Director of Public Prosecutions v Allen

[2014] VCC 1662

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYDE ALLEN
LEMERE DIAZ

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	1 October 2014
DATE OF SENTENCE:	2 October 2014
CASE MAY BE CITED AS:	DPP v Allen
MEDIUM NEUTRAL CITATION:	[2014] VCC 1662

REASONS FOR SENTENCE
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Subject:
Catchwords:     Aggravated Burglary – common law assault
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Mandie
For Accused Allen	Mr M. Sharpley
For Accused Diaz	Mr W. Parker

HIS HONOUR:

1Jayde Allen and Lemere Cindy Diaz, you have each pleaded guilty to the following charges.

2Charge 1; on 23 March 2013 aggravated burglary on a premises at 2 Riggall Road in Traralgon with an intent to assault a person there.  You had with you the weapons of a knife and a bat.  This offence has a maximum sentence of 25 years' imprisonment.

3Charge 2; on 23 March 2013 theft of $20 from Carly Gates.

4Charge 3; on 23 March 2013 theft of $350, a car key, mobile phone and a blue case of medication from Joshua Hartley.

5Charge 4; on 23 March 2013 you assaulted Carly Gates.

6Charge 5; on 23 March 2013 you assaulted Joshua Hartley.

7Lemere Cindy Diaz, you have also pleaded guilty to Charge 6.  On 5 April 2013 you trafficked in a drug of dependence of methylamphetamine. The penalty is a maximum penalty of 15 years' imprisonment.  You also pleaded guilty to a summary charge of breaching an intervention order in respect of Carly Gates.

The background of the offences:

8The backgrounds of the five charges you have jointly pleaded guilty to is drug trafficking.  Ms Diaz had befriended Carly Gates through drug transactions between them. I will now refer to the summary.

9In the month leading up to the offences Gates and Diaz had almost daily contact.  During this period Diaz engaged Gates to accompany a male associate to Melbourne to purchase drugs on Diaz's behalf.  The drug transaction was not successful and the male associate left empty handed.  As a result of the failed transaction Diaz lost between $2000 and $3000.  Diaz blamed Gates for the failed transaction and made her feelings known, engaging in threatening and harassing behaviour toward Gates.

10As a result Gates applied for and was granted an intervention order against Diaz on 19 March 2013 at the Latrobe Valley Magistrates' Court.  The order was for a period of 12 months and prohibited Diaz from, amongst other things, assaulting, harassing or threatening Gates, contacting or communicating with Gates, approaching or remaining within five metres of Gates, and getting another person to do anything prohibited by the order.  At the time of the offences Gates was in a relationship with the victim, Joshua Hartley.  Hartley lived with his father Kevin at 2 Riggall Road, Traralgon.

The circumstances of the offending:

11At about 1 am on 23 March 2013 Martin Costello drove past Riggall Road and observed activity at the property.  Costello was a friend of the co-offender, Belinda Morrison.  He called Morrison and advised her as to the activity at the property.

12At about 2.30 am Jayde Allen, Diaz and Morrison drove to Riggall Road in Diaz's car.  They parked at the northern end of the road and Morrison walked to the property.  Costello was still present at the property.  Morrison entered the house and spoke with Kevin Hartley under the guise that she was checking on his welfare.  Gates and Hartley, that is Hartley junior, were asleep in bed and were woken by the noise of the discussion in the house.  Morrison then went to Joshua Hartley's bedroom and opened the door.  She did this to confirm the presence of Gates.  Gates and Hartley saw her and Hartley told her to shut the door.  Morrison shut the door and left the house.  She returned to Diaz's car where she informed the other women of the situation.  One of the women in the car said "Is the bitch here?"  They then drove away.

13Between 4.29 am and 6 am Morrison communicated with Kevin Hartley.  She did this in order to cement her story that she was checking on his welfare and conceal the true reason of her inspecting the house for the presence of Gates.

14At about 6 am Kevin Hartley left the house to go to work.  He left the back door unlocked, which was his usual practice.  Morrison of aware of this.

15At about 6.15 am Allen, Diaz and Morrison and an unidentified female returned to Riggall Road in Diaz's car.  They parked at the northern end of the road and walked to the property. Allen, Diaz and Morrison entered the house by the back door in possession of weapons, namely a bat and a knife.  The unidentified female remained in the car.  The Crown is unable to say who was in possession of which weapon.

