Director of Public Prosecutions v Allchin

[2023] VCC 849

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-00027

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK ALLCHIN

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April & 16 May 2023
DATE OF SENTENCE:	24 May 2023
CASE MAY BE CITED AS:	DPP v Allchin
MEDIUM NEUTRAL CITATION:	[2023] VCC 849

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:          Attempted armed robbery – assault emergency worker on duty

Legislation Cited: 

Cases Cited:

Sentence:12 months' imprisonment, 18-month CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Vasiliou	Office of Public Prosecutions
For the Accused	Ms K. Rolfe	James Dowsley & Associates

HIS HONOUR:

1Mark Allchin, you have pleaded guilty to an offence of attempted armed robbery for which the maximum penalty is imprisonment for 20 years and to a related summary offence of assault an emergency worker on duty for which the maximum penalty is imprisonment for six months.

2You have admitted a criminal record going back to 1996 which contains, amongst others, offences of dishonesty including burglary and armed robbery.  You also have a record for violence and possessing controlled weapons.

3Although most of your offending seems to be within the general description of relatively petty crime it has been interspersed with offending for which you have served terms of imprisonment of up to three and a half years or more.  In recent times your offending has been visited with relatively short periods of imprisonment.

4The prosecution tendered a summary of prosecution opening dated
22 March 2023 which was read to the court.  I summarise it briefly as follows.

5The offending occurred in the early hours of 12 September of last year when, at about 1.55 am, two police officers performing duties in the Doncaster area responded to a report of a male, who turned out to be you, sleeping rough under a carpark bridge located in Tram Road, Doncaster.

6When the police officers arrived they were confronted by you, and they described you as behaving erratically and aggressively.  You lunged towards one of those officers.  You were warned to back off with the threat of OC spray being deployed and you continued to act in an aggressive way.  At one stage you broke down crying for what the police described as about 10 seconds before circling one of the officers and running towards them in an aggressive way, pulling your hands out of your pockets with your fists clenched in a manner that put the officer in fear that you were about to assault him.  The other officer intervened by spraying you with OC spray.

7You then fled the scene shouting, and headed towards Westfield Shopping Centre, Doncaster.  Police pursued and sought to locate you in that vicinity. 
When you arrived at Westfield Shopping Centre you entered the premises at about 2.30 am through a side door which had been accidentally left open by cleaning staff.  You confronted a security guard who was patrolling the ground level near the Myer and Sportsgirl shops.

8The security guard was carrying a portable radio.  You confronted him and asked him to put his radio on the table and give you money and food.  You pulled out a black-handled knife which was described as about 10 centimetres in length and held it in your right hand whilst again requesting the security guard's radio.  You also again asked him for money and food.  He sought refuge behind a table and was able to avoid immediate contact with you by moving around the table.  You threatened that you would kill him if he did not put his radio on the table.  You also repeated your request for money and food and asked him, 'Do you want to be dead?'.

9That, of course, put the security guard in fear.  He placed the radio on the table.  He then sought to talk you down and was able to persuade you to give the radio back with the promise to assist you to buy some food and provide you with money.  He offered to take you to the food court and get you some food to allow you to go home.  His attempt to de-escalate the situation was successful.  You calmed down and complied with his request.  You returned the radio to him and placed the knife back in your jacket pocket.  You then walked towards the information desk with him.

10The total interaction with the security guard lasted about three minutes.  At about 2.50 am police attended the location, having been alerted by the security guard's supervisor.  They approached you on the first floor.  You were told by the police to get down on the ground.  The police described you as holding something in your right hand before dropping the item and running off towards the ground floor.  The police chased you, tackled you to the ground and handcuffed you.  During that process you received a severe cut to the head which was described as bleeding profusely and required medical attention.

11Police found that you were in possession of pliers and two screwdrivers. 
You were arrested and taken back to the Doncaster Police Station.  At about 11 am that morning you were interviewed, but a decision was made to terminate the interview because of your non-compliance and aggressive conduct which was still evident at that time.

12The police later attended the car park in Tram Road, Doncaster where you had been found sleeping rough.  They seized three Wiltshire knife packages and a knife scabbard and two screwdrivers similar to those found in your possession at the time of your arrest.

13There is no victim impact statement.

14Your counsel provided me with written submissions on your behalf dated 26 April 2023 which is Exhibit 1 at the plea hearing, along with a report from Mr Ian Mackinnon, psychologist, dated 23 April 2023 and a supplementary report from Mr Mackinnon dated 24 April 2023 which is Exhibit 2.  Then a letter from Trent Jansz of the GEO Group Australia Pty Ltd concerning programs that might be open to you upon your release from custody, at least to the extent that you continue to be in custody at the Ravenhall Correctional Facility where Mr Jansz and his colleagues are based, which is Exhibit 3.

