Director of Public Prosecutions v Allen, John Mackenzie
[2013] VCC 190
•5 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-02331
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN MACKENZIE ALLEN |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2013 | |
DATE OF SENTENCE: | 5 February 2013 | |
CASE MAY BE CITED AS: | DPP v Allen, John Mackenzie | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 190 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: armed robbery – handling stolen goods – possess drug of dependence – cannabis – uplifted summary offences – possess Category A longarm – possess a controlled weapon – possess cartridge ammunition – drug addiction – “ice” – prior criminal convictions – principles of general and specific deterrence, and punishment applied
Legislation Cited: s.75A of the Crimes Act 1958 – s.88 of the Crimes Act 1958 – s.73 of the Drugs, Poisons and Controlled Substances Act 1981 – Firearms Act 1996 – s.145 of the Criminal Procedure Act 2009 – s.14 of the Sentencing Act 1991 – s.6AAA of the Sentencing Act 1991
Cases Cited:
Sentence: total effective sentence of 4 years imprisonment – new non-parole period of 27 months imprisonment commencing from 22 November 2012
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R. Harper | Ms B. Goding (Office of Public Prosecutions) |
| For the Accused | Mr A. Jackson | Mr P. Bloeman (Pica Criminal Lawyers) |
HIS HONOUR:
1 Mr John Mackenzie Allen has pleaded guilty to three charges on Indictment Number C11670425. Also, pursuant to all parties consent and a request under s.145 of the Criminal Procedure Act 2009, he has also pleaded guilty to three summary charges, which have been detailed and filed with this Court.
2 The three charges in the Indictment are one of armed robbery, one of handling stolen goods and one of possession of a drug of dependence. The summary offences are a possess Category A longarm, possess a controlled weapon and possess cartridge ammunition. The relevant penalties for those matters were set out by the learned prosecutor in Exhibit A, Summary of Prosecution Opening, tendered this day.
3 What clearly stands out is the seriousness of the first charge on the Indictment, being one of armed robbery which, pursuant to s.75A of the Crimes Act 1958, has been prescribed as a maximum of twenty-five years by the Parliament of this State. It is trite to say that a penalty of that degree indicates the serious nature with which the community, and Parliament on their behalf, and the Courts instituting Parliament's will, view attacks on citizens in these circumstances. Indeed, it is the reason that led the learned prosecutor to submit that, in the particular case, I should take particular note of the sentencing principles of general deterrence, specific deterrence and also, of course, the necessity for punishment for a crime of this type.
4
As pointed out, the circumstances were most serious. You unfortunately,
Mr Allen, were in a self-induced, crazed state. There is no independent evidence to prove that, in the sense of you having any treatment or any medical opinion for that. However, in the sense that your history has been described to me by your counsel, it is very reminiscent of the type of matters that come before me: a person of limited priors acting in this manner, so induced by the impact of ice.
5 Hence, as described by the victim, you appeared to be crazed. You had a knife. He was in fear of his life. There has been, despite a request, no victim impact filed, however it is not hard to imagine and accept as reality the statement he made, as to the genuine fears he had for his safety. In those circumstances, I accept what is clear from the offence and from the sentence imposed by Parliament, that you have committed a most serious crime.
6 The other offences, both as part of the Indictment and the summary charges, are unfortunately indicative of the life being led by what one might call an "ice marauder." This Court is besieged, unfortunately, in its criminal jurisdiction, by persons acting under the effects of this horrible drug, which has a dramatic effect upon the community. As pointed out by your counsel, one only needs to look at your background to see the spike in offending that has occurred in the period mid-2011 and subsequent to these events, when you were involved in crimes that were subsequently dealt with in the Magistrates' Court.
7 Given the description of the victim, as to your behaviour, an assessment of your priors and an analysis of the types of priors and the circumstances of this attack, despite the lack of any independent confirming authority, I have no doubt, based upon my experience, in accepting that the Court is dealing with a person who was, for a perhaps far more lengthy period of time than advised, but certainly from the period mid-2011 through to at least past the circumstances of these events, on 24 May 2012, dramatically affected by addiction and the effects of the abuse of the addiction to this particular drug.
8 On your behalf, your counsel, as is his wont, realistically put the matters that this Court must take into account, and put your crime in its proper context. From the start, there was no gainsaying the need for a prison sentence and an immediate prison sentence in these circumstances. There can be, and indeed it is realistic of you to be appropriately guided by your counsel, no other disposition.
9 As Mr Jackson submitted, the plea, in the circumstances, essentially effected at committal, renders you liable for a discount because of the utility of that plea and the utilitarian benefit to the community of having this matter disposed of. Mr Jackson also, by an analysis of your background and the offences to which I have already referred, essentially put to me that criminality of this type was really not in context of your life to date. He put to me the fact that in your young life, you have been subjected to particular difficulties.
