Director of Public Prosecutions v Allen
[2020] VCC 72
•10 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-17-01184 and CR-18-00596
Indictment Nos. C1610948.1 and G12970552
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE ALLEN |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2020 | |
DATE OF SENTENCE: | 10 February 2020 | |
CASE MAY BE CITED AS: | DPP v Allen | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 72 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – Armed robbery – False imprisonment – Possession of a drug of dependence – Late pleas of guilty – Pre-planned – Held knife to victim’s neck – Knife provided by co-accused – Took victim to an ATM to get cash – High moral culpability – No personal gain from the offending – Strong family supports – Drug addiction – Parity – 18 months’ imprisonment with a 3 year CCO – Fined $500 for the possession of methylamphetamine
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Fallar Ms M Lynch | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms J Buxton | Valos Black & Associates |
HIS HONOUR:
1 Shane Allen, you have pleaded guilty to charges preferred on two indictments. On Indictment C1610948.1 you have pleaded guilty to one charge of armed robbery and one charge of false imprisonment. On Indictment G12970552 you have pleaded guilty to one charge of possession of a drug of dependence.
2 The maximum penalties are as follows: for armed robbery 25 years’ imprisonment, for false imprisonment 10 years’ imprisonment and for possession of a drug of dependence, in the circumstances of this case, 30 penalty units or one year’s imprisonment or both those penalties, since, in light of the prosecution’s concession, I am satisfied on the balance of probabilities that the offence was not committed by you for any purpose relating to trafficking in methylamphetamine.[1]
[1] Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(b).
The facts
Background
3 The prosecution filed an Amended Prosecution Opening for Plea dated 3 February 2020[2] which, it is agreed by your counsel, I can treat as a statement of agreed facts for the purposes of sentencing you.
[2] Exhibit P1.
4 At the time of committing these offences you were aged 30 years and you resided at an address in Longwarry. You are presently 33 years old.
5 You have two co-accused, Kirsty Rose Caldwell, who was 20 years old at the relevant time and resided at an address in Pakenham, and Brianna Rosse, who was 19 years old at the relevant time and resided with her parents at an address in Hampton Park.
6 The victim, Jason Daniel Pellissier, was 33 years old at the time of the offending.
7 Pellissier had briefly been in a relationship with Rosse, who was your former domestic partner. Rosse and Caldwell were cousins and often saw one another. Pellissier did not know you personally, but he knew you were Rosse’s former partner.
8 On 16 October 2016, Rosse sent Pellissier a threatening message via Facebook.
24 October 2016
9 In the afternoon and evening of 24 October 2016 you, Caldwell and Rosse formulated a plan to obtain money from Pellissier as well as to steal his mobile phone.
10 Rosse told you and Caldwell that Pellissier was paid around $900 to $1,000 on a Monday, and she wanted that money collected for her parents. It appears Rosse believed Pellissier owed her parents money for outstanding rent. Rosse also told you that she wanted Pellissier’s mobile phone, as she wanted to delete messages and photographs referrable to the period they were in a domestic relationship.
11 The plan was for Caldwell to lure Pellissier to her home in Pakenham that evening. Once there you were to arrive and attempt to obtain the money and the mobile phone from Pellissier.
12 At some point during these discussions Caldwell produced a black army knife and showed it to you. Caldwell told you to take the knife to use as part of the plan. This was the knife you used the next day during the armed robbery.
13 At about 6.36 pm Caldwell sent a text message to Pellissier commencing an exchange in which Pellissier and Caldwell discussed Pellissier’s previous relationship with Rosse, and Rosse’s relationship with you. The plan to lure Pellissier to Caldwell’s residence in Pakenham was then set in motion. The text message said: ‘Hey have you seen or heard from bree? I’ve been trying to contact her for over a week now and I’m getting worried’.
14 At 6.48 pm Pellissier sent a text message to Caldwell in these terms: ‘She wants to be with a jailbird junkie that’s up to her’. ‘Jailbird junkie’ was a reference to you.
15 Between about 8.30 pm and 12.00 am Caldwell and Pellissier continued to message each other. Caldwell then invited Pellissier to come over to her house that night to watch movies.
16 After these plans were hatched Caldwell was dropped at her home in Pakenham. You and Rosse then went to Rosse’s home in Hampton Park. The plan was that Caldwell would text you when Pellissier was on his way over to her house.
