Director of Public Prosecutions v Allen

[2015] VCC 322

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT WANGARATTA
CRIMINAL JURISDICTION

CR 14-01965

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN ALLEN

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wangaratta
DATE OF HEARING:
DATE OF SENTENCE:	20 March 2015
CASE MAY BE CITED AS:	DPP v Allen
MEDIUM NEUTRAL CITATION:	[2015] VCC 322

REASONS FOR SENTENCE
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Subject: armed robbery
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Offender	Mr C. Morgan

HER HONOUR: 

1Benjamin Allen, you have pleaded guilty before me to one charge of armed robbery.  The offence occurred on 5 September 2008, almost seven years ago.  On that occasion, you and a co-accused who was your girlfriend at the time but who, as I understand it, has not been formally charged in relation to this offence, drove your car into a Shell service station in Camberwell, parked the car, entered the service station and ultimately proceeded to make a demand for money from the person who was at that stage the attendant at the service station. 

2Mr Allen, in the course of that demand, you produced an ornamental knife and at one point you suddenly lurched forward and grabbed a hold of the service station attendant by the front of her shirt.  The service station attendant was a female of the age of 37, and at the time of this incident, you were a young man of the age of 25.

3The scuffle continued until it attracted the attention of some students in the area, and eventually broke off, and you were able to escape from the service station together with your girlfriend .

4You were not apprehended for that offence at the time.  The way in which you have come before the court this morning is that at a much later time, DNA was able to be extracted both from yourself and from items at the scene, and your DNA was matched and it became apparent that you were the person who had committed that armed robbery.

5You left for Western Australia shortly after committing this crime, but you returned to Melbourne in February 2014 at a time when your identity in relation to this offence had not been ascertained but when it was clear to you that at some point the police would catch up with you in relation to this offence. 

6You returned for circumstances which were personal to you and I will detail those circumstances in a few minutes.

7Before doing so, it is clear that the offence which you committed and which I have described, of armed robbery is an extremely serious one.  There were some aggravating factors to the offence.  The first was the scuffle with the female service station attendant.  Clearly that must have put her in great fear, particularly as you had a knife with you at the time.  I have not received any victim impact statement from either  her or from any of the other customers who came to her assistance, but clearly this must have been a very frightening event indeed, and one which is to be regarded at the serious end of the range given the fact that there was such a scuffle whilst you were armed with a knife.

8The prosecutor has also pointed out the use of a weapon as being an aggravating factor.  Of course the use of the weapon itself cannot be an aggravating factor because that is part of the offence.  But the fact that the weapon was a knife, rather than some less dangerous implement, does put this offending at the higher level of offending of this kind, and I accept that the use of the knife and the physical struggle does create the circumstances of a quite serious and nasty armed robbery.

9However, the prosecutor himself referred to some mitigating factors which surround your offending, and those factors were provided to me in detail in the plea which was heard by me yesterday.  The prosecutor referred to the fact that you have led a blameless life since this offending.  There has in fact been another conviction in 2014, but I was told and I accept that that was for offending which occurred before this armed robbery.

10I am told that the armed robbery arose out of a rampant drug habit, which you had at the time and that since the armed robbery you have changed your life and you are no longer involved at all with drugs.  The prosecutor also referred to your family responsibilities as a single parent, and the fact that you have a steady job now in Wangaratta.  On the basis of those concessions made by the prosecutor, the prosecutor's submission to me was that the appropriate disposition in your case would be a community corrections order with some period of actual imprisonment.  I am able, Mr Allen, to sentence you to a period of imprisonment of up to two years combined with a community corrections order and that was the course which was put before me as appropriate by the prosecutor.

11I now turn in detail to the defence submissions that were made on your behalf.  As I have said, shortly after this offence occurred, you left Melbourne and moved to Western Australia.  You left with your co-offender, who was your girlfriend.

12A very important event occurred quite soon after you arrived in Western Australia and that was the pregnancy of your girlfriend.  As I understand it, the child, a son, was born and as a result of that birth you suddenly realised that the lifestyle that you had been leading, which involved drugs and alcohol, was a lifestyle which should not be imposed upon a little baby.

13You decided to rehabilitate yourself and have been very successful in that rehabilitation.  One of the measures of that rehabilitation is that you were charged with the responsibility for raising your son at a very early age, after your partner refused to cease the lifestyle of drug addiction and antisocial behaviour which she enjoyed.  As I understand it, you raised the child single-handedly until the age of about four years in Western Australia and you did so with the blessing of the authorities in Western Australia.

14When the child was aged about four, you decided to come home to your parents and you have lived in Wangaratta with them since that time.