16Once in the house the women went to Gates and Joshua Hartley's bedroom where they were asleep.  They woke up and Diaz approached Gates and placed a hand over her mouth.  One of the women held a knife to Hartley's throat.  Morrison then punched Gates to the head a number of times.  Diaz demanded that Gates get out of bed.  The victims were then pulled out of the bed onto their feet.  Hartley was escorted from the house by Allen.  Whilst doing so Allen demanded the keys to Hartley's car and his wallet.  Allen found the keys and marched Hartley to his car which was parked in the driveway of the house.

17The unidentified female was standing next to Hartley's car.  Allen put Hartley in his car and said to the female "Watch him while I sort this out."  Meanwhile Diaz and Morrison remained at the house with Gates.  They punched her and struck her with the bat.  At one point Gates was alone in the bedroom with Diaz.  Diaz demanded Gates' mobile phone and Gates told her that it was in the lounge.  Diaz left the room and returned with a mobile phone belonging to Hartley.  Allen then ran back inside the house.  Hartley then managed to get out of the car and run away through nearby parkland.  The unidentified female ran after him for a short distance.  He ran to a nearby residence and contacted police. This is the charge of common law assault against Joshua Hartley.

18This offending is the most serious form of aggravated burglary.  It involves planning, surveillance of the property and invasion of the home with an intention to assault the people inside, particularly Carly Gates.  It involved waking people in their bed and inflicting violence and then attempting to remove them from their home to take them to unknown places.

19In respect of you, Ms Diaz, this was at a time when there was a court order prohibiting you from going anywhere near Carly Gates.  This is an aggravating feature of this offence in your case.

20Allen, Diaz and Morrison then went to leave the house.  On the way to the front door Diaz took a blue satchel containing medication belonging to Hartley.  In addition the women took $350 from Hartley and $20 from Gates.  The theft of the cash occurred whist the victims were asleep prior to being woken up and assaulted and they are the two charges of theft; Charge 2 and 3.

21Gates was dragged from the house by her hair by Diaz to Diaz's car.  Whilst this was occurring Allen punched Gates to the head a number of times.  Allen, Diaz and Morrison then attempt to force Gates into the car.  During this attempt one of the women struck Gates with the bat.  This is a charge of common law assault against Gates.

22At this stage Gates managed to break free and ran to a nearby residence where she contacted police.  Allen, Diaz and Morrison and the unidentified female then drove away from the scene in Diaz's car.  The police arrived at the scene.  At the time of the offence the intervention order in relation to Diaz was in place.  Ms Diaz was therefore in breach of that order.  That is the summary matter that I referred to earlier.

23As a result of the assaults the victims suffered the following injuries.  In respect of Gates the injuries were swelling to the head, cuts and abrasions to her back and a large lump on her right shin.  In respect to Mr Hartley he had cuts to both of his hands.

24On 26 March 2013 Allen attended the Morwell Police Station as a result of being contacted by police.  She was arrested and interviewed.  When interviewed Allen denied any involvement in the commission of the offences.  She denied knowing Diaz and Morrison.

25On 5 April 2013 Diaz was located and arrested by police at a property in Thorpdale.  At the time of her arrest she was found to be in possession of methylamphetamine weighing 5.1 grams.  The drugs were located in her shoes in small resealable bags containing amounts ranging from 0.01 grams to three grams.  Other items located were deal bags, scales and notes detailing moneys owed to Diaz.

26In the depositions at p.337 to 340 were the written records of Ms Diaz's transactions and the money owed to Diaz by drug clients.  You have obviously conducted the business of trafficking for significant sums of money.  The quantity of the drug found on you was 1.6 times the minimum trafficable quantity.  You were taken to the Morwell Police Station where you were interviewed.  When interviewed Ms Diaz denied any involvement in the commission of the offences now before the court.

27On 14 January 2014 both Allen and Diaz resolved this prosecution and indicated pleas of guilty to the charges on the indictment and agreed to the facts set out in the prosecution opening, to which I have extensively referred.  Your co-accused, Morrison, proceeded to committal and was committed for trial on 26 August 2014 at Latrobe Magistrates' Court.  Obviously that matter is unresolved and there are no relevant parity considerations in sentencing either of you in respect of Ms Morrison.

28Ms Diaz, you have consented to and then pleaded guilty to the charge of breaching an intervention order made in respect of Ms Gates.  In respect of that charge I have regard to the principles of double punishment and have treated your breach of that court order as an aggravating feature when sentencing you for the aggravated burglary charge.  I have not applied any cumulation of the sentence for the breach of the intervention order to your total effective sentence.