25 October 2016
17 At 1.32 am on 25 October 2016 Caldwell sent Pellissier a text message saying: ‘Hey you almost here or did you get lost’. Pellissier replied at 1.37 am saying: ‘Honestly just wondering if your genuine or is it set up that’s why I’m not there’. Caldwell replied at 1.41 am: ‘Why would I set you up? I have not reason to …’. Pellissier replied: ‘Sorry hun no offence intended just had to be careful with the way bree has been acting I hope you understand’.
18 At 1.49 am Caldwell sent a text message to Pellissier in which she said:
Why do you have to be so careful for? She’s honestly nothing to be scared of she’s all talk and has been ever since high school, try not to stress I wouldn’t do that to you and you haven’t done anything wrong to me.
19 Pellissier replied at 1.54 am and said: ‘Cool I will actually head over sorry for that. Can I give you a phone she left with me and you can give it to her when you see her’.
20 At 1.57 am Caldwell told Pellissier that she was going to go to Costello’s Cardinia Hotel to play the pokies before he came over. At approximately 2.05 am she entered the hotel and played the pokies on several machines before leaving at about 2.16 am to return home.
21 Sometime after Caldwell returned home Pellissier arrived and she let him in. He had driven to her house in his blue 2003 Ford XR sedan. He placed Rosse’s mobile phone on a coffee table and asked Caldwell to return it to Rosse. Pellissier and Caldwell then started watching a movie.
22 At 3.12 am, while Pellissier and Caldwell were watching the movie, you sent a text message to Caldwell saying: ‘Wat u wanna do I can come now if u want?’ Caldwell and you then exchanged the following text messages:
(a) At 3.31 am Caldwell replied: ‘Yeah’.
(b) At 3.42 am you said: ‘On my way’.
(c) At 4.06 am you messaged: ‘Here’.
(d) At 4.13 am, you texted Caldwell as follows: ‘I’ll come knock on the door yeah??’.
You then called Caldwell at 4.26 am.
23 Shortly following this call you knocked on Caldwell’s door and she let you into the house. You spoke to Caldwell for a short time and then approached Pellissier, who was in the lounge room. You said to Pellissier: ‘So you’ve got a problem with jailbirds’. You stood over Pellissier and said: ‘So I hear you’ve been saying shit about me’ and ‘You’re going to pay for what you’ve been saying’.
Charge 1 (armed robbery) (first incident)
24 As you said this to Pellissier, you held a knife up to his neck and asked him whether he would like a ‘smiley’, or words to that effect. While the blade was pressed to Pellissier’s throat he could not see it, but he felt something sharp.
25 Pellissier understood a ‘smiley’ to mean ‘cutting his face’ at the corners of his mouth. I am satisfied it was your intention at that time to convey this threat to your victim. I note there is no charge of making a threat to inflict serious injury[3] and you are not to be punished for that offence. Nonetheless, it is an aggravating circumstance of the armed robbery which I am entitled to take into account in assessing the objective gravity of your offending conduct, as it involved a less serious offence than the armed robbery and the act you committed ‘so belonged and gave meaning to the offence’.[4] For these reasons, in my opinion it is not unfair to take this threat into account.
[3] Crimes Act 1958 s 21.
[4] See R v Nobile [2006] VSCA 211 [8] (Nettle JA), [45], [52] (Coldrey AJA, Bell AJA agreeing); R v Henderson-Drife [2007] VSCA 211 [13]–[18] (Whelan AJA, Chernov and Vincent JJA agreeing); DPP v Gonzalez
26 You held the knife to Pellissier’s neck for about a minute and told him that ‘this could go one of two ways’. Either Pellissier gave you everything he has or things ‘won’t be pretty’.
27 As a result of this threat, Pellissier gave you his mobile phone. He told you that he only had $10 in cash with him, to which you replied that you knew he was paid on Mondays. You then said ‘you’re going to take me to the bank or else’.
28 At the time Pellissier handed you his mobile phone you had taken the knife away from his neck and you were sitting on the couch adjacent to him. The knife was described by Pellissier as being about 20 centimetres long with a blade about half that length. The handle and blade were all black or dark grey and the blade was serrated. It was like a hunting knife not a kitchen knife. As I said earlier, I accept Caldwell gave you the knife to use in committing the armed robbery.
Charge 2 (false imprisonment)
29 You had the knife blade protruding from your sleeve when you demanded Pellissier take you to the bank. Pellissier did not see the knife again once you all left the house. Nonetheless, he knew you had the knife on you, though he did not see what you had done with it. It is a matter of agreement between the parties that the knife was in the vehicle for the entire trip to and from the ATM and was possessed by Caldwell.
