Director of Public Prosecutions v Allen

[2023] VCC 2384

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00477

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYDEN ALLEN

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JUDGE:	Her Honour Judge Ellis
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2023 and 4 December 2023
DATE OF SENTENCE:	15 December 2023
CASE MAY BE CITED AS:	DPP v Allen
MEDIUM NEUTRAL CITATION:	[2023] VCC 2384

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence- one charge of threatening to assault with intent to commit an indictable offence- one charge of attempted armed robbery- one charge of theft- two related summary charges- plea of guilty- youthful offender-

Legislation Cited:      Crimes Act 1958, Bail Act 197, Control of Weapons Act 1990, Sentencing Act 1991

Cases Cited:R vVerdins (2007) 16 VR 269, Mills v R [1998] 4 VR 235, Azzopardi v R (2011) 35 VR 43, Worboyes v The Queen [2021] VSCA 169, Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308

Sentence:                 Community Correction Order for a period of two years, with 80 hours of unpaid community work.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr. E. Dober	Office of Public Prosecutions
For the Accused	Mr. H. Moodie	Stary Norton Halphen

HER HONOUR:

1Jayden Allen, you have pleaded guilty to:

·one charge of threatening to assault with intent to commit an indictable offence contrary to s31(1)(a) of the Crimes Act 1958, which carries a maximum penalty of five years' imprisonment;

·one charge of attempted armed robbery contrary to s321M and s75A of the Crimes Act 1958, which carries a maximum penalty of 20 years’ imprisonment; and

·one charge of theft contrary to s74 of the Crimes Act 1958, which carries a maximum penalty of 10 years’ imprisonment.

2Additionally, you have also pleaded guilty to two summary offences and you have agreed to their transfer to this Court, namely:

·committing an indictable offence whilst on bail contrary to s30B of the Bail Act 1977, which carries a maximum penalty of 30 penalty units or three months’ imprisonment; and

·possess dangerous article contrary to s7(1) of the Control of Weapons Act 1990, which carries a maximum penalty of 60 penalty units or six months' imprisonment.

Circumstances of the Offending

3At the time of the offending you were 18 years of age.  Your offending involved two co-offenders, Noah Parsons who was aged 20 and another offender who was aged 15.  On 18 October 2022 at approximately 8.30 pm, the victim Ziming Gao left his home for a run.  At approximately 10.30pm he reached Williamsons Road near the Westfield Shopping Centre in Doncaster.

4You, and your co-offenders were standing near the bus stop next to the shopping centre.  You had a spanner which you had previously taken out of a plastic bag and placed on the ground next to you, and then returned to your bag.  You were wearing a black jumper and shorts.  As Mr. Gao walked past the bus stop, your 15 year old co‑offender yelled, 'Hey, do you have any money, give me money'.  Mr. Gao replied, 'I don’t have any money' to which your co-offender replied, 'fuck off'. 

5Mr. Gao continued walking, and you and the 15 year old co-offender began following him along Williamsons Road towards Doncaster Road.  You shouted, 'Hey, give me money, hurry up, give me money'.  Mr. Gao turned around and saw you following him waving a silver wrench in the air which was approximately 30 centimetres (Charge 1).  Mr. Gao told you he did not have any money and began to run away along Doncaster Road until he noticed that he was no longer being followed.  He called Triple 0 to report the incident. Mr. Gao was not known to you or your co‑offenders.

6A few hours later at 12.13 am on 19 October you and your co-offenders entered the Coles Express at 555 Doncaster Road, Doncaster.  You were wearing a Halloween clown mask; a black hoodie and you were holding a large spanner or wrench.  Your 15 year old co-offender approached the front counter and asked the attendant Peter Battistel for JP cigarettes.  You followed behind and said, 'I want cigarettes' and waved the spanner around hitting the counter gum display with the spanner, causing it to break (Charge 2).

7Mr. Battistel retreated to the office, locked the door and activated the duress alarm.  You and your co-offenders went to the exit door where a security guard was standing, and you pushed past him to get out of the building.  There were hot and cold food cabinets inside the store next to the door, and you and the co-offenders took a number of food items.  You stole four sandwiches valued at $24 (Charge 3).

8The three of you then left the store and walked down Doncaster Road.  At approximately 1.35 am you attended the Shoppingtown Hotel in Doncaster and a few hours later police attended where you were all located playing gaming machines.  You were all arrested and taken to Box Hill police station for interview.  The spanner or wrench was not recovered.  The summary charge, Charge 12, relates to your possession of this item.