15During the course of the plea hearing, it became useful to obtain further information from Mr Jansz.  He provided a supplementary letter dated
3 May 2023 which is Exhibit 5.  I was also provided with a flyer in relation to the Nexus Program administered by Mr Jansz's organisation, the GEO Group Australia Pty Ltd.

16Mr Jansz also gave evidence at the adjourned hearing of the plea.  During the course of that evidence, it became apparent that Mr Jansz and his organisation were engaged at the Ravenhall Correctional Centre.  To the extent that you may be housed at some other correctional facility it would be unlikely that Mr Jansz would be able to continue to provide the same support that he has offered through the two letters and the evidence that he provided to the court.  It is to be supposed that there may be other programs of a similar kind available to you which would assist you, upon your release, to obtain accommodation and the support necessary to reintegrate into the community.

17I have not heard any evidence as to the existence of such support.  It is pure speculation as to where you will be housed from today onwards and I am in no position to guess what programs may be available to you. 

18The report of Mr Mackinnon sets out your background.  It shows that you had a relatively good upbringing.  You chose to leave home at the age of 14 to enable you to pursue smoking cannabis.  Through that decision and you mixing with other people who were engaged in similar activities you progressed to abuse of other drugs.  You have had, intermittently at any rate, a substance abuse habit with various illicit drugs and alcohol over a number of years.

19Nevertheless, you have been able to complete an apprenticeship as a boilermaker and you have worked, including running your own business for a time.

20Your father was a very significant figure in your life, and when he died in 2002 from a heart attack your life seems to have become increasingly chaotic.

21You have had relationships with females.  You have a son who is 27 now, but you have little or nothing to do with him.  Your last relationship ended in 2018 and from what I understand from the reports and the submissions of your counsel, your life has deteriorated significantly in the period since that relationship came to an end, involving living in temporary accommodation, being homeless and living on the streets.

22There is a real risk of you becoming institutionalised.  The thrust of your counsel's submissions is that the public will be better protected by promoting your rehabilitation, reducing the risks of you becoming chronically institutionalised, and assisting you to find accommodation and to have sufficient supports to enable you to reintegrate into society.

23There have been some positive signs from what you have done during your period on remand.  You have shown an inclination to take whatever opportunities are available to you to reintegrate into society and to promote your own rehabilitation.  Sadly, your criminal record in recent years, as well as over the period since 1996, suggests that there is a very significant risk of you committing further offences.  I am far from convinced that your prospects of rehabilitation are good.  I do not regard them as hopeless, but you will need to demonstrate by action that you have a genuine wish to pursue your rehabilitation.

24Your mental health at the time of your offending is said by Mr Mackinnon to have been plagued by post-traumatic stress disorder and mixed anxiety and depression which, according to his reports, suggests that your moral culpability is reduced as a result of those mental conditions impacting on your capacity to act rationally. 

25I am not convinced that there is a nexus, or sufficient nexus, to enable me to apply the Verdins principles to reduce your moral culpability or to reduce the need for general deterrence.  However, to the extent that that might be the case and I may be wrong in that impression, there is a need also for the court to pay proper regard to protection of the public.

26That need extends not just to the protection of the general public but to the protection of emergency workers and security guards.  Here you have attacked both a police officer and a security guard in circumstances where your conduct was calculated to put them in fear and put them in danger because you had access to weapons and threatened the security guard with such a weapon.

27That said, I regard the prosecution submission that the attempted armed robbery was in the midrange as a little over the top.  I regard this as being towards the lower end of the scale of attempted armed robbery, albeit that it was against a security guard going about his work in circumstances where he was vulnerable because he was at a shopping centre late at night.  That is an aggravating feature along with the fact that he was threatened with a knife.  However, all in all the de-escalation that occurred quite quickly when he engaged with you in conversation would suggest that this is not offending of a particularly serious kind.  The offence itself is a serious offence.

28Your counsel's submission essentially has been that I should impose a sentence which is akin to time served coupled with a community correction order in circumstances that would enable Mr Jansz and his organisation to give you the assistance you need to reintegrate into the community.  In some respects that is an attractive submission, and I was assisted by hearing from Mr Jansz.  I have no doubt that he would, if he has the opportunity, live up to the indications that he has given and that he would be able to assist you with housing and so on and so forth.

29However, that is only one part of the sentencing process.  I need to pay proper regard to the need for just punishment, denunciation, general deterrence, individual deterrence and protection of the public, particularly where offending is against emergency workers and security guards working in circumstances where they are vulnerable.