30 During the 4.35 am exchange Caldwell was text messaging Rosse and the following exchange of occurred:
(a) At 4.37 am Caldwell sent a message to Rosse which said: ‘I got your phone ha ha’.
(b) Rosse replied at 4.38 am, and said: ‘Yay and my gear where is Shane’.
(c) At 4.39 am Caldwell sent a message to Rosse and said: ‘Ha ha yep he’s here and Jason is shitting himself’.
31 Rosse replied at 4.40 am and said: ‘I have been waiting for it for a week lol I know it from a mile away Jason is going to try and make me look like the bad guy send me pictures lol he is a sly maggot’.
32 Caldwell and Rosse continued to send text messages to each other. At 4.46 am Rosse sent a text message to Caldwell saying: ‘I’ll call you so I can hear I need to hear it in his voice that he’s shitting it’.
33 Another text message exchange occurred at 4.47 am in which Rosse said to Caldwell: ‘Can you get his smokes to need them for work ha ha’.
34 At about 4.39 am Caldwell sent you a text message stating: ‘feel free to hit him’.
35 Following the text exchange at about 4.47am, and following the incident with the knife, Pellissier, you and Caldwell all got into Pellissier’s motor vehicle. Pellissier got into the front driver’s seat. You got into the front passenger seat. Caldwell got into the rear seat.
36 Pellissier was given directions to drive around the Pakenham area for approximately 20 minutes before he was directed to a Westpac ATM in Pakenham. During the drive to the ATM Caldwell called Rosse three times between 5.07 am and about 5.08 am and at 5.09 am Rosse called Caldwell.
37 At about 5.18 am Pellissier parked his vehicle in Main Street, Pakenham. You and Pellissier exited the vehicle while Caldwell remained in the vehicle. You and Pellissier walked to the ATM where Pellissier inserted his card and checked his account balance. You then leant over to the ATM and withdrew $260 from the account and took the money from the ATM once it had been dispensed. This took about three minutes. You retained $130 and returned the other $130 to Pellissier. At the time you took Pellissier’s money Caldwell was waiting in the car and was in possession of the knife.
38 The prosecution case was that, acting pursuant to an agreement with you, Caldwell had the knife with her for the purpose of committing the armed robbery. The armed robbery in Charge 1 on the indictment is a rolled-up charge comprising the incident involving the theft of Pellissier’s mobile phone at Caldwell’s house and the theft of the $130 from Pellissier at the ATM.
39 Following the ATM incident you and Pellissier walked back to his vehicle. Pellissier started driving the vehicle towards Caldwell’s premises. During the drive you and Caldwell discussed whether you would steal Pellissier’s motor vehicle. During this ordeal Pellissier was visibly upset and crying and he was terrified throughout the incident. The conduct involved in the trip to the ATM and returning to Caldwell’s residence constitutes the factual substratum underpinning Charge 2 (false imprisonment).
40 After returning to the premises Caldwell, in your presence, removed the spark plug from Pellissier’s motor vehicle so he could not drive away. You and Caldwell then removed a Yamaha home theatre system from the boot of Pellissier’s motor vehicle and a ‘monster’ power board from the footwell of the vehicle. These items were taken by you and Caldwell into her house. This is an uncharged act led by the prosecution as context evidence. You are not to be punished for this conduct.
41 You told Pellissier to come inside the premises, which he did because he was scared of what would happen if he did not comply with your demand. Once inside you and Caldwell threatened him, demanding that he not report the matter to police.
42 When you were inside the premises you and Caldwell decided that you wanted some cigarettes from Pellissier. You all went outside to his motor vehicle where you took a packet of cigarettes from the centre console. Again, this is an uncharged act led by the prosecution as context evidence. You are not to be punished for this conduct.
43 At this point you and Caldwell gave the spark plug back to Pellissier so that he could go to work. He asked for the return of his mobile phone but you and Caldwell simply ignored his request and went back inside her premises.
44 At approximately 6.00 am Pellissier left Caldwell’s premises in his vehicle and drove to a friend’s house.
45 At approximately 10.00 am, Pellissier checked the ‘Find My Phone’ service which revealed that his mobile phone was switched on and showing as being located in the vicinity of Caldwell’s house.
46 Later that day Pellissier reported what had occurred to Senior Constable Nick Pawley at the Oakleigh police station.
Police investigation
47 At approximately 7.20 am on 27 October 2016 police officers attended at Caldwell’s premises in Pakenham and executed a search warrant. They located you and Caldwell inside the premises in a rear bedroom. You were both arrested. A search of the lounge room was conducted during which the Yamaha home theatre system stolen from Pellissier was found.
