Director of Public Prosecutions v Allen

[2025] VCC 511

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-24-00124

DIRECTOR OF PUBLIC PROSECUTIONS

V

LEIGH ALLEN

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JUDGE:	HER HONOUR JUDGE BRECKWEG
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2025
DATE OF SENTENCE:	23 April 2025
CASE MAY BE CITED AS:	DPP v Allen
MEDIUM NEUTRAL CITATION:	[2025] VCC 511

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING

Catchwords:              Family violence offending -protracted and prolonged nature of offending – toxic intimate relationship – post traumatic stress disorder – lack of remorse- early plea - prospects of rehabilitation guarded.

Legislation Cited:      Crimes Act1958 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:Kalala v The Queen [2017] VSCA 199; Marrah v The Queen [2014] VSCA 25; Pasinis v The Queen [2014] VSCA 97; DPP v Reynolds (a pseudonym) [2022] VSCA 97

Sentence:                  Convicted and sentenced to a total effective sentence of 3 years 9 months imprisonment; non parole period of 2 years imprisonment; 48 days of pre-sentence detention reckoned as already served; 6AAA declaration – 5 years 3 months imprisonment with a non-parole period of 3 years 3 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S. Taylor	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J. Barreiro	James Dowsley & Associates

HER HONOUR:

Introduction

1Leigh Allen, you have pleaded guilty to the following charges:

·     Two (2) charges of common law assault (Charges 1 and 6). These charges each carry a maximum penalty of five years' imprisonment.

· One (1) charge of making a threat to inflict serious injury pursuant to s21 Crimes Act 1958 (Vic) (Charge 2) which carries a maximum penalty of five years' imprisonment.

· One (1) charge of false imprisonment contrary to common law and s320 Crimes Act1958 (Vic) (Charge 3) which carries a maximum penalty of 10 years' imprisonment.

· One (1) charge of conduct endangering life pursuant to s22 Crimes Act1958 (Vic) (Charge 4) which carries a maximum penalty of 10 years' imprisonment.

· One (1) charge of causing injury recklessly pursuant to s18 Crimes Act 1958 (Vic) (Charge 5) which carries a maximum penalty of five years' imprisonment.

· One (1) charge of damaging property pursuant to s197(1) Crimes Act1958 (Vic) (Charge 7) which carries a maximum penalty of 10 years' imprisonment.

·     One (1) charge of possessing an unregistered category A longarm (.22 single shot rifle) pursuant to s6A(1) Firearms Act 1958 (Vic) (Charge 8), which carries a maximum penalty of two years' imprisonment.

·     One charge of possessing a .22 single shot rifle without a licence and storing the firearm and cartridge ammunition in an insecure manner pursuant to s129A(1) Firearms Act 1958 (Vic) (Charge 9) which carries a maximum penalty of four years' imprisonment.

· One charge of possessing a drug of dependence contrary to s73(1)(b) Drugs, Poisons and Controlled Substances Act 1981 (Vic) (Charge 10) which carries a maximum penalty of one year imprisonment.

2You have also pleaded guilty to the following two (2) related summary offences:

·     1 charge of possessing unlicensed cartridge ammunition pursuant to s124 Firearms Act1996, which carries a maximum penalty of forty (40) penalty units (summary Charge 10).

· 1 charge of possessing unauthorised explosives without a licence pursuant to s21 of the Dangerous Goods (Explosives) Regulations 2022, which carries a maximum penalty of 100 penalty units (summary Charge 16).

Circumstances of the offending

3The agreed facts of your offending are set out in the Prosecution Opening (Exhibit A). I will not repeat the entirety of the facts, but in summary, you began an intimate relationship with the victim, CG, in 2020. In July 2021 you moved into a unit CG had leased in May 2021 for herself and her three children, who lived with her for parts of each week.

4As your relationship continued, CG described you as becoming controlling and jealous and you began to emotionally and physically abuse her. CG became depressed and anxious and started losing weight. From 25 December 2021, after CG asked you to marry her, you began to monitor her phone calls and became extremely paranoid that she was having sexual relationships with numerous people.