Prior Criminal History

9You have admitted one prior criminal matter. On 2 March 2022, you were sentenced to a good behaviour bond in the amount of $500 for robbery without conviction by the Ringwood Children’s Court.  This offending breached that order.  At the time of the offending you were on bail for a charge of unlawful assault which had been granted by the Ringwood Children’s Court and that constitutes Summary Charge 3.

10You have also since this offending, been sentenced for offences which occurred between November 2021 and July 2022.  After engaging with Youth Justice and participating in a group conference you received a good behaviour bond without conviction.

11There is no pre-sentence detention. 

12No victim impact statements have been tendered.

Co-accused

13Noah Parsons was dealt with by the Magistrates’ Court on 31 March 2023.  He pleaded guilty to theft and other charges including possess prohibited weapon in licenced premises and possess house breaking implement. He received an adjourned undertaking.

14The 15 year old co-offender was dealt with by the Children’s Court.  He pleaded guilty to handle stolen goods, possess controlled weapon without excuse, committing an indictable offence whilst on bail and theft.  He was sentenced without conviction to a probation order for 12 months with conditions relating to drug and alcohol counselling. 

15The question of parity has some relevance but is of limited weight in this case given that your co-offenders were charged with different offences.  Neither of them were charged with attempted armed robbery. 

16You pleaded guilty at a committal mention on 28 March 2023.  A plea hearing listed in the County Court earlier this year was adjourned to enable psychological material to be obtained.

Personal Circumstances

17You were born in July 2004 in Melbourne and you are now 19 years old.  You are the second of four children. Your childhood was a difficult one.  You recall your father being drug affected and you witnessed many arguments between your parents, and family violence.  Your father moved out of the family home when you were around the age of five and has reportedly been in and out of custody since then.  You last saw your father two years ago.

18You attended three different primary schools due to family relocation and bullying.  You were supported by an integration aide for most of your primary school and you would often get into trouble for fighting with others.  This continued throughout your secondary school years, and you considered yourself to be an average student.  You were reportedly expelled from secondary school as a result of your behaviour, completing Year 10.  You received TAFE Certificates I and II in Building Construction.

19You were diagnosed with Autism Spectrum Disorder when you were five, experiencing moderate to severe language delays at the time.  You first consumed alcohol at around the age of 13 and began using heavily between the ages of 15 and 18.  You were also using ice most days of the week which you ceased in mid‑2022.  You have since reportedly reduced your alcohol consumption. 

20According to submissions prepared by your counsel, you experienced a period of instability in 2021 and 2022 culminating in the offences before the Court.  You were using drugs, you were hospitalised threatening self-harm on several occasions, you were unemployed and you were often without stable accommodation.  Your current circumstances are described as being markedly different from those that were in existence at the time of the offending.  You now come before the Court as a young man who is abstinent from drugs and alcohol with stable accommodation, employment and family support.

21You have returned to live in your family home with your mother and siblings and for the past five months you have been employed in landscaping, initially on a casual basis.  You have also become a recent participant in the NDIS receiving support worker assistance one day per week.

22A neuropsychological report prepared by Martin Jackson sets out your psychiatric history and previous assessments, noting that you have reported a recent history of depression and anxiety and have been admitted to hospital as a consequence of suicidal ideation and self-harm.  It appears that this has often occurred in the context of alcohol and ice use.

23A character reference was prepared by your mother.  She notes that over the past few months you have made some incredible changes in your life, particularly since your detoxification in January. She reports that you are regularly seeing your doctor and being treated for depression and anxiety and that you engage with your drug and alcohol counsellor each week.  She referred to your childhood diagnosis of autism and the difficulties that you experienced growing up.  She says that when you are not under the influence of substances you are very well mannered and considerate and you will help anyone and put others first.  You reportedly have a great relationship with your brothers and you are close with the rest of the family.

24According to your mother, you have discussed your behaviour and indicated that you are remorseful for what you have done and that you have learnt from this experience.  She believes that you had become involved with a group of peers and lost your sense of self during this time and, as a result, the family reached out to Family Services Anglicare for some help and guidance.

25A letter was also received from Mr. Joel Morrison who is a Senior Youth and Families Alcohol and Drug Clinician from Anglicare.  He notes that he has been supporting you since April 2022, and that you have been engaging positively throughout this process.  He meets with you weekly and he has found you to be reliable, punctual and polite.  He notes that in November last year you were admitted to YSAS alcohol and other drugs withdrawal unit in Glen Iris on your own undertaking and that you completed a seven day admission.  He also notes your further admission into YSAS Fitzroy Youth Detox on 11 January 2023 for a week.  Mr. Morrison notes that you have been placed on pharmacotherapy medication Naltrexone through your general practitioner.  He also notes that you are working three to four days a week.