30For that reason I cannot accede to your counsel's submission.  However, I am persuaded that I can impose a sentence that, on the face of it, might seem to be unduly lenient for offences of this nature but which provides some hope at least that help might be provided to you in reintegrating into the community so that the public may ultimately be better protected.     

31Whether or not your offending was a product of your mental impairments or a combination of those factors which are clearly relevant to your chaotic lifestyle, and being confronted by police in the early hours of the morning at a place where you were bedding yourself down is a matter of speculation.  But I have no doubt that your chaotic lifestyle has contributed to this offending conduct and that ultimately the public will be better protected if you can receive the assistance necessary to reintegrate into the community.

32For that reason I sought a community correction order assessment report.  That report has come back with a not unreasonable assessment that you are unsuitable for a community correction order at this time and that the risks of you committing further offences during the period of your community correction order would be such as to lead to that conclusion.

33I also sought a report from Forensicare concerning your mental health and such treatment as might be offered to you under the auspices of a community correction order.  The report that I received indicated at the end:

‘Mr Allchin has a mild mental health problem or difficulty.

‘It is respectively recommended that ongoing assessment or treatment of Mr Allchin’s mental health be made a condition of a Community Corrections Order in order to promote wellbeing and reduce the likelihood of re-offending.

‘Mr Allchin could potentially access both psychological counselling and dual diagnosis counselling through his participation in the GEO operated Nexus and Bridge programs.

‘It is the opinion of the writer that Mr Allchin’s current mental state would not impede his ability to engage in a Community Corrections Order or any recommended associated conditions.

‘He does not currently require emergency mental health follow-up.’

34There is a tension between the Forensicare report and the community correction order assessment report which is not easy to resolve.  I am conscious of the fact that the Department of Justice through the administration of community correction orders has a very significant workload and that chasing people like yourself, who in the past have not taken advantage of community correction orders and are deemed to be unsuitable for such an order, imposes particular and perhaps unnecessary burdens on a system which is undoubtedly stretched.

35However, the lesser of two evils, it seems to me, is providing you with some structured reintegration or hope of reintegration into the community.  It seems to me that that is best achieved by a community correction order suitably tailored to that objective.

36Doing the best I can to marry the competing sentencing considerations, I have come to the conclusion that you should do some more time.  I cannot accede to your counsel's submission that a sentence of imprisonment equivalent to the period you have already done on remand, which I think is 256 days not including today, is sufficient for your offending conduct.  But it seems to me that a combined sentence involving a slightly longer term of imprisonment and a community correction order is open to me and can offer the hope of public protection going beyond that which would be likely to arise with a sentence of imprisonment coupled with a non-parole period.

37The effect of a community correction order, and I have in mind that it would be for a period of 18 months from your release from custody, would be that you would have the threat of further imprisonment hanging over your head for the period of the order.  Given your past history it seems to me that there is quite a substantial risk that you will offend again during that period.  However, it is up to you and to the extent you are willing to give it a go then I am willing to offer you that opportunity.

38You have no doubt discussed it with your counsel.  I intend to tailor the order so that it will place the least burden on Corrections during the period of the order but give you the maximum opportunity of availing yourself of such of the mental health services as may be appropriate and available to you under the terms of the order.   

39Now I will tell you what I intend.  I would sentence you to a term of imprisonment with a total effective sentence of 12 months, which would mean that you would need to do another three months or so, and a Community Correction Order for a period of 18 months upon your release.

40Before I ask you whether you would consent to being placed on such an order, I need to go through the terms of the order so that you can understand what those terms are and make an informed decision as to whether you consent to be placed on such an order.

41As with all community correction orders there are a number of core terms and they are that:

·     you must not commit another offence for which you could be imprisoned during the time that the order is in force;

·     you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations, such as not turning up drunk to supervision, appointments and other such conditions;

·     you must report to and receive visits from the Secretary of the Department of Justice or his or her delegate;

·     you must report to the Community Corrections Centre at Reservoir within two clear working days of the order starting;

·     you must let a Community Corrections officer know within two clear working days of you changing your address or job;

·     you must not leave Victoria without first getting permission to do so from the Secretary of the Department of Justice or his or her delegate; and

·     you must obey all lawful instructions from and directions of the Secretary or his or her delegate.

42Those are the core terms.  Do you understand those terms, Mr Allchin?

43OFFENDER:  Yes sir.

44HIS HONOUR:  In addition, I would order that you be under the supervision of a Community Corrections Officer for a period of 18 months and that you undergo any mental health assessment and treatment, and that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the regional manager. 

