Director of Public Prosecutions v Allen

[2020] VCC 551

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

AT GEELONG
CRIMINAL JURISDICTION

CR 19-02287

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADAM ALLEN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	1 May 2020
DATE OF SENTENCE:	1 May 2020
CASE MAY BE CITED AS:	DPP v Allen
MEDIUM NEUTRAL CITATION:	[2020] VCC 551

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms W. Gibbons	Dribbin & Brown Criminal Lawyers

HIS HONOUR:

1As has been said by judges or observed many, many times by the courts the intersection or the clash of mental illness in the criminal justice system creates enormous difficulties as to what is a just and appropriate sentence.

2When serious crimes are committed causing fear to victims then there is an understandable expectation of stern punishment.  However, when the offender was suffering and continues to suffer life-long serious mental illness fairness requires a degree of mercy and emphasis upon trying to get the offender properly treated.

3But again that said, an offender's enduring mental illness raises real concerns about how to protect the public from his offending behaviour.  In this case you, Adam Allen, have had a life-long mental illness, certainly since your adolescence.

4You have a diagnosis of paranoid schizophrenia.  It is treatment resistant.  You do not assist things by indulging in the use of illicit drugs and by not complying with taking your medication that can ameliorate your behaviours.

5As a consequence of your drug addiction and mental illness you have no family or little family and no other supports.  You have been on your own and homeless for a good deal of your adult life, often in the streets of Geelong.

6That is when you are not in prison and before that youth justice centres.  Incarceration has occurred too many times.  Your personal circumstances are bleak and I will speak briefly on them shortly.  However, again at age 33 you are in prison and again you are to be sentenced for offences committed by and large in the streets or in public places in Geelong and committed when you are far from being mentally stable.

7In November 2017 you were in the Norlane area.  The victim was a perfect stranger to you and had just left the nearby pharmacy where she worked.  You approached her and spoke to her all the while grabbing your crotch in a sexual manner.  You suggested she come with you and have sex.  You got closer and closer to her.

8In utter fear the victim ran back into the pharmacy.  Her work colleagues came to her aid.  You left the area.  The offence you committed and have pleaded guilty to is a new offence called sexual activity directed at another person.  It is an offence with a maximum term of five years' imprisonment that recognises that frightening and disgusting sexual behaviours in public must be condemned and punished.

9The impact on your victim was very significant indeed.  She spoke in a victim impact statement that, 'It has impacted my life significantly, mentally and emotionally'.  She spoke of feeling unable to continue with her much loved job in the pharmacy.  This caused her an immediate and considerable financial shock to her family.

10Her sleep was much affected with consequential difficulties in mood and emotion.  She has been unable to socialise and engage with other people and isolates herself at home.  All things combined resulted in her marriage breakdown in 2018.  She struggles to cope with things.  It has exacerbated her anxiety and depression.

11A week or so later after that offending you were arrested on separate matters and remanded.  You were sentenced by a magistrate to 12 months' imprisonment.  You were released some time at the end of - that is in late November or December 2018 and within days you committed the same crime of sexual activity directed to another person.

12You were at the Eastern Beach pool.  A group of young women were there enjoying the evening.  One went in for a swim.  You went to the edge of the pool, stared at her and put your hands into your pants commencing to masturbate.  You followed her, preventing her getting out of the pool.

13You were about a metre from her.  Her friends became very concerned and came towards her and yelled at you.  This enabled the victim to get out of the pool.  You continued to masturbate and thrust your pelvis towards the group.  As they rushed to get away the first victim felt you touch her and touch and thrust towards her.

14The police were called as you left and went into the central business area of Geelong where you still behaved inappropriately to a young woman there.  The three young women at Eastern Beach pool bravely followed you in order to ensure that others were kept safe and the police found you.

15They gave genuine protection to the young woman that you approached in Malop Street and should be commended for this behaviour.  The police arrested you there but you were unfit to be interviewed due to your mental illness.  A week later on 19 December you shoplifted a can of drink from the
7-Eleven store.  You were again arrested and bailed.

16More seriously on 27 December 2018 you were at the Emergency Department at the Geelong Hospital.  You were there because of sunburn.  A triage nurse placed you in a waiting room.  A doctor came and put cream on the sunburn and gave you a Panadol.  The triage nurse, completely appropriately and professionally, told you that the treatment had concluded and that you were to leave.

17Your response was to threaten to kill her.  You repeated your threat a number of times as your behaviour became more erratic and frightening.  You were arrested at the hospital.  You have been on remand since 27 December 2018.  Your time on remand has seen your mental health decline.

18You were initially found unfit to stand trial thus the charges were uplifted to the County Court.  You deteriorated to the point that you were moved from the prison to the Thomas Embling Hospital.  This period of time was from
27 March 2019 to 9 July 2019.