26Mr. Morrison notes the considerable support that your mother has given you and that you now reportedly attend the gym daily and you are working towards improving your mental health.

27I have also received a neuropsychological report from Dr. Kelly Sinclair.  You do not meet the criteria for neurodevelopmental disorder or intellectual disability but she notes that your cognitive profile shows impairment in certain areas including verbal memory, reasoning and verbally based executive skills.  Your counsel does not submit that your longstanding autism and cognitive weaknesses enliven limbs 1 to 4 of the considerations in R vVerdins[1] but they do provide some context for your offending.

[1] (2007) 16 VR 269 (‘Verdins’).

28It is submitted that limbs 5 and 6 of Verdins’ are enlivened given Dr. Sinclair’s opinion that from a cognitive perspective, your verbal based weaknesses will make aspects of imprisonment more burdensome for you as compared with others as you may be slower to initially adapt to new routines, you may find it harder than your peers to understand details of day to day conversations, and you may be more susceptible to negative influences.  It would be harder for you to follow verbal instructions because of these weaknesses which may make you appear non‑compliant and place you at risk of transgressions.

29The prosecution submits that your cognitive limitations or weakness do not amount to a mental impairment and therefore limbs 5 and 6 do not apply, but Mr. Dober submits that I can still take into account the effect of your cognitive limitations in a custodial environment, in a general way.

30Although I am inclined to agree with the prosecution that these cognitive limitations or weaknesses do not amount to a mental impairment, I do consider that they are very relevant to the overall circumstances of your offending and the way in which they may affect any time you might spend in custody. I am also satisfied that the custodial environment may not allow you to continue to receive assistance for your depression and anxiety as effectively and this could affect your experience of imprisonment should that be the order of the court. I also take into account Dr. Sinclair’s opinion that you may be susceptible to negative influences, which I consider would be counterproductive to your rehabilitation.

Youth

31You are currently 19 years of age and, by definition, you are a young offender.  Your youth enlivens the principles enunciated in Mills v R.[2]  Accordingly, your rehabilitation assumes primacy in the sentencing process.  The community has a very strong interest in the rehabilitation of all offenders, but especially of young offenders.

[2] [1998] 4 VR 235.

32As Redlich JA recognised in Azzopardi v R[3] young offenders ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

Secondly, courts ‘recognise the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.’[4]

[3] (2011) 35 VR 43 at [34]-[35].

[4] Ibid.

33As was emphasised in that case, rehabilitation of a young offender is in the community’s interests. Having said that, the courts are also less tolerant of young people committing violent offences.

34Furthermore, as was discussed in Azzopardi, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation, given potential exposure to corrupting influences.

35I have taken into account your age.

Plea of Guilty

36You entered a plea of guilty at an early opportunity. You have accepted responsibility for your conduct. Your plea is of considerable utilitarian value.  You have spared the community the significant expense of a trial and further, your plea demonstrates a willingness to facilitate the course of justice.  It is also evidence of remorse.

37In the context of COVID-19 and the backlog associated with the pandemic, pleas of guilty have attracted an appreciable discount in sentence, in accordance with Worboyes v The Queen.[5] Whilst that backlog has now been reduced to a pre‑COVID standard, your decision to plead guilty should be considered in light of that backlog. You entered a guilty plea in March this year, prior to the court undertaking an assessment of the backlog in trials. By pleading guilty this has ensured a reduction in trial work and accordingly, I propose to take into account that your plea of guilty occurred during the pandemic.

[5] [2021] VSCA 169.

Prospects of Rehabilitation

38I accept that you are remorseful for this offending. You told Martin Jackson that you felt bad and you recognised that the victims would have felt scared. You said that they did not deserve what you did. You have also recognised the role that alcohol and drugs have played in your offending. You were perhaps less forthcoming with Corrections but I take into account what you said to Martin Jackson.  You were also proving that you are remorseful for your offending by virtue of the application that you have made to your own rehabilitation.  You have been taking all the right steps towards self-improvement having engaged in counselling and drug and alcohol treatment and given the support that you have from both from Mr. Morrison and also your family.

39In light of that I consider that you have very good prospects of rehabilitation but this will all be contingent upon you continuing to engage in the supports offered to you and remaining abstinent from drugs.

Nature and Gravity of the Offending

40The second incident is a serious example of an attempted armed robbery.  You were operating with two co-offenders in the early hours of the morning.  You were wearing a Halloween clown mask which shows a degree of premeditation.  As the prosecution submits, it is also a reflection of a desire to make yourself more intimidating, which is an aggravating feature of the offending.  You carried and used a wrench and broke a display.  The threat of violence that you posed was a very real one.