Charge 1, possess drug of dependence (methylamphetamine)
48 So far as Charge 1 on Indictment G12970552 is concerned, it is agreed that a police search of the bedroom occupied by you and Caldwell located a wallet containing cards which were in your name. Inside the wallet was a plastic ziplock bag containing methylamphetamine. As I indicated earlier, it is accepted by the prosecution that this was a small quantity of the drug possessed by you for you for your own use.
Arrest and interview
49 You were arrested and transported to the Pakenham Police Station. During a video recorded record of interview you made admissions regarding your involvement in the armed robbery and false imprisonment offences. However, it is fair to say you minimised your role and the seriousness of your offending to a considerable extent.
50 You said that during the afternoon and evening of 24 October 2016 you, Caldwell and Rosse made plans to lure Pellissier to Caldwell’s home. The plan was that when he got there you would turn up and try to get some money from him for Rosse’s parents. You said that you knew when and how he was paid because Rosse had told you.
51 You told police that you turned up at Caldwell’s premises when Pellissier was there and that you went inside and sat down and spoke to him for a short period of time before you asked him how much drugs he had on him. You told police that you then took about half a ball of Ice from him, which you gave to Rosse and Caldwell.
52 You told police that you then asked Pellissier to drive you down to the ATM so that he could withdraw the money he owed Rosse’s parents. You said that Pellissier drove you and Caldwell to the ATM in Main Street, Pakenham, and you and he went to the ATM to withdraw the money.
53 You told police that when you were at the ATM with Pellissier he was visibly upset so you reassured him by saying: ‘I’m not going to take all your money buddy’. You told police that Pellissier withdrew $260 from his account and handed it to you, and that you then gave him $130 back. The prosecution accept this is what occurred.
54 You told police that you wanted nothing to do with the Yamaha home theatre system and left it for Caldwell at her premises. You said that she put it on Gumtree to sell, initially for $800, but when it did not sell quickly enough, she lowered the price to $500 to $600.
55 You told police that after driving back to Caldwell’s premises, you and Caldwell removed the Yamaha speakers and the Samsung Galaxy S6 Edge from Pellissier’s motor vehicle and took them inside Caldwell’s premises.
56 You told police that Caldwell removed the spark plug from Pellissier’s vehicle. You said that you and Caldwell thought about taking his vehicle, but in the end you did not take it because you realised he needed it to go to work. Eventually, you returned the spark plug and Pellissier left for work.
57 You told police that you went to see Rosse at her home address and took her the Samsung mobile phone, drugs, and the money you had taken from Pellissier. You said that Rosse managed to unlock the Samsung mobile phone and wiped its contents.
58 You denied having a knife at any point during the incident but said that Caldwell had shown you a knife earlier in the day during the planning stage of the armed robbery. You described it as a ‘black army knife’. You said that Caldwell had the knife on her during the entire incident and tried to pass the knife to you multiple times when you and she were in Pellissier’s vehicle. You said that you refused to take it from her.
59 Clearly, to the extent that what you told police is inconsistent with the agreed statement of facts I have no regard to it.
Victim impact
60 A victim impact statement from Jason Pellissier was tendered on the plea.[5] In it he states that every day since the incident he feels very scared and suffers from extremely bad anxiety on a daily basis. He ruminates daily about having the knife held to his throat at which stage he says he thought he would never see his children again. Since you were the offender who held the knife to his throat, this effect on the victim is very relevant to my sentencing disposition.
[5] Exhibit P2.
61 There is no doubt that this was an extremely terrifying incident for the victim and that he has suffered significantly as a result. He has had difficulty obtaining employment and is now dependent on Centrelink, owing to his anxiety which limits his capacity to apply for jobs and attend employment interviews. As a result of your depravations of him, the victim has been struggling financially ever since the offending.
62 It is clear that the effect of this offending on the victim is significant and ongoing.
Offence seriousness
63 Armed robbery is a very serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the Victorian community views this offence. Your counsel conceded that this is a ‘very serious’ offence.
64 In my opinion, this is a serious example of the offence of armed robbery. It was pre-planned and, as I said earlier, effectively you and Caldwell set up an ambush of the victim for the purposes of him being robbed. You were the principal perpetrator and your use of the knife is an aggravating circumstance.