Personal circumstances – Jayde Allen

29I now turn to the personal circumstances and I will first of all deal with yours, Jayde Allen.  You were born on 17 November 1988, you are soon to turn 26 years old.  The criminal records have your birthdate as 17 November 1989, so does the report of Aaron Cunningham dated 17 February 2009, which is Exhibit A1.

30You are the eldest of four children.  You have endured a troubled upbringing, with your mother being involved in a number of physically abusive relationships overlaid with heavy drug use.  At age 13, or Year 7 for you, you were placed in foster care by DHS.  You reported feeling a sense of abandonment at this process.  You ran away from foster homes and were finally placed in an Aboriginal Youth Refuge.  You are not of indigenous descent.  You lived in a relationship with an Aboriginal man and moved to Bega.  You have been subjected to physical violence and then returned to Gippsland and took up residence with an “aunty” in the Lakes Entrance area.  You have worked as a housekeeper at the Lakes Entrance Hotel.

31Your education was not advanced past Year 7, when you were placed in foster care.  In the past you had a Xanax addiction.  At one stage you were hospitalised for six days, the result of a drug induced psychosis.  On a later occasion you were hospitalised because you ceased taking Xanax due to the side effects on you.  Ultimately during your first period of imprisonment in 2009 you detoxed from Xanax.  Whilst in prison you started using heroin.  You have a history of three heroin overdoses in 2010.  In December 2012 you started experimenting with “crystal meth”.  It was your use of “crystal meth” and the connection with Diaz and others that brought you back to the criminal justice system through this prosecution.

32Dr Julie Janev in her report, Exhibit A2, reported on 8 August 2013 that you have a long history of suffering from depression and anxiety.  You are partaking of psychological treatment by Sandra Kahan through Caraniche whilst in prison, and her reports and the like are Exhibit A3.  This treatment is predominantly an intensive residential drug program.  The urine reports, which are Exhibit A4, indicate that between April 2013 and June 2013 you have been clean from illicit drug use.

33Whilst in custody and on remand for these charges you have actively sought to improve and rehabilitate yourself.  Exhibit A6 had certificates for your completed courses at the Kangan Institute.  You have driven this process despite not having visitors whilst being incarcerated.  Your progress in prison has been such that you have been given a job in the Rivers End Café at the Dame Phyllis Frost Centre.  This is a position of great trust within the prison which you have earned by your behaviour in prison.

34Ms Maudech was called to give evidence in support of your rehabilitation.  Ms Maudech works with you in prison on the basis of a Melbourne City Mission program called 'Mates for Inmates'.  There is a report, which is Exhibit 7.  She stated that you made a serious effort to turn things around in your life.  She stated you have taken responsibility for your offending in this case.  Consistent with your other efforts to rehabilitate you have engaged with VACRO in preparation for your release from custody.

35In summary you have done very well whilst on remand for these charges.  In your letter to me as the sentencing judge, which is Exhibit A5, you state:

"This achievement enlightens me and it is in this I have gained experience and skills that allows me various employment pathways, and with self-help, become a productive member of society."

36I accept that you understand the seriousness of your offending and that you are at a point in your life where you, and you alone, can choose to serve this sentence and never go back to drugs and the inevitable criminal behaviour that accompanies it, or you can press the button on the revolving door and end up in the seat at the back of court room such as the one you sit in now.

37You have two main problems on the horizon.  One is the potential imprisonment time you owe the South Australian parole board.  Your counsel submitted there was potentially eight months custody.  There are no precise details of this sentencing issue so I am unable to take it into account when considering the totality of your sentence.  The second problem in sentencing you is your past criminal history.

38A summary of your prior criminal history is as follows.  On 18 October 2006 you appeared at the Children's Court here in Latrobe Valley for theft of a motor car and other charges.  You were then placed on a good behaviour bond for $250.  On 4 February 2008 at Latrobe Magistrates' Court you were dealt with for theft, criminal damage, harassing a witness and unlawful assault.  You were then placed on a 12 month Community Based Order.  On 1 September 2008 at the Latrobe Valley Magistrates' Court you were dealt with for theft, entering a building to steal and obtain financial advantage and you were placed on a six month sentence, wholly suspended.  On 19 February 2009 you were dealt with for proceeds of crime, theft of a motor car, handle stolen goods and driving in a manner dangerous.  On that occasion you were sentenced to seven months' imprisonment.  You also have been dealt with for the breach of the Community Based Order and the suspended sentence was restored.

