending. There is no evidence of you benefiting from the crime.
30 I could not find beyond a reasonable doubt that you were the instigator or motivator of the offending, and while I am satisfied that the other two offenders had a particular grievance, it would seem particularly against Westwood, there is no evidence that you had any grievance. For those reasons, your case is to be distinguished from Hogarth’s case, much discussed at the hearing.[2]
[2]Hogarth v R (2012) 37 VR 658; [2012] VSCA 302. I note that the offender in Hogarth, who was the instigator of the offending and held a particular grievance against the occupants of the house, remained in the car parked outside the premises whilst his two co-offenders committed the offences.
31 Another mitigating circumstance is that you have pleaded guilty to this offending at the earliest time, which is of utilitarian benefit and has advanced the interests of justice. Your counsel said that you offered to plead guilty in February 2015. For that alone, there ought to be a significant discount in penalty. I am also satisfied that your pleas are associated with genuine remorse for your conduct.
32 Your counsel suggested that you had offered to assist authorities earlier this year but there was no evidence of this and that is not a mitigating factor.
33 There is one other matter in mitigation which was not mentioned by either counsel at plea hearing but I consider it is very much in your favour, namely, that there should be a demonstrable discount under the Doran principle.[3] That principle makes clear, as a matter of public policy, the desirability of the criminal law encouraging a guilty person to come forward and disclose both the fact of an offence having been committed and to make a confession of guilt of that offence. When I raised it with the parties in correspondence after the hearing, they agreed there should be such a discount. Having heard the agreed prosecution opening, I assumed there was evidence in the depositions identifying you as one of the three offenders, or that the vehicle you were in was linked to you. I reviewed the depositional material after the plea hearing but there was no such evidence. Nor was there any evidence of your being in possession of, or benefitting from, the proceeds of the crime.
[3]Doran v The Queen [2005] VSCA 271. The principle was recently discussed and endorsed in Latina v The Queen [2015] VSCA 102 and Dawson & Anor v The Queen [2015] VSCA 166, particularly at [53].
34 There was limited circumstantial evidence of your association with the other two men, including your personal papers being found in Langstaff’s room and phone contact between the two of you on 16 October, the day he was arrested. The only other evidence that was relied upon by the prosecution was evidence of a recorded conversation which, I am satisfied beyond a reasonable doubt, you had with Langstaff when he spoke to you from the prison on 29 October 2014 on your sister’s mobile phone.[4] In your police interview you denied having that call, but among other matters, you refer to your own property being found in his motel/hotel room, which was the case, and this clearly identifies you as the person speaking with Langstaff. There is a good deal of material in the call which the prosecution might have relied upon as post-offence incriminating conduct. It is unnecessary for me to detail it now in light of the position adopted by the parties as to this issue. But the probative value of this evidence at trial depended on the drawing of adverse inferences against you. It may not have been so easy for the Crown to achieve that result.
[4]The prosecution disavowed the admissibility of a statement made by Langstaff in an intercepted prison telephone call to another person that his co-offenders were this offender and Stokes.
35 In my opinion, a weak case was mounted against you so your pleas and the admissions you made by agreeing the prosecution opening provided significant evidence against you in proof of the offending. In those circumstances, the Doran principle merits a demonstrable sentencing discount.
36 Notwithstanding these mitigating circumstances and your recent gains, I must remain guarded as to your prospects of rehabilitation, particularly given your criminal history; the fact that you were on the community correction order at the time of offending; and that you have a history of twice previously breaching a community-based order.
Other sentencing considerations
37 There are, of course, other important sentencing considerations. The first is the maximum sentences for the offences, particularly 25 years' imprisonment for aggravated burglary. That is a serious charge and these are serious circumstances, involving as they do the joint aggravating features of the offence, entry as a trespasser with an offensive weapon and knowing or being reckless as to a person being present. The home invasion was planned, shocking and traumatic; the victims were terrorised in their home in the early hours by aggressive armed men demanding money and drugs; and significant damage was caused. The joint criminal enterprise, of which you were a part, entailed this type of conduct. You are equally liable for this criminality even though you did not go inside the premises. I accept the prosecution submission that you were part of a team of three offenders acting as the driver in a get-away car, whilst the other two were the enforcers. This was a serious confrontational aggravated burglary which involved significant victim impact and, on behalf of the community, I strongly denounce your conduct.