65 Moreover, false imprisonment is a serious enough offence, and this was a moderately serious example. The victim was deprived of his freedom for some time while he was effectively forced to take you and Caldwell to the ATM and then return to her house.
66 This was protracted offending over a relatively lengthy period of time in which the victim was completely within yours and Calwell’s power.
67 Your initial use of the knife against the victim’s throat would have compounded in the his mind the threatening nature of the incident overall.
68 I assess your moral culpability as being high.
69 At the plea hearing your counsel conceded that your offending conduct is ‘very serious’ and that it involved a plan conceived with your two co‑offenders to deprive Pellissier of his property. Your counsel accepted that your conduct in using a knife to intimidate and scare Pellissier significantly aggravates the seriousness of your offending conduct. Your counsel said that you acknowledge the fear this invoked in the victim and that its impact is ‘significant and ongoing’.
70 Nonetheless, while acknowledging the seriousness of your offending conduct, your counsel submitted that there were a number of factors which lessened what otherwise might have been an extremely serious offence. These are as follows:
(1) The offending, whilst being planned, was not particularly sophisticated and the planning was not long term.
(2) The monetary value of the property stolen was not objectively significant. However, no doubt the $130 was a significant enough amount of money for Pellissier, who was not a man of great means.
(3) You did not initiate contact with the victim, who was not previously known to you. It was your co-accused Caldwell’s plan which you willingly and knowingly joined in.
(4) There were no physical injuries inflicted on the victim.
(5) You did not personally gain from the offending. The Crown accepts that the $130 was given by you to Rosse in the belief that the victim owed money to her parents in respect of unpaid rent and the Yamaha theatre system was retained by Caldwell, who sought to sell it on Gumtree.
(6) So far as the knife is concerned the Crown accepts that this was handed to you by Caldwell. However, it is clear that you used it to great effect in terrifying your innocent victim. I also accept that you did not possess the knife throughout the false imprisonment. It appears that during the car trip to and from the ATM the knife was in Caldwell’s possession.
(7) It was you who returned the spark plug to the victim so he could go to work. This shows some degree of victim empathy at the time.
(8) You were cooperative with police and made admissions to being involved in the incident. However, I do note that you significantly minimised the extent of your involvement.
(9) Surprisingly, you did not take all of the money dispensed by the ATM and returned half of it to the victim, saying, ‘I'm not gonna take all your money buddy’. Once again, this shows a degree of victim empathy during the commission of the offending conduct which gives rise to Charge 2.
Personal circumstances
71 You are presently aged 33 years and were 30 years old at the time of committing these offences.
72 You were born in Melbourne and raised in Wantirna and Narre Warren. Your parents, Sandra and Gary, who separated in 2014, both remain very supportive of you. You have three sisters and one brother. You have 15 nephews and nieces, a great niece and a great nephew. Your mother describes you as an active and committed uncle, brother and son.
73 At the plea hearing your mother, father and sister, Donna, were present in Court supporting you.
74 I was told by your counsel that when you are eventually released from custody, you propose to reside with your mother and her sister on a rural property in Yarragon which your mother and her sister run as a non-profit horse rescue service. Apparently your mother suffers from chronic arthritis and is looking forward to the assistance and support which you will be able to provide when you reside at the property.
75 You have two sons aged 13 and six to a lady named Courtney whom you have not seen for approximately two years. Rebuilding the relationship with your sons is a significant motivating factor in you getting your life back on track. Your counsel told me that you are committed to becoming a ‘hands-on father’ and wish to become ‘heavily involved in the child rearing of [your] sons and regularly participating in [their] activities’.
76 Following the plea hearing your counsel informed the Court there are no family law orders in place, and DHHS has not been involved with your sons. You have not sought contact with Courtney or your sons for approximately two years and as a result you do not know what Courtney’s current position is regarding you having contact with the children.
77 You instruct your counsel that you want to ensure that you are in a stable position in life, with your life back on track, before seeking to initiate contact with them. You want to ensure that your presence in your sons’ lives will be a positive experience for them and in their best interests.
78 Your commendable desire to re-establish contact with your sons and become part of their lives is a very strong protective measure which, if this can be implemented, bodes well for your ultimate prospects of rehabilitation.
79 So far as your education is concerned, you attended Hampton Park Secondary College and completed Year 11.
80 Since leaving school you have worked in a variety of trades including carpentry, cabinetmaking, welding, fencing, tiling and shop fitting. You were a truck driver for approximately three years from the age of 26 to 28 with two logistics firms. This employment required random drug testing and clearly during that period of your life you managed to remain drug-free.