39And finally, on 14 September 2012 at Sunshine Magistrates' Court you were dealt with for aggravated burglary, theft, theft of a motor car, aggravated burglary with a person present and handling stolen goods.  On that occasion you were sentenced to four months' imprisonment.

40You have amassed a fairly solid criminal record between 2006 and 2012.  The offence in March 2013 must have been within eight weeks of your release from prison for sentences at Sunshine in September 2012.  The primary offence in this case is aggravated burglary.  The last sentence you received was not long enough for you to understand the specific deterrent aspect of it, in particular to the charge of aggravated burglary.  This is a specific aggravating feature of your offending in this case.

Personal circumstances - Lemere Cindy Diaz

41You are 47 years old.  You have eight biological children ranging in age from 25 years to 11 years of age.  You also treat Emma, who is 25, as your daughter, but she is in fact the half-sister of your eldest child, Anthony.  Anthony, 25, Tori, 19, and Michael, 18, live in your Department of Housing residence in Traralgon.  Aurora, 23, lives independently with her partner in Traralgon.  Andrew, who is 15, Jayden, 13, and Ty, 11, live with their father, your ex-husband Robert Baird.  Joshua, 21, has moved to the United States to pursue an acting career. Emma, 25, now lives in Morwell.

42You had an unhappy childhood.  You were one of five girls and a brother in a family.  Your parents conducted a mixed business in Bankstown, and Newcastle, in New South Wales.  At a young age you were sexually abused by a babysitter whilst they were at work.  You reported that abuse to your mother but you were disbelieved by her and evicted from the family home.  Your father arranged independent accommodation for you.

43When you were 15 years old your mother ended the marriage to your father and moved to Spain with your siblings.  You were left behind.  You were abandoned and then embarked on a self-destruction mission.  You descended into the life of a heroin junkie and worked as a prostitute.  In your words you were "used and abused by men."

44You have been in two abusive marriages.  The first marriage ended after you had been beaten and tortured over a period of seven days in front of your children.  You escaped and ended up in a woman's refuge and still fear your first husband will discover your location.  Your second marriage lasted for only 13 months and ended as a result of your husband's persistent unfaithful behaviour.

45A significant event in your life was when your father died in 2012.  You have not completed the burial process for your father because of your incarceration.  Your children visit with you in prison.

46Despite the disruption to your education at age 15 you have subsequently returned to education and completed Year 12 HSC.  You then completed two years in an information technology course at the Sydney Institute of TAFE.  You have worked in many areas such as a motor mechanic, scaffolder, fencer and truck driver.  Prior to your incarceration for these offences you were working as a truck driver for Esso.

47Clearly you are a person of intelligence with an aptitude for work and to lead a productive life.  In his report dated 4 September 2013 Dr Aaron Cunningham, psychologist, diagnosed you as suffering post-traumatic stress disorder.  In his later report dated 19 September 2014 he states you continue to suffer from post-traumatic stress disorder.  In terms of your offending Dr Cunningham does not mention the charges of aggravated burglary or the assault charges.  I doubt that Dr Cunningham got a full and accurate history from you about the actual offences before this court.

48In terms of your drug use it commenced with heroin when you were 15.  You have had a time of using cocaine.  In 1992 you had a period of drug and alcohol treatment at Pleasant View.  That treatment is now over 22 years ago.  In 2006 you commenced using methylamphetamine and continued to use it up until the time of your arrest in April 2013 for these matters.  Since your arrest for these offences you have been sentenced on three separate occasions.

49On 7 May 2013 you were sentenced to four months' imprisonment for driving whilst suspended.  On 6 September 2013 you were sentenced for six months' imprisonment for possession and trafficking in a drug of dependence and using a weapon.  This offending occurred prior to the offending in this proceeding.  You appealed the six month sentence and were re-sentenced in the County Court here in Latrobe to four months' imprisonment.  You have served a total of 240 days imprisonment for those other offences since you were remanded in custody on these offences.  In total you have served 305 days imprisonment on remand for these offences.

50You have admitted a criminal record between 1996 and 1999.  You had five court appearances for theft.  In 2005 you were sentenced to a wholly suspended sentence twice for driving whilst disqualified.  In April 2006 your luck ran out and you were sentenced to six months' imprisonment for drive whilst disqualified and other charges.  In 2008 you were sentenced to an Intensive Correction Order and a wholly suspended sentence for driving while suspended.  In 2010 you had your first drug conviction for possession/use amphetamine and were fined on that occasion.