38 You have a disturbing criminal history for a young man and have failed to take advantage of previous opportunities with community-based orders. An aggravating feature is that you were on a community correction order granted but 3 months before offending. As your counsel conceded, you failed to take advantage of the order due entirely to your own lack of engagement with it.
39 I must also take account of current sentencing practice and have done that, particularly having regard to the cases mentioned in and the observations of the Court in Hogarth’s case. No comparable cases were provided by either party.
40 Whilst your rehabilitation and the mitigating circumstances are important, so too are the principles of general and specific deterrence, just punishment, protection of the community and denunciation. There should be modest orders for cumulation having regard to the fact that there were four other separate offences. I have had regard to the principles of totality and proportionality and must avoid passing a crushing sentence upon you. Given Langstaff’s young age, lesser criminal history and YJC sentence, no issue of parity arises.
41 Your counsel submitted that whilst there ought to be an immediate term of imprisonment, I should sentence you effectively to time served, about 7½ months, and release you on a community correction order. He claimed such an approach was justified by the application of the principles enunciated in the recent guideline decision of Boulton.[5] It was submitted that, although you have failed on community orders in the past, you are not the same person today and far more suitable for that approach. The prosecution submitted that immediate custody was appropriate, although it was a matter for the Court whether the time served should be extended or not.
[5]Boulton v The Queen [2014] VSCA 342
42 I have given the matter anxious consideration as to the desirability of release on a CCO, its punitive and rehabilitative nature, with or without incarceration, even for serious offences as set out in Boulton.[6] Of course, imprisonment must be imposed as a last resort. However, I am satisfied that even taking account of the mitigating circumstances and the need for rehabilitation, the objective gravity of offending merits a sentence beyond two years' imprisonment, being the maximum that could be given in combination with a community correction order. Moreover, it is clear from the breach report that, in any case, you would not be deemed suitable for release on a CCO.
[6]See particularly: [5] – [6], [113] – [114], [141] and Appendix 1, clause 27 in Boulton.
43 I consider the appropriate total effective sentence would be four years' imprisonment with a minimum of three years, however the Doran principle merits a demonstrable sentencing discount, which I shall implement.
Sentence
44 Mr Allan, please stand up. You are convicted on all charges. On charge 1, you are sentenced to two years and nine months' imprisonment; on each of charges 2, 3 and 4, to six months' imprisonment; and on the summary offence, to one month’s imprisonment.
45 The sentence on charge 1 is the base sentence. I order that one month of the sentence on charge 2 (representing the thefts), one month of the sentence on charge 4 (the damage), and the whole of the sentence on the summary offence (for which you have 4 priors), should be served cumulatively upon the sentence imposed on charge 1 and upon each other. The total effective sentence is three years' imprisonment. I fix a period of 18 months' imprisonment to be served before which you shall not be eligible for parole. I declare that 228 days’ pre-sentence detention be reckoned as already served on that sentence and that such declaration be entered in the records of the Court
46 But for your pleas of guilty, I would have imposed a sentence of four years' imprisonment with a minimum of 2½ years' imprisonment.
47 I shall make the forensic order sought by the prosecution, given the seriousness of the indictable offending; your prior convictions; the fact that the order is not opposed; and the granting of the order is in the public interest. Pursuant to s464ZF(2) of the Crimes Act 1958, you are ordered to undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with sub-division 30A of Part 3 Crimes Act until a sample of sufficient standard is obtained for placement on the database. If you do not consent to the taking of the sample, police may use reasonable force to enable that forensic procedure to be conducted. Just sit down for the moment please. I hand down that signed order.
48 I ask counsel, are there any mechanical issues arising with the sentence I have imposed?
49 COUNSEL: No, your Honour.
50 Mr Allan, you need to go with the prison officers now, thank you. Yes, please remove the offender.
51 [Offender removed]
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