19It was in fact your second admission to that acute forensic mental health facility.  You were there earlier from October 2010 to July 2011.  The report of Dr Jackson, a psychiatrist at Forensicare, indicated that she had extensively reviewed your past psychiatric history.  I will not touch on all of it but she said this at paragraph 46:

'With respect to his psychiatric history Forensicare records note Mr Allen was diagnosed with attention deficit hyperactivity disorder in 1991 for which he received methylphenidate treatment and diagnosed with schizophrenia in 2004.  Prior to his most recent admission to Thomas Embling Hospital he had been admitted to psychiatric inpatient units 32 times.  He had received treatment with numerous medications including Clozapine, and electroconvulsive therapy which are treatments reserved for severe and/or treatment resistant illness.  His presentation has recurrently been complicated by polysubstance abuse and he was also documented as having sought drugs from medical services for the purposes of abuse.  Additionally, Mr Allen's avoidance of engaging with mental health services appears to have been a significant impediment resulting in loss of follow up and cessation of treatment'.

20You were assessed earlier on 19 June 2019 while in the acute unit at Thomas Embling Hospital by Dr Zimmerman, consultant psychiatrist, principally to determine your fitness to stand trial.  The assessment was difficult given your paranoia about Dr Zimmerman's role and that you were heavily sedated - also because of the heavily sedating effects of your medication.

21It was noted that during your time in prison on remand prior to coming to Thomas Embling you continued to display sexualised behaviours towards female staff.  You were then brought to Thomas Embling.  Dr Zimmerman wrote you were brought there because of deteriorating mental state, sexually disinhibited behaviours and disorganised thoughts.

'He exhibited loosening of association, tangentiality, persecutory beliefs that those interviewing him were playing mind games and an incongruous and labile effect'.

22Dr Zimmerman was clear that you have a major mental illness, namely paranoid schizophrenia.  She felt that you were unfit at the time but maybe you would become fit which has indeed become the position.  She wrote the following in answer to questions put to her by your instructing solicitors.  She said at paragraph 39(b):

'When affected by his psychosis Mr Allen experienced symptoms at the severe end of the spectrum such that he has required over 20 inpatient admissions, treatment as an involuntary patient, oral and depo medications, a course of ECT and is currently receiving doses of medication that render him over-sedated.  I note his homelessness, lack of insight or compliance and substance misuse has made illness more difficult to treat.  When actively psychotic his capacity to think through the consequence of his behaviour, to control impulses or to make calm, rational choices would be impaired.  Mr Allen was off his anti-psychotic and mood stabilising treatment at the time of the offending'.

23When examined by Dr Jackson later, that is on 14 January 2020, you were at that time at Port Phillip Prison.  Although she found that you were fit you were still affected by your enduring mental illness.  She wrote the following and I will precise a number of matters that she wrote.  That there were some indications of grandiose cognition in your description of your fraternity with gangsters, your past wealth and your concern for those experiencing misfortune, your music and rapping abilities and your family's good looks and your smartness and success with women.

24She went on to say that there were occasional hints of persecutory ideation.  There was also you alluded to experiences related to watching television and suggesting delusions of reference.  That is that you thought the contents of the television program were messages to you about how and when you would be released and how you should conduct yourself.

25You had when you arrived at Port Phillip believed that your thoughts were shared and that remarks that were being made were made knowing your thoughts.  You said to her that you had experienced auditory hallucinations when angry but denied hearing any voices on the day of the interview.

26She said that your insight regarding your symptoms was partial.  You had already declared that you suffered from a mental illness but you were unclear about the symptoms you experienced.  You also made some remarks normalising your psychotic symptoms such as a lot of gangsters hear voices.

27Dr Jackson confirmed the following.  That you have an established diagnosis of paranoid schizophrenia of treatment resistant nature complicated by polysubstance abuse and dependence.  You have an antisocial personality disorder which is likely to have been potentiated by early interruptions in attachment, particularly the loss of both your biological father and stepfather.

28You have an unconfirmed diagnosis of acquired brain injury secondary to substance abuse but that had been posited by past treating clinicians and you reported learning difficulties at school and treatment for ADHD in adolescence.  At the time of your assessment in January 2020 Dr Jackson said you presented with residual symptoms of schizophrenia characterised by grandiosity and psychotic thinking.

29I have not detailed other aspects of your personal history but I have taken into account what the psychiatrist set out and the conclusions they drew from your troubled and bleak childhood and adolescence.  I have also taken into account what is set out by Ms Gibbons in her very helpful written submissions.

30As mentioned you have many prior convictions mostly for dishonesty, shop theft and the like though there is a Children's Court prior conviction for armed robbery.  You also have many offences for resisting police.  These are from 2017 but combined with this offence, the first sexual offences, but as noted by Dr Jackson there appears to be an escalation of your offending since 2016.