51In July 2010 you were sent back to prison for driving whilst suspended.  Your prior convictions and offending are predominantly around driving while suspended and other driving charges.  At the time of these offences you were subject to an intervention order in respect of the victim Carly Gates.  The aggravated burglary occurs after your dispute over the loss of money in the drug deal gone wrong.  You held Carly Gates responsible.

52You, together with Allen, a much younger person, and Morrison, nearer to your age, and another unknown female, engaged in this offence.  It has a level of vigilantism in respect of a dispute over a debt.  It has planning and surveillance before the offence; some of you were armed with a knife and a bat.  It does not matter which person had what weapon.

53The three who entered the house, that is you, Allen and Morrison. Each of you were on a joint mission either to assault or steal from the occupants, or both.  As it turned out you both assaulted and stole from your target, Carly Gates, and her boyfriend Joshua Hartley.  You entered the home, you dragged both of the victims out of bed, you threatened them, you assaulted them.  You took them from the house, still assaulting them until each of them made good their escape from you.  This was outrageous criminal behaviour instigated by your desire to punish Gates for messing up a drug deal which was for your benefit.

54As I have said earlier the aggravating features are the above features and; that you were subject to a court order prohibiting you from going anywhere near Gates.  The sentence for the totality of your offending must reflect these facts.

55In addition to the events of 23 March 2013 you were also charged with trafficking methylamphetamine.  You had 1.6 times the trafficable quantity on you at the time of the arrest.  You had notes of the money owed to you in respect to the other deals.  It was put on your behalf that you were collecting money to buy for a group.  The implication of this submission was that you were not benefitting from trafficking “ice” in a monetary sense.  I reject that submission.

56I find that you were in the business of trafficking methamphetamine to make money to support your own habit, and otherwise to make money.  I note the submission that you have emphysema but there is no medical report or material tendered on your behalf for the court, that is me, to assess the extent of your physical condition.

Sentencing considerations:

57The basic purpose for which a court may impose a sentence of imprisonment is just punishment, deterrence; both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you I must have regard to a range of factors such as the seriousness of your offences, your culpability for them and your personal circumstances, and those of the victims, Carly Gates and Joshua Hartley.  I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible you as the offenders are rehabilitated and reintegrated into society.

58Neither of the victims of your offending have filed victim impact statements so specific issues in relation to either of them are not before me.  Gates did suffer injuries of swelling to the head, cuts and abrasions to her back and a large lump on her right shin.  Mr Hartley received cuts to both of his hands.

59You have pleaded guilty at an early stage in these proceedings.  The pleas were indicated at the committal proceedings.  Your pleas have a utilitarian value allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.

60Your pleas allow for the preservation of court and police resources to deal with other matters.  Your pleas vindicate public confidence in the legal process set up to protect the community.  You have, by your pleas, relieved the victims, Gates and Hartley, from giving evidence against both of you.  It facilitates some closure for them as victims of your offending.

61Your pleas are also a clear acknowledgement by each of you that you accept your responsibility for your criminal behaviour in this case.  Your pleas also recognise you are willing to facilitate the course of justice in the community.  I also accept your pleas of guilty to these charges indicates and demonstrates remorse on both your parts.  You indicated an understanding of the physical impact of the assaults on your victims.  I accept that you have demonstrated remorse for your criminal activity.

62The main offending in this case for each of you is the aggravated burglary charge.  The aggravating features are - and this will sound like repetition but it is important:

(a) the surveillance and planning to ensure the target of your attentions, Ms Gates, was actually at the address;

(b) the organisation of having four people in the raiding party, as I describe it.  Three inside the premises, one in the getaway car;

(c) the motivation of payback for a previous drug deal gone wrong.  This is a confrontational aggravated burglary with levels of vigilantism involved in it;

(d) the invasion of the premises in the dark and getting the victims at their most vulnerable while still asleep in their bed;

(e) the taking of weapons of a knife and a bat clearly showed both planning and intent;

(f) the invasion is of a home, where people are entitled to feel safe and protected.

63In relation to the assault charges the aggravating feature are:

(1) sustained violence in respect of each victim;

(2) the use of, or threat of the use of weapons; a knife and a bat in this case;

(3) forcing the victims from their bed and out of the house to different vehicles outside;

(4) inflicting physical injuries on both of them.