41Your offending in relation to Mr. Gao was also serious.  People should be free to jog or move about the community without being followed by somebody carrying an item in a menacing and threatening manner.

Sentencing Principles

42The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In determining an appropriate sentence, I must have regard to these sentencing principles and I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence including the gravity of the offending, your culpability and your personal circumstances.

43Although your rehabilitation assumes primacy, I must also give weight to general deterrence. Other members of the community must understand that the courts will not tolerate this sort of conduct. You too need to be deterred from engaging in similar behaviour in the future.

Sentencing Submissions

44Your counsel submits that a Community Correction Order would be appropriate in all of the circumstances of the offending having regard to your age, prospects of rehabilitation, your limited prior history and your family support. 

45The prosecution submits that a combination sentence is the appropriate sentence, but alternatively an appropriately punitive Community Correction Order is not said to be manifestly inadequate if it is not paired with an immediate custodial sentence.

46I have had you assessed for a community correction order.  You have been assessed as suitable. Corrections consider that you are a medium risk of re‑offending and a number of conditions are recommended including supervision to allow you to engage in appropriate case management strategies to explore further insight into your offending, and drug and alcohol treatment conditions are also recommended noting your longstanding history with methamphetamine and alcohol consumption. 

Imprisonment as Last Resort

47I have given the submissions of both parties careful consideration. Your offending, as I said, was serious and that you breached a good behaviour bond is aggravating However I must weigh this with your age, your early plea of guilty and the efforts that you have made at rehabilitation, coupled with your supports.

48The starting point is that the law says that a court must always regard imprisonment as a disposition of last resort and may consider, even in cases of serious offences, that a community corrections order is a punitive disposition which is capable of addressing all relevant sentencing considerations. As the Court of Appeal noted in Boulton v The Queen,[6]  a community correction order may be suitable in such cases which might previously have attracted a medium term of imprisonment.

[6] [2014] VSCA 342; (2014) 46 VR 308. 

49Overall, having considered all of the material before me, I have concluded that ultimately, the community is best served in this case by having you sentenced in a way that does not involve immediate imprisonment having regard to all of the matters that I have noted. 

Sentence

50On Charges 1, 2 and 3, you are convicted and sentenced to a Community Correction Order.

51On the two summary charges, you will also be placed on a community correction order.

52The duration of the order will be 2 years. There will be a number of conditions attached to the order:

·You are to be under the supervision of Corrections for a period of 2 years.

·You must undergo treatment and rehabilitation with respect to drugs and alcohol.

·You must undertake 80 hours of unpaid community work. I am going to allow that the hours of treatment and rehabilitation can count toward the entirety of the work order. That is, instead of doing the work the hours that you spend doing treatment and rehabilitation can count towards the community work.

53There are also a number of core conditions attached to a Community Correction Order. I am going to go through them now.

·You must not commit any other offence that is punishable by imprisonment during the 2 year period.

·You must comply with any and all obligations and requirements prescribed.

·You must report to and receive visits from Corrections during the period of the order.

·You must report to the nearest Community Correction Centre, which I believe is in Lilydale, within two clear working days from today. I strongly recommend you make contact with them today.

·You must let a Community Corrections Officer know within two working days of a change of address or employment.

·You must not leave Victoria without first getting permission.

·You must obey all lawful instructions and directions from Corrections.

54You must comply with the conditions of the order. If you do not comply with the conditions, if you decide not to do any of the conditions that are required of you, if you commit further offences then you will likely find yourself back before this court on a breach. If that was the case, I would need to resentence you for the offending, and it is unlikely that I would give you another community corrections order and it is also likely that there would be a penalty for the breach itself.  My staff are going to print off the conditions to get you to read through them.  Mr Moody is welcome to approach the dock to assist you.  You need to then indicate that you have understood the conditions and that you agree to abide by those. 

S 6AAA

55Mr Allen, I indicate pursuant to s 6AAA of the Sentencing Act, that but for your plea of guilty, that is, had you not pleaded guilty but if you had been found guilty following a trial, I would have sentenced you to 6 months' imprisonment with a community correction order.

56I also make the order for disposal of the items sought, which I understand is by consent.

57Mr Allen, you have very narrowly avoided going to gaol today. The court has given you an opportunity to engage in a community corrections order and the fact that I have done so is really because of the work that you have been doing over the course of this year to improve yourself, and with the support of your mother and Mr Morrison, you have done very well. You must continue to work with those around you in the same way or you will find yourself before the courts again.

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