5You regularly verbally abused CG, telling her she was worthless, friendless, a terrible mother and she should commit suicide. CG began to believe what you were telling her and felt completely isolated from her family and friends. CG asked you to move out several times and you would leave for a day but then return.

6Charge 1 is a charge of common law assault where, on an occasion between 25 December 2021 and 31 January 2022, you grabbed CG by the arm and dragged her inside, causing fingerprint bruising to her arm.

7Charge 2 covers an occasion also between 25 December 2021 and 31 January 2022, when you threated to inflict serious injury to CG by putting her teeth on the stairs and stomping on her head.

8Charge 3 involves an incident when you took CG to a clubhouse at Bayswater that you both regularly attended. On a date between 1 and 28 February 2022, when you and CG were at the clubhouse to move items into a storage unit, you asked her if she was wearing a wire and told her to admit she was having an affair. You then locked CG in a storage room for 30 to 45 minutes, which constitutes a charge of false imprisonment.

9When you unlocked the door, you took CG to the bar area and again asked her to admit to having an affair. You produced a double barrel shotgun, loaded it in front of CG, placed it under her chin and asked her to put her finger on the trigger and pull it. During this incident you demanded she tell you who she was having an affair with and pushed her against the bar. (Charge 4 - reckless conduct endangering life).

10CG pushed you in the chest to try to get away from you as she believed you were going to kill her. You then threw her to the ground, grabbed her by the throat and were on top of her, strangling her. At this point, CG's legs and arms started shaking/convulsing and she lost consciousness. (Charge 5 - recklessly cause injury).

11When she regained consciousness, CG said she could not breathe or talk due to the damage to her neck and throat. CG left the clubhouse and waited six hours until you came out and drove her home.

12Charge 6 is a charge of common law assault arising from an incident that occurred on or about 13 March 2022 when you were verbally abusing CG at the unit you both lived in, and she went into her son's bedroom to escape you. You followed her in and when she tried to leave, you blocked the doorway, pushed her on to the bed and put your hand over her mouth so she could not breathe.

13Charge 7 is a charge of criminal damage which occurred on or about 15 March 2022 when you were verbally abusing CG at the unit and punched a hole in the bedroom door.

14On 16 June 2022, CG decided to leave the unit and stay the night in a motel as you were verbally abusing CG in front of her daughter who was aged four. She messaged you to tell you she was leaving, and you responded that she was not leaving, you were kicking her out. You sent her messages until 4 am and had your friends message her as well. You used CG's other phone to contact her friends and 'cause trouble'.

15On 17 June 2022, when CG attended the unit to try to collect some belongings, you were throwing her belongings out of the unit and continuing to call her a liar and a cheat. On the same day, CG was admitted to hospital for two weeks due to ‘suicidal ideation’. She weighed 48 kilograms and was diagnosed with Post Traumatic Stress Disorder. She was then admitted to another hospital for psychiatric care for around six weeks due to her suicidal ideation. You continued to reside in the unit which was leased in CG's name.

16After she was discharged, CG returned to the unit and found its contents had been destroyed.

17On 17 August 2022 police attended at the unit to execute search warrants at which time they located:

·Ammunition in the lounge room (Charge 9 and part of summary Charge 10);

·A single shot rifle in lounge;

·One snap lock bag in the kitchen with about 14 grams of cannabis in it; six cannabis plants in the laundry under grow lights and 8 grams of cannabis in foil inside a Subaru vehicle;

·Two fireworks in a bag in the backyard.

Victim impact statement

18In reaching a sentence that is appropriate in all the circumstances, I have had regard to the relevant and admissible portions of the Victim Impact Statement prepared by CG (Exhibit B), which she read to the court. Your offending has no doubt had a devastating psychological, emotional, physical and financial impact on CG and has also affected the lives of her family. CG stated that when your relationship ended, she was admitted to hospital, unable to look after herself or her children. She was diagnosed with PTSD, severe anxiety and depression and still requires weekly psychological treatment. She is unable to work because of her mental health issues and still has physical issues with her throat, neck and shoulder. She was homeless and without any personal belongings or money when your relationship ceased, and she had to seek financial assistance from various services to survive.