64As I said previously this was an outrageous series of events that call for stern punishment.  Ms Diaz in your case you are the instigator of this attack.  It was you who had the dispute with Gates.  You were the oldest person there.  You were subject to an intervention order not to go anywhere near Gates let alone assault her.

65In mitigation this is your longest time in custody.  You have been in custody for 546 days, counting this day.  Of those days in custody only 305 days are referable as pre-sentence detention for these offences.  You have served sentences totally of 240 days in the meantime.  I have taken into account the principles of totality when sentencing you for these offences.  I regard your prospects of rehabilitation as fair.  You have physical and psychological issues which will make your time in custody difficult and I have made allowances for that in your sentence.

66Ms Allen, in your case you had all the hallmarks of an enthusiastic participant in these offences.  Your connection to the co-accused was methylamphetamine use.  Ms Diaz is old enough to be your mother.  You are still a young person.  Your own mother was in court to support you on the plea hearing and I note that she is here today.  The plea material has all the pointers to a reasonable chance for you to rehabilitate.  You say you want to lead a productive life in your letter; only you can make that happen.

67As I have said earlier you have two prior convictions for aggravated burglary which were dealt with in a Magistrates' Court and you were sentenced to four months' imprisonment.  You had only been out of custody approximately two months when you committed these offences.  That is an aggravating feature of your criminality.  On the positive side you have done well in rehabilitation terms from your time in custody.  I have fixed a lower than usual non-parole period so that you have supervision on your release and assist you obtain your productive life that you seek.

68Mr Rattray, for Ms Diaz, submitted that a sentence of imprisonment with the time served declared and a Community Corrections Order was the appropriate sentence.  Mr Wheelahan submitted imprisonment was the inevitable sentence but urged in Ms Allen's case that rehabilitation was the main factor.  The only appropriate sentence for these charges is imprisonment.  For the reasons expressed earlier you are equally culpable for the different reasons and the sentences reflect that position.  Ms Diaz, I sentence you as follows.

Sentence - Diaz

69Charge 1; you are convicted and sentenced to four years' imprisonment.  That is the base sentence.

70Charge 2; you are convicted and sentenced to three months' imprisonment;

71Charge 3; you are convicted and sentenced to three months' imprisonment;

72Charge 4; you are convicted and sentenced to one year of imprisonment;

73Charge 5; you are convicted and sentenced to one year of imprisonment;

74Charge 6; you are convicted and sentenced to one year of imprisonment.

75On the summary charge of breaching an intervention order you are convicted and sentenced to six months.  I order that six months of the sentence in Charge 4, six months in the sentence in Charge 5, and six months in the sentence in Charge 6 be served cumulatively upon the sentence in Charge 1 and on each other.  That is a total effective sentence of five and a half years' imprisonment.  I fix a non-parole period of three and a half years.

76I declare that you have served 305 days pre-sentence detention under s.6AAA of the Sentencing Act.  But for your plea of guilty I would have sentenced you to seven and a half years with a five and a half year minimum period.  I have made the disposal order that is consented to and signed.

Sentence - Allen

77Ms Allen, I sentence you as follows.  On Charge 1 you are convicted and sentenced to four years imprisonment.  That is the base sentence.

78Charge 2; you are convicted and sentenced to three months' imprisonment;

79Charge 3; you are convicted and sentenced to three months' imprisonment;

80Charge 4; you are convicted and sentenced to one year of imprisonment;

81Charge 5; you are convicted and sentenced to one year of imprisonment.

82I order that six months' of the sentence in Charge 4 and six months of the sentence in Charge 5 be served cumulatively on the sentence in Charge 1 and each other.  That is a total effective sentence of five years' imprisonment.  I declare that you are to serve three years before being eligible for parole.

83You have a pre-sentence detention declaration of 556 days which are to be deducted administratively from your sentence. Under s.6AAA of the Sentencing Act I would have sentenced you to seven years with a minimum of five years but for your plea of guilty.  I have ordered that there is a forensic sample which was consented to and signed.  I have signed that order.

84Just to be clear to you I was told during the course of proceedings, Ms Allen, that the authorities have already got a forensic sample from you but the order I have signed means that the authorities are entitled to take a scraping from your mouth, do you understand that?

85OFFENDER ALLEN:  Yeah I do.

86HIS HONOUR:  Yes, thanks.  Was there anything else?

87MR SHARPLEY:  No, Your Honour.

88MR PARKER:  No. Your Honour.

89HIS HONOUR:  I've signed those orders and I hand them down.  You can remove the prisoners, thanks.

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