45Do you understand those terms, Mr Allchin?

46OFFENDER:  Yes sir.

47HIS HONOUR:  In addition, I would require you to reappear at this court for a review of your compliance with the order and you must attend for that review on 29 November of this year at 9.30 am.  Do you understand that term, Mr Allchin?

48OFFENDER:  Yes, Your Honour.

49HIS HONOUR:  It is important that you understand that if you do breach any of the terms of the order you could be brought back before this court, and probably before me, and you could be resentenced for the original offending, which would almost certainly be an increase in the term of imprisonment that I am about to impose upon you.  Do you understand that?

50OFFENDER:  Yes sir.

51HIS HONOUR:  In addition, if you commit a further offence, you could be sentenced for that further offence which obviously would put you in breach of the order.  Also, breaching the order is itself an offence for which you could be sentenced to imprisonment for up to three months.  Do you understand all those facts?

52OFFENDER:  Yes, Your Honour.

53HIS HONOUR:  All right.  Now Ms Rolfe, do you want to have a chat with your client about these terms or are you satisfied that he sufficiently understands what he is up for? 

54MS ROLFE:  It seems clear, Your Honour, but it would be prudent if I just have a minute to briefly confirm.

55HIS HONOUR:  I am happy to do that.  So I will leave the court whilst you do that.

56MS ROLFE:  Thank you.

57MS VASILIOU:  What I might seek, Your Honour, I'm sorry to interrupt, is just to clarify with Your Honour and possibly with my learned friend the PSD calculation.  My instructions are that the accused has completely 254 days not including today.  I think Your Honour made reference to 256.

58HIS HONOUR:  That was my mistake.  I have 254 as well.  I do not know where I got the 256 from.  You agree with that, Ms Rolfe?

59MS ROLFE:  I do, Your Honour.

60HIS HONOUR:  Yes.  All right, 254 days.  Thank you for correcting me.  I will not proceed to sentence until you have had an opportunity of having a chat with your client.

61MS ROLFE:  It'll only take a moment, Your Honour.

62HIS HONOUR:  Yes.  All right.  So I will leave the court momentarily.

63MS ROLFE:  I'm grateful for that time, Your Honour.

64HIS HONOUR:  Yes. 

65MS ROLFE:  Mr Allchin has instructed that he agrees to the conditions of the CCO.

66HIS HONOUR:  All right.  Thank you.  I'll proceed therefore to impose the sentence that I have already indicated. 

67Mark Allchin, for the offence of attempted armed robbery you are convicted and sentenced to imprisonment for a period of 11 months.

68For the related summary offence of assault on police you are convicted and sentenced to imprisonment for two months.

69I order that one month of the sentence of two months for the related summary offence be served cumulatively upon the sentence of 11 months for the attempted armed robbery, making a total effective sentence of imprisonment for 12 months.

70I declare 254 days, not including today, as time to be reckoned as served on the sentence of 12 months that I have imposed upon you.

71In addition, for those two offences I order that you be the subject of a community correction order for a period of 18 months, commencing upon your release from the sentence that I have imposed upon you.

72I have already indicated to you the core terms of that order.  In addition, the terms are that you must undergo any mental health assessment and treatment, that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the regional manager and that you be the subject of supervision during the period of the order.

73You must reappear at this court for review of your compliance with the order as directed by the court.  The first occasion upon which you are required to appear is 29 November 2023 at 9.30 am.

74I further order that the disposal order be made in accordance with the draft with which I have been provided. 

75I declare that but for your pleas of guilty to these offences I would have sentenced you to imprisonment for a period of three years with a non-parole period of two years.

76Are there any other orders that I need make, counsel?

77MS ROLFE:  No, Your Honour.

78MS VASILIOU:  No, Your Honour.

79HIS HONOUR:  Thank you.  Mr Allchin, it will be very much up to you what you make of this and whether you are prepared to accept the opportunity that you have been provided by the court.  It is to be hoped that your movement towards rehabilitation can be sustained on this occasion. 

80Mr Allchin, are you willing to comply with the terms of the order that I have explained to you and your counsel has spoken to you about?

81OFFENDER:  Yes, Your Honour.

82HIS HONOUR:  I will treat your reply as your consent to the order being made in the terms that I have explained to you and treat that as consent to the order which would ordinarily require a signature from you.  So I will take it that that order has effectively been signed by you.

83OFFENDER:  Thank you, sir.

84HIS HONOUR:  Thank you very much.

85MS VASILIOU:  As Your Honour pleases.

86MS ROLFE:  As Your Honour pleases.

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