19CG stated that her personality has fundamentally changed, and she is no longer an outgoing, happy and secure mother of three.

Record of Interview

22On 17 August 2022 you participated in an interview with police. In very brief compass, you told police that it was the victim, CG, who was violent towards you, that she was unfaithful to you, and you had “caught her out”. You admitted you were sometimes physical towards her, but this was in response to her assaulting you first and you wanting to stop her. In terms of the clubhouse incident, you said she attacked you and you grabbed her, threw her to the ground and locked her in the room to protect her as she was threatening to kill herself. You said she had bruises from you sitting on her to restrain her and that you thought she had an iron problem. You denied having a firearm during that incident and only said that you would get a gun and kill yourself and CG could pull the trigger. You said CG was “fucking evil” but denied strangling her or rendering her unconscious. You admitted you did punch the wall, but it was not near CG.  You admitted possession of the six cannabis plants, which you said were for personal use, and the ammunition and shotgun in the lounge room were left there by a man who had helped you move in.

23You participated in a further interview with police on 18 May 2023, and stated that you never sent CG threatening texts, although you admitted calling her names like “fuckwit”, and telling her to drive her car into a tree. You said you did not use tracking devices, but you did record her using your mobile. You said CG was lying, that you were not the 'controlling one' and CG was contacting other men.

Personal circumstances

20 You are now aged 45 and were 42 at the time of the offending.

21You were raised in the eastern suburbs of Melbourne and have four siblings. You are close to your mother, who you have lived with whilst on bail for these offences. You have three adult children from a long relationship with their mother. You completed Year 10 at Croydon Community College, and you have had a very strong employment history. You were a user of amphetamine from age 17 and started using methamphetamine daily from your late 20s until your remand. You were a regular user of cannabis from age 16. You are approved for medicinal cannabis but have not yet been dispensed it. I was told that you have the support of your family and friends and your family was present in court to support you and are here today.

22I have had regard to the contents of a psychological report from Dr Cidoni (Exhibit 1), which the contents were not challenged by the prosecution. Dr Cidoni opined that you have suffered from significant polysubstance use, a major depressive disorder and Post Traumatic Stress Disorder (PTSD). He opined that the PTSD has been longstanding and stemmed from an incident when you were 15 and you punched a male, who had just been assaulted by another person, and who later died. It is clear from the sentencing remarks for that offence[1] that you suffered significant guilt, remorse and fear following the incident, and you required psychiatric treatment for several years.

[1] DPP v Allen [1998] VicSC 251 (18 May 1998)

23Dr Cidoni opined that whilst you had difficulty articulating your symptoms, you reported that you have continued to be affected by the events of your youth. You said you experienced flashbacks daily, nightmares that ceased with cannabis use, and recurrent anxiety about your children being harmed. You said you had visited the site where the victim died each year on the anniversary of his death until you were placed on a curfew. Dr Cidoni stated that he considered your PTSD is highly likely to persist with you continuing to re-experience trauma.

24In terms of your major depressive disorder, your GP diagnosed this condition last year and she said you have had little effective treatment for this. Dr Cidoni considered your depressive disorder to have been longstanding, and you have recently had a very lengthy episode of at least 12 months which has been resistant to treatment, and which has been perpetuated by your current legal proceedings and by your great concern for your elderly dog who is in poor health. Dr Cidoni concluded that your depression will be likely to significantly affect you in the future in terms of social withdrawal, suicidal ideation and low mood. 

25 You also reported to Dr Cidoni that your father was physically and verbally abusive towards you at least three to four times per week growing up, and you said that was the reason you are the way you are now. You also said that you were sexually abused between the ages of eight and 15 by a man at your school. This disclosure was not explored or discussed in any further detail.