31As referred to you have a long and sad history of severe drug addiction including injecting heroin and more recently methylamphetamines.  You have a history of heavy abuse of alcohol since your early teens.  Your prospects for the future are very guarded and uncertain.  Obviously what is central is that you adhere to the anti-psychotic and other medications you are prescribed and refrain from drug use.

32Housing and social supports are also vital, otherwise the pattern of your trajectory from prison into homelessness to drugs and disconnection from treatment could well and indeed is likely to be repeated.  Ms Gibbons pointed out that a social worker from Forensicare, Mr Douglas Di Prada, is taking particular interest in assisting you moving towards housing and hopefully once in housing in Geelong you will be able to be connected to the community mental health system.

33In sentencing you it is clear that you have an enduring mental illness which means that you are not a proper vehicle for deterrence to others.  Deterrence to you is likewise difficult and must be moderated given your enduring mental illness.

34As to your moral culpability I am of the view as was the Crown via the very helpful memo read by Mr Moore that your impaired mental functioning is causally connected to your behaviours in respect of the serious crimes of sexual activity directed at others and the threat to kill.

35Thus the full weight of denunciation will not be visited upon you.  However, the need to protect the community looms large because of the type of offending and the fact your illness is enduring and is causative of these behaviours.  It seems to me the best way to punish and protect the community and in some way facilitate your reform is to impose a sentence that involves the potential for supervision on release.

36You have not done well on community corrections orders in the past but there needs to be oversight by professional Corrections staff while you are in the community and it seems to me the best way for that is via the potential for parole.

37It is essential that work commences to try and re-establish you in the community.  However, I must always impose a sentence that is proportionate to your criminality, that is you grabbed your crotch and you masturbated in public places in close proximity to frightened women and you then threatened to kill a nurse who was simply trying to help you in a very stressful job.

38The comprehensive nature of your mental illness does not mean that I have allowed that to overwhelm consideration of the impact of what you did on the victims.  They are adversely affected whether your crimes were committed against them while you were in the fog of paranoid delusions or schizophrenia or not.

39Indeed your erratic behaviour and lack of insight at the time adds to their fears.  Your plea of guilty after the assessment that you were fit to stand trial or fit to plead, the plea itself is important and has resulted in a lower sentence than otherwise would be the case.

40Prison is now harder due to the restrictions that have been imposed because of the COVID-19 health crisis.  I note that you were reconnected perhaps briefly with a teenage son before the end of visits to the prison.  I hope that this can re-establish and has a stabilising effect upon you.

41The critical thing for you is that you must engage with community mental health treatment upon your release.  The offences are separate and I must acknowledge the different crimes and the different victims that were committed in circumstances that were in respect to the first crime from the second over a year apart.

42The second crime and the others that followed were committed really within days or months or a short period of time from your release from prison.  There must be some but sensible cumulation but I have taken into account the principle of totality and as mentioned the important principle of proportionality.

43You have now done 491 days or just over 16 months in prison and in the acute mental health facility of Thomas Embling.  In respect of these offences I impose the following punishments.

44For Charge 1 I impose a sentence of imprisonment of 14 months.  On Charge 2 I impose a sentence of 14 months.  On Charge 3 you are convicted and discharged.  On Charge 4, the threat to kill, you are sentenced to 14 months' imprisonment and on the charge of committing an offence while on bail you are sentenced to seven days' imprisonment.

45I order that six months of Charge 2 and eight months of Charge 4 be cumulative upon each other and upon Charge 1.  That gives a total effective sentence of 28 months and I order that a minimum non-parole period of
18 months be fixed.

46You have, as I have said, already served 491 days and this figure having been reckoned I declare it is part of the sentence that I have just imposed.  I will ensure this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already served more than 16 months' imprisonment, 491 days.

47Thus you will be eligible to apply for parole within a short period of time, some just under two months.  Had you pleaded not guilty to these offences I would have imposed a sentence of three years and two months with a non-parole period of two years and six months.  Is there any other orders required?

48MS GIBBONS:  Not that I am aware of, Sir.

49HIS HONOUR:  Thank you.  Mr Moore, does that cover it?

50MR MOORE:  It does, Your Honour.

51HIS HONOUR:  Thank you.  If there is nothing further, Ms Gibbons, you can be in touch with Mr Allen via the systems that are there, as clunky as they are, but we cannot continue this with Mr Allen on the screen so you will be in touch with him otherwise.  Is that satisfactory?

52MS GIBBONS:  Yes, Your Honour.  I will make contact as soon as I can.

53HIS HONOUR:  Thank you very much.  We will end the link to the prison.  It requires the prison to hang up so that it is all concluded as far as the prison is concerned and the parties can leave the WebEx meeting as it is called.  Thank you very much for your very considerable assistance in respect of a very difficult matter.

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