81 You have a relevant criminal history albeit it is somewhat limited compared to many others who come before this Court. Apart from a speeding offence which was dealt with in October 2010, your offending appears to have commenced upon the collapse of your long term relationship with Courtney in 2015. You have a conviction in April 2015 for contravene a family violence intervention order for which you were convicted and fined $200.
82 In May 2016 you were before the Dandenong Magistrates’ Court charged with two counts of contravene family violence intervention order; possess amphetamine; two charges of possessing a controlled weapon without excuse; one charge of possessing a dangerous article in a public place; and a charge use unregistered motor vehicle on a highway. You were convicted and released on a 12 month community correction order with 75 hours of unpaid community work, supervision for 12 months, and requirements to undergo treatment and assessment for drug abuse or dependency, mental health assessment and treatment as directed and to undergo offending behaviour programs as directed.
83 It appears you breached this community correction order by further offending. On 27 September 2016 you were again before the Dandenong Magistrates’ Court charged with contravene a conduct condition of bail and two charges of contravening a family violence intervention order. You were convicted and released on a further community correction order for 12 months with supervision and assessment, treatment and rehabilitation conditions. On a charge of contravene community correction order you were sentenced to 14 days’ imprisonment concurrent with a sentence of 27 days’ imprisonment which was imposed for the original offences for which you received the community correction order in May 2016. On the use unregistered motor vehicle charge you were convicted and discharged. The net effect of the hearing on 27 September 2016 was that you received a sentence of 27 days’ imprisonment, which was time served, and a 12 month community correction order.
84 You also have relevant subsequent offending for which you have pleaded guilty and are due to be sentenced in the Moorabbin Magistrates’ Court tomorrow. I was provided by your counsel with a document setting out the charges in relation to that consolidated plea hearing.[6] The charges include possession of various drugs, which I understand are for your own use, handling stolen goods, a number of driving offences, failing to answer bail, unlawful assault, committing an indictable offence whilst on bail and contravening bail conditions.
[6] Exhibit D6.
85 While subsequent convictions and findings of guilt cannot be taken into account in the same way as prior convictions can be, they bear upon my assessment of your character and shed light on your risk of recidivism. This is relevant to the weight I give to specific deterrence and protection of the community in sentencing you for the present offences. Subsequent offending is also relevant to my assessment of your prospects of rehabilitation.[7]
[7] See R v Rumpf [1988] VR 466, 475 (McGarvie J, Young CJ and Murray J agreeing); Alexandros v Birchell (2000) 31 MVR 307, 310–311 [15], [18] (Smith J); DPP v Rongonui (2007) 17 VR 571, 580 [37] (Maxwell P); Bellizia v The Queen [2016] VSCA 21 [75], [77]– [78] (Santamaria JA).
86 The magistrate at Moorabbin had you assessed for a community correction order and the assessment outcome report dated 2 September 2019 was tendered on the plea before me.[8] You were assessed as being ‘high risk of reoffending’ according to the level of service risk assessment tool. You were found suitable for a community correction order with conditions requiring treatment and rehabilitation for drug abuse, treatment and rehabilitation for mental health, treatment and rehabilitation other and supervision.
[8] Exhibit D3.
87 Apparently your offending was committed in the context of the breakdown in your relationship with your parents and your lapsing into frequent and problematic substance abuse. At this time your abuse of methylamphetamine had escalated to daily use.
88 At the time of your assessment, a mental health community corrections screening program assessment was also performed and a copy of that assessment dated 2 September 2019 was provided during the plea before me.[9] According to that report you began using tobacco, alcohol and cannabis at age 12 in social settings with your school friends. This developed into the use of speed and ecstasy by the age of 18, this being introduced to you by your older brother and his friends. At age 26 to 27 you began using methylamphetamine (Ice) and this quickly became a regular habit to the point where you were using every few days.
[9] Exhibit D4.
89 In 2015 your long term partner and mother of your two sons left you. This precipitated an increase in your methylamphetamine abuse to a daily use which significantly interfered with your ability to work. Since 2015 you had been using up to half a gram of ice daily, and this only ceased when you were taken into custody on 27 October 2016.
90 Upon your release from custody in 2017 you participated in the ‘Ice Melt Down Project’ which you reported you found very helpful, and you expressed a motivation to re-engage in alcohol and drug dependence counselling and support.