26Your counsel accepted that the principles espoused in limbs 1 to 4 of Verdins were not applicable in your case. Whilst your long-standing PTSD, major depression and drug use contextualise your offending, and I take these matters into account in a general sense, they are however of little if any mitigatory relevance. There is no suggestion that you were anything other than fully aware of the wrongfulness of your conduct, and whilst your drug use may have disinhibited you, its primary relevance relates to your rehabilitation prospects, and I will deal with these shortly.

27 I have also considered Dr Cidoni's opinion that your offending occurred only '…in a particular context', that is, in an intimate relationship that was “problematic”. Again, he opined that your mental health issues and substance abuse made it harder for you to cope as well as to respond appropriately to what you saw as problems in the relationship. According to Dr Cidoni, your risk of reoffending would thus be connected to you developing a new intimate relationship that was “problematic”.

28I accept that your risk of reoffending would be connected to your continued use of methamphetamine and your untreated mental health issues, but I am hesitant also to link it to you being in a “problematic relationship”. All relationships undergo problems, and this link fails to consider your attitude towards the victim. As the Court stated in Marrah v The Queen[2]:

'Offending of this nature is too often perpetrated by men who response to difficulties in a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable.'

29 Further, as stated in Kalala v The Queen,[3] a perception of infidelity as a motivation or justification for deliberate violent offending against women “…is expressive of the very worst of male attitudes towards women…” and must involve a high level of moral culpability for the offending.

30 In addition, your attitude towards CG cannot be seen as a factor that had no relationship to your offending. You have labelled her as a liar who cheated on you and who manipulated you from the outset of your relationship. You have consistently blamed her for your actions. As recently as October 2024, when you were assessed by Dr Cidoni, you were still labelling the victim a manipulative, and in both your police interviews, you sought to blame her, to accuse her of various transgressions, including infidelity, and to deny any responsibility for the emotional, physical and financial harm you caused her.

31 I accept the opinion of Dr Cidoni that imprisonment is likely to be more onerous on you than another person without your mental health conditions and your mental health is highly likely to deteriorate in a custodial environment given your major depression, your PTSD symptoms, the absence of support from your mother and your concern about your dog. I will accordingly moderate the sentence I impose to reflect the application of limbs 5 and 6 of Verdins.

[2] [2014] VSCA 199, [25]

[3] [2017] VSCA 223, [62].

28As noted earlier, you were convicted in May 1998 for recklessly cause serious injury and sentenced to a term of 18 months' imprisonment, wholly suspended, when you were 17. I have had regard to this incident as a factor of relevance only to your present psychological make-up given it was committed when you were a child of 15, and it occurred a very long time ago. More recently, you have a prior conviction for minor drug possession offences and findings of guilt in respect of possessing a controlled weapon and other minor drug offences, but these are relatively dated and of no real weight in the sentencing exercise. You have no prior convictions for family violence, and you have no subsequent or outstanding matters.

Sentencing principles and considerations

29 In sentencing you, I have had regard to the purposes for which a court may impose sentence set out in s5 of the Sentencing Act 1991 (Vic), and to the matters outlined in s5(2), which include the maximum penalty for the offence, the nature and gravity of the offence, the offender's culpability and degree of responsibility for the offence, the impact of the offending on any victim, an offender's prior character, and the presence of any aggravating or mitigating factors or other relevant circumstances.

30 I also have regard to the fact that the authorities make it abundantly clear that general deterrence is of fundamental significance in sentencing for offending involving family violence.[4] It has often been stated that the key to protecting victims of family violence is to deter the conduct '…by sending an unequivocal message to would-be perpetrators…that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict such harm'[5].

[4] Pasinis v The Queen [2014] VSCA 97, [57]; Kalala v The Queen [2017] VSCA 223; DPP v Reynolds (a pseudonym) [2022] VSCA 263.

[5] Pasinis v The Queen [2014] VSCA 97, [57].