15Your early relationship with your parents had been quite dysfunctional.  You were born into a strict Catholic family.  You are home schooled.  I heard from your father, whom himself agreed that as part of your childhood, that you were very strictly disciplined.  You appear to have kicked against that atmosphere of discipline and in fact you left home at the age of 14 years and lived by yourself throughout your teenage years.  As a result of your alienation from your family, you appear to have become involved in the drug culture, running through soft drugs, to amphetamines, and to ice. 

16It is a credit to you that you appear to have maintained employment over that time, and have maintained some schooling.  You made contact with your parents occasionally over that time, but it is very instructive to note that on those occasions your behaviour was so bad that your father was forced to require you to leave the family home twice because of your attitude and behaviour.  Your father gave evidence to me about that, and he also gave quite glowing evidence of the way in which you have changed since your return to your family with your little boy.

17You have committed no subsequent offences.  You now have a steady job in a vineyard.  You have made a concerted effort to turn your life around and all this appears to have occurred as a result of your realisation on the birth of your child.  Your father's evidence was that if you had not changed, that he would have required you to leave the house again.  His evidence is that he did not believe  that you would have changed so emphatically and his evidence is that you are now a man with a respectful attitude, a man who is helpful to his family and a totally different person.  You are also, as I indicated earlier, the sole carer of your boy. 

18Mr Allen, in sentencing you today, there are several principles that I need to keep in the forefront of my mind.  One of them is specific deterrence, that is the need to deter you from committing a crime into the future.  I am satisfied from everything that I have heard on your plea that your rehabilitation has been effected and that you are most unlikely to re-offend into the future.

19I am required also to take into account the issue of general deterrence, that is to deter others who may be minded to commit the offence which you committed.  This is a very important issue in sentencing for the offence of armed robbery.  It is very important to make sure that people do not commit such offences against soft targets-iIn your case, a 37 year old woman who was really not in any position to defend herself against an attack by you, particularly an attack which involved a knife.

20In the normal circumstances, Mr Allen, that principle of general deterrence would only be satisfied by a term of actual imprisonment in order to satisfy the requirement that the community gets the message, that people who commit offences such as you committed will be sentenced to long prison term.

21I indicate in this respect that the maximum prison term for the offence of armed robbery is 25 years' imprisonment.  The Court of Appeal has recently, in the case of Boulton, indicated that in some circumstances a community corrections order by itself can be seen as equally punitive as a gaol term, and I accept that this is so.  I accept that there is a significant general deterrent effect to be given by community corrections order and in some circumstances, that community corrections order may be appropriate to stand by itself instead of a prison term to accommodate the principles of general deterrence and specific deterrence.

22Mr Allen, another principle which I must take into account in sentencing you today is rehabilitation.  I have indicated that your rehabilitation has been effected.  I need to be careful in sentencing you that I do not do anything to destroy that rehabilitation, but rather that the sentence that I impose continues the good work that has already been done.  Mr Allen, in all the circumstances of this case, what I have determined to do is not to sentence you to a period of imprisonment but to sentence you instead to a community corrections order.

23Mr Allen, I can only do that if you agree to the terms of the community corrections order, and can I say to you that I propose to put you on a community corrections order for a period of three years.  I also propose that you perform 450 hour of unpaid community work over that period of three years.  I also propose that you undergo assessment and treatment for alcohol abuse.  The reason for that condition is that your father indicated that there was some occasions on which alcohol may have contributed to some unsavoury behaviour on your behalf during the time that you have been living in Wangaratta.  I do not want to overstate that.  I have not taken that into account as a significant factor in sentencing you today.  But just in case there is any residual issue of alcohol, it is my view that assessment and treatment would be a proper matter to make provision for as part of your rehabilitation.

24I propose also to make an order for compensation to Shell for the sum of $150 which you stole.  I understand that order is by consent, and I have signed the order accordingly.

25Mr Allen, what I will do is have my associate provide a copy of the community corrections order terms to you, and I will ask your barrister to go with him so he can explain to you the terms of the community corrections order.  If you agree to abide by those terms, then you should sign the document.  If you then over the period of the three years disobey any of these terms, then you should expect to come back to be re-sentenced by me, and can I say Mr Allen, you should expect on that occasion to be sentenced to a term of actual imprisonment.  Yes, thank you, I will hand down the document.

26MR MORGAN:  Would you like my client to sign this now to indicate that (indistinct) this provision, therefore he (indistinct) sign it.

27HER HONOUR:  Yes.  Yes, now Mr Allen, you've signed that document and so have I.  the document records the terms of the community corrections order, you will need to comply with those terms.  You need to attend at the Community Corrections Centre within two clear days.  I suggest you make arrangements to do that today.  Yes, are there any other matters?

28COUNSEL:  No, Your Honour.

29HER HONOUR:  Yes, my associate just needs to put the compensation order onto the formal order, so he'll do that and I'll sign the order when I've left the Bench.  Yes, thank you, I'll otherwise adjourn to 2.15 Monday.

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