91 The person preparing the assessment report opined that you have ‘good insight into substance use difficulties and expressed motivation to engage in appropriate alcohol and drug dependence treatment and support’. You also expressed a willingness to engage in mental health treatment and support through your general practitioner. The assessing officer opined that you have ‘mild mental health problem or difficulty’. No formal diagnosis was made and your counsel did not submit that any Verdins principles[10] were engaged in your case.
[10] R v Verdins (2007) 16 VR 269.
92 You have had two periods in custody since committing the present offences. You were initially remanded on 27 October 2016 and bailed on 12 April 2017. Accordingly there is 168 days’ pre‑sentence detention in respect of that period. You were again taken into custody on 7 April 2019 and have remained there to the present time. A further 309 days’ pre‑sentence detention relates to that period, making a total of 477 days PSD to be declared.
93 I was provided with additional information regarding your most recent period in custody. Throughout this period you have worked full time in a number of roles including welding, working in the kitchen and being a buggy driver, which apparently is a very responsible position as it gives you access to all areas. Unfortunately you instruct your counsel that you have been unable to work in prison for the last two months because you have been overcome with feelings of stress and anxiety in the lead up to this plea hearing.[11]
[11]See Exhibit D5.
94 I was provided with a number of certificates in relation to courses you have undertaken whilst in custody.[12] These include a six-hour course on ‘managing cravings’, a six-hour ‘AOD & Loss Program’, the ‘Adapt’ program, the ‘Take Stock A’ program and the ‘Take Stock B’ program. I was told by your counsel that you have remained free from illicit drugs whilst you have been in custody.
[12]Exhibit D2.
95 I have taken your efforts at bettering yourself whilst in custody into account in assessing your prospects of rehabilitation, which I assess as being reasonably good provided you can remain drug-free upon your release from custody and receive appropriate support for your mental health and other problems.
Mitigating circumstances
96 Whilst yours are late pleas of guilty following a sentence indication hearing I conducted late last year, at no stage during the proceedings did you seek to cross-examine any prosecution witnesses. Your pleas of guilty have utilitarian benefit and also indicate a willingness on your part to facilitate the administration of justice and an acceptance by you of responsibility for your criminal conduct. I am also prepared to accept that there are some indications of remorse regarding your involvement in this incident and a degree of victim empathy.
97 I also accept that there has been some delay in this matter, which is no fault of yours. It has been hanging over your head and by reason of that delay you have taken some positive steps towards your rehabilitation.
98 So far as your prospects of rehabilitation are concerned, in light of your prior criminal history and the circumstances of this offence, I can only adopt a cautious approach. Nonetheless, I assess your prospects of rehabilitation as being reasonably good provided you remain drug-free upon your release from custody.
Sentencing considerations
99 I have had regard to current sentencing practices in relation to armed robbery and false imprisonment in light of the decision of the High Court of Australia in DPP v Dalgliesh (a pseudonym).[13]
[13] (2017) 262 CLR 428.
100 It is difficult to gauge more than a very general yardstick from so-called comparable cases given the wide range of offending conduct which can constitute the offences of armed robbery and false imprisonment and the myriad of personal circumstances pertaining to individual offenders.
101 I am of the view that the offending conduct comprising Charge 1 on the indictment is a serious example of armed robbery and the offending conduct comprising Charge 2 on the indictment is a moderately serious example of the offence of false imprisonment. To the extent that I have been able to gain assistance from comparable cases, I have sought to do so in your case.
102 Parity has a role to play in sentencing you Mr Allen. I sentenced your co-offender, Kirsty Caldwell, on 28 June 2019 on a single charge of armed robbery arising from this offending to imprisonment for 56 days, which was time served in her case, together with a community correction order for a period of 3 years with a number of rehabilitative and other terms and conditions.[14]
[14] [2019] VCC 1226.
103 As you counsel fairly observed, Caldwell played a lesser, albeit significant enough role, than you in the armed robbery and she was not charged at all in respect of the false imprisonment. She fell to be sentenced as a youthful offender and, as your counsel also fairly conceded, there are other personal circumstances present in her case which distinguish it from yours to some extent.
104 Your co‑offender, Brianna Rosse, was sentenced on a charge of robbery by her Honour Judge Brimer on 5 June 2019. She was sentenced to a community correction order of 6 months’ duration with treatment and rehabilitation conditions. However, I note that Rosse was not present during the commission of this offence, but was charged on the basis of her complicity in a robbery and not an armed robbery. Clearly, she played a much lesser role than you did. There were also personal circumstances present in her case which do not pertain to you.
105 Nonetheless, to the extent that the sentences passed on Caldwell and Rosse are relevant I have taken them into account.