31 Because women who are ultimately killed by their domestic partner have often experienced repeated previous physical assaults, specific deterrence also looms large in the sentencing exercise.[6] In your case, I accept that you have no prior convictions for family violence, and you have said that you are committed to dealing with your mental health and substance abuse issues, which marginally reduces the weight to be given to specific deterrence. It is not extinguished however given the relatively prolonged nature and extent of your offending.

[6] Ibid

32 Sentencing principles of denunciation, just punishment and community protection are also factors that must be prominent in the sentencing exercise.[7]

[7] DPP v Reynolds (a pseudonym) [2022] VSCA 263, [77].

33It is also clear that the effects of family violence are not just physical, but can include long-lasting psychological trauma, which may include serious financial stress due to the psychological effects of the violence leading to an inability to undertake employment.[8] The victim impact statement of CG clearly reflects these effects.

[8] Ibid, [53]-[54]; Kalala v The Queen [2017] VSCA 223.

34I accept that you pleaded guilty to the charge at the first reasonable opportunity. Your plea warrants a clear reduction in sentence to reflect its utilitarian value in saving the community the time and expense of a trial and witnesses, especially the victim, from having to give evidence, and to reflect its demonstration of acceptance of responsibility, and willingness to facilitate the course of justice.

35 Your plea of itself also demonstrates a degree of remorse. I am not however satisfied that you have demonstrated any remorse in addition to the bare fact of your plea. Whilst Dr Cidoni noted that you said that you regretted the offending, and that you were motivated to address your mental health issues, you told him that you had been manipulated by the victim, and she was a liar, including telling you she was pregnant so you would go out with her. In my view any regret you do have for your offending is because of its legal effects on you. You have consistently labelled the victim a manipulative liar. You blamed her for your violent actions, and you sought to justify those on the basis that the victim had physically attacked you or because you believed that she had cheated on you. The contents of your interviews with police also do not reveal any acceptance of responsibility or remorse for your actions.

36 It was submitted on your behalf that a substantial delay between the offending and you being sentenced is a matter that should moderate the sentence I impose on you. I accept that submission. The delay between the offending in late 2021 and 2022, and you being sentenced in 2025, was not attributable to you. During the intervening period you have not reoffended, which is to your credit, and you have had the stress of this matter being unresolved, and you not knowing what will happen to you, for some time.

37 As to your prospects of rehabilitation, you have had no serious prior convictions since you were a very young man, you have no subsequent or pending matters, you have family support, you have pleaded guilty and accepted responsibility for your actions. You have however displayed no real insight into the harm you caused the victim, and you have sought to blame her for your offending at almost every opportunity. Your offending was not isolated but relatively protracted, involving several incidents. I am cognisant of the need to promote your rehabilitation in the interests of the community, however, the sentencing purpose of rehabilitation cannot be permitted to overwhelm the sentencing exercise in cases of serious family violence where deterrence and punishment are principles of paramount importance[9].

[9] DPP v Reynolds (a pseudonym) [2022] VSCA 263, [95].

38Your prospects of rehabilitation must be assessed as guarded at present. Until you receive treatment for your longstanding mental illnesses, cease using methamphetamines and undertake some behavioural change programs to address your inability to properly control your emotions and your use of violence - including learning that it is never appropriate to inflict violence against women even if a relationship is 'problematic' - you cannot be viewed to be a low risk of reoffending.

Offence gravity of the offending

39As your counsel sensibly accepted, your offending is clearly serious. The offences pertaining to CG all carry not insignificant maximum penalties. Your behaviour was very grave. On one occasion, you locked CG in a storage unit for 45 minutes. You used your power to isolate her and to stop her free movement, and it would have been terrifying for her not knowing what would occur on her release. When you did release her, you loaded a firearm, held it to her neck and ordered her to pull the trigger. Your conduct can only have terrified your largely defenceless victim.

40You then choked CG into a state of unconsciousness. The authorities make it clear that this behaviour is very grave. As stated in DPP v Reynolds (a pseudonym)[10]:

'Choking another person into unconsciousness is a pernicious and dangerous form of violence. The risk which such conduct entails cannot be ignored when assessing its gravity. It is potentially life-threatening. Within the context of family violence, choking represents a chilling exploitation of physical power or dominance.'