106 The 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 sentencing you, I must have regard to a range of factors such as the seriousness of your offences, your culpability for them, the effect of your crimes on your victim and your personal circumstances.
107 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.
108 As your counsel accepted, given the serious nature of the offences of armed robbery and false imprisonment, general deterrence, denunciation and just punishment must be accorded significant weight in sentencing you. I must also give some weight to specific deterrence and protection of the community, given the nature of your offending conduct, your prior criminal history and your subsequent offending. As I said earlier, I assess your prospects of rehabilitation as being reasonably good, provided you remain drug-free upon your release from custody.
109 I have decided in your case it is appropriate to structure a sentence which will maximise your prospects of rehabilitation while giving what I regard to be appropriate weight to other relevant sentencing considerations.
110 I had you assessed for suitability for a community correction order and I have received an Extended Pre-Sentence Assessment – Outcome Report dated 31 December 2019.[15] You were assessed as suitable for the imposition of a community correction order.
[15] Exhibit C1.
111 The community corrections officer conducted a risk assessment which focussed on your risk and needs profile. You were assessed as being of medium risk of reoffending. Drug use and inappropriate companions appear to be high risk factors for you. However, as I earlier observed, you have a number of protective factors in place to assist your ultimate rehabilitation.
112 You have strong family supports, particularly your mother with whom you intend to live upon your release from custody. It is hoped that upon your release from custody you will sever ties with your previous criminal associates and regain support from law abiding family and friends who will assist you to remain drug free. Hopefully, you can re-engage with your sons and become part of their lives and an appropriate role model for them.
113 I accept that you now have gained insight into your prior criminal behaviour and the effect it has on innocent members of this community, in particular the present victim.
114 In light of all of the considerations I have referred to, I am of the view that the purposes for which these sentences are imposed can be appropriately achieved by imposing sentences of imprisonment together with a lengthy community correction order with a number of terms and conditions attached.
Stand up, Mr Allen
On the charge of armed robbery (Charge 1 on Indictment C1610948.1) you are convicted and sentenced to 17 months’ imprisonment with a three year CCO to commence upon your release from custody.
On the charge of false imprisonment (Charge 2 on Indictment C1610948.1) you are convicted and sentenced to 3 months’ imprisonment with a three year CCO to commence upon your release from custody.
I direct that 1 month of the custodial sentence imposed on Charge 2 be served cumulatively on the custodial sentence imposed on Charge 1, making a total effective sentence on that indictment of 18 months’ imprisonment with a three year CCO to commence upon your release from custody.
I declare that pre‑sentence detention in your case is 477 days not including this day and I direct that that declaration be entered into the records of the Court.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty on Indictment C1610948.1 I would have sentenced you to 4 years’ imprisonment with a minimum non-parole period of 3 years
On the charge of possession of a drug of dependence (Charge 1 on Indictment G12970552) you are convicted and fined $500. That fine will be referred to the Director of Fines Victoria for collection.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty on Indictment G12970552 I would have sentenced you to be convicted and fined $800.
The terms and conditions of your community correction order are as follows:
(1)You are to report to Morwell Community Correctional Services at 25 Ann Street, Morwell within two clear working days from your release from custody.
(2)Pursuant to s 48C of the Sentencing Act 1991 (‘the Act’) you are to perform 300 hours of unpaid community work during the 3 year term of the order.
(3)I order pursuant to s 48CA of the Act all hours satisfactorily undertaken by you in treatment and rehabilitation are to be counted as hours of unpaid community work.
(4)Pursuant to s 48D(3)(a) of the Act you are to undergo assessment and treatment (including testing) for drug abuse and dependency.
(5)Pursuant to s 48D(3)(e) of the Act you are to undergo any mental health assessment and treatment, that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility.
(6)Pursuant to s 48D(3)(f) of the Act you are to undergo programs that address factors related to your offending behaviour.
(7)Pursuant to s 48E of the Act you are to be under supervision for the period of 3 years.
(8)Pursuant to s 48K(1) of the Act there will be a judicial monitoring condition. You must appear before me in Melbourne for a review of your compliance with this order on Thursday, 10 September 2020 at 9.30 am.
(9)Pursuant to s 48 of the Act I will impose a residual condition that you must abstain from the consumption of any drugs of dependence as defined in section 3 of the Drugs Poisons and Controlled Substances Act 1981 unless prescribed to you by a registered medical practitioner during the period of the order, that is for 3 years from your release from custody.
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