[10] [2022] VSCA 263, [80].

41On another separate occasion you assaulted CG causing bruising to her arm, and putting your hand mouth so she could not breathe, and you threatened to inflict serious injury to her. You also punched a hole in a door in anger when you were verbally abusing CG at the unit. Your actions against CG have caused her significant psychological and physical harm. You were in a relationship with her where she was entitled to feel safe and not constantly fearful of you or the subject of violence by you.

42In terms of your additional offending unrelated to CG, I consider the drug possession offences to be of less significance to the sentencing exercise, as well as the firearm offences.

Submissions on sentence

43Your counsel submitted that in view of your longstanding major depressive disorder, your limited prior convictions and absence of subsequent matters and your plea of guilty, a term of imprisonment not exceeding the 48 days you have already served in custody, combined with a requirement to complete a community correction order on release, was an appropriate sentence.

44The prosecution submitted that your offending was way too serious to be dealt with in the manner suggested by your counsel and submitted that a sentence should be imposed which includes a non-parole period.

Totality and cumulation/concurrency

46I consider that there should be a modest degree of cumulation between the sentences imposed to reflect the separate instances of serious offending and the distinct offence types. Whilst some of the offences occurred as part of what was an ongoing violent episode or enterprise, the conduct involved in each separate offence added materially to the overall criminality of the episode, the offences have different elements, are directed at different vices and they warrant separate punishment. I am mindful of the principles of totality and proportionality in directing the degree of cumulation to be imposed.

Sentence

47I have considered the objective features of your offending, along with your subjective mitigating factors and the applicable sentencing principles and considerations.  In my view a combination sentence, even with a lengthier period of imprisonment than 48 days would be wholly inadequate to reflect the very serious and protracted nature of your offending and would not give due weight to the principles of general deterrence, denunciation and just punishment.  Mr Allen, could you please stand?

48On Charge 4, you are convicted and sentenced to two and a half years' imprisonment (base sentence). I direct that this sentence commences today, 23 April 2025.

49On Charge 1, you are convicted and sentenced to three months' imprisonment. I direct that one month of this sentence be served cumulatively on the sentence on Charge 4.

50On Charge 2, you are convicted and sentenced to four months' imprisonment. I direct that one month of this sentence be served cumulatively on the sentence on Charge 1.

51On Charge 3, you are convicted and sentenced to 12 months' imprisonment. I direct that three months of this sentence be served cumulatively on the sentence on Charge 2.

52On Charge 5, you are convicted and sentenced to two years' imprisonment. I direct that eight months of this sentence be served cumulatively on the sentence on Charge 3.

53 On Charge 6, you are convicted and sentenced to six months' imprisonment. I direct that one month of this sentence be served cumulatively on the sentence on Charge 5.

54On Charge 7, you are convicted and sentenced to three months' imprisonment. I direct that one month of this sentence be served cumulatively on the sentence on Charge 6.

55On Charge 8, you are convicted and fined $500.

56On Charge 9, you are convicted and fined $1,000.

58 On Charge 10, you are convicted and fined $500.

59On summary Charges 10 and 16 you are convicted and fined an aggregate of $250.

60In terms of the sentence that I have imposed, that makes a total effective sentence of three years and nine months' imprisonment.

61 I order that you serve a non-parole period of two years' imprisonment before being eligible for release on parole. 

62 I direct pursuant to s18E of the Sentencing Act 1991 (Vic) that 48 days' imprisonment be declared as having been served by way of pre-sentence detention.

63 Pursuant to s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a total effective head sentence of five years and three months' imprisonment with a non-parole period of three years and three months.

Ancillary Orders

64.I make the forfeiture and disposal orders are made as sought by the Prosecution.

65.MR TAYLOR:  No issue with that, Your Honour.

66.HER HONOUR:  Thank you, could you remove Mr Allen please?  Thank you for your assistance.

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