10 Your mother is here and did not seek to disabuse the Court from the matters put by counsel as to the matters involved with you as you were being raised. You had a particularly limited education. You left school early, however you life shows, despite apparently an addiction to drugs, not ice at this stage, you were able to maintain relatively full employment.
11 It was further put by Mr Jackson that you have, particularly since you had been in gaol following the disposition in the Magistrates' Court on 22 November 2012, become aware of where you are in your life. One would imagine, and I appreciate that you are an intelligent person and you are now thirty-four, you know, from the time you have spent in gaol, how joyful that is.
12 I accept what Mr Jackson has put to me, that you appreciate you are at the crossroads, you are aware that you need to effect and accept your punishment that is coming as a result of your crimes, but you seek to look ahead, to be able to change your life and in particular, to be able to enjoy your young child and your family.
13 There is no reason, based upon your background, for me not to accept that proposition put by Mr Jackson. In the end, only one person is going to show this Court whether that proposition is correct or genuine, and that is you. You either do change your life or the consequences are quite obvious if you get involved in criminality of this type again, and there will be no leniency of any sort.
14 Despite the serious nature of these offences, you do come before the Court with very limited priors for violence, and I take into account all of the matters that have been put to me, and I find, in the circumstances, that it is appropriate to consider a longer than usual period of parole for you, despite the seriousness of this matters and despite accepting the propositions put to me by prosecution counsel as to the serious matters that I have to take into account.
Sentence
15 Taking account of all of those matters, I pronounce sentence as follows.
16 On Charge 1 under the Indictment, that of armed robbery, you are sentenced to a period of three and a half years' gaol.
17 On Charge 2, of handling stolen goods, the items involved being the two rifles, a period of imprisonment of one year.
18 Insofar as Charge 3, the cannabis count, the relevant penalty unit at the time was the sum of $122.14, and I will impose a fine of one penalty unit.
19 Coming to the summary charges, the longarm possession carried a maximum of two years, and it involved two firearms. I impose a period of imprisonment in regard to that of nine months. I bear in mind, in my totality determinations in due course, that essentially it is the same items involved in that as is involved in the sense of the handling charge in the indictment.
20 The second summary offence is the two knives. The maximum penalty for possessing a controlled weapon, in your circumstances, under the Firearms Act 1996, is one year and for that, I impose a penalty of three months imprisonment.
21 For possession of cartridges as a breach of the Firearms Act 1996, the maximum penalty is forty penalty units. I impose a fine of five penalty units, that is five times $122.14, totalling, as I understand it, is $610.70.
22 Looking at the totality of these circumstances, I have determined that it is appropriate that there is a cumulation of sentence in this matter. To the head sentence of three and a half years will be added six months of the sentence on Charge 2, that is the handling stolen goods, making a total effective sentence of four years imprisonment.
23 I have determined that the period you should serve, taking into account all of the matters, as a minimum should be a period of eighteen months imprisonment.
24 To effect that, it is necessary for me to take into account s.14 of the Sentencing Act 1991. It is necessary therefore, given that you are currently serving a sentence, for me to impose a new non-parole period in regard to both offences. That non-parole period will commence on the date of the sentence imposed in the Magistrates' Court, being 22 November 2012, and will be for a period of twenty-seven months from that day. So essentially the maths will run that you have got nine months on the original, and I have added another eighteen months.
25 I am required, under s.6AAA of the Sentencing Act 1991, to indicate what would otherwise have been the penalties imposed upon you, had you not pleaded guilty. In the circumstances of the s.14 minimum period determinations, it is impossible for me to prescribe anything else under such section, but to say the maximum penalty otherwise imposed for these offences would have been a period of six years.
26 In laymen's terms, Mr Allen, from 22 November 2012, you have a minimum period of twenty-seven months to serve, less any administrative reductions that you get.
27 Insofar as that period, it is necessary for me to declare the pre-sentence detention served, which I think has been agreed in regard to this as one hundred and fifty-eight days, and that has not been taken into account prior to this time. So that will apply to the totality of the minimum period or the totality of the maximum period set in this matter.
28 Mr Jackson or Ms Harper, any other matters I need to attend to?
29 MS HARPER: No, Your Honour.
30 MR JACKSON: No, Your Honour.
31 HIS HONOUR: I formally indicate that I have signed the forensic order, and it is necessary for me to tell you, Mr Allen, if you do not know already, that it is necessary for you to undertake that, otherwise the police can come back to the Court to seek an order.
32 I wish you well and let us hope that the remorse that you have expressed and the desire and intent that you have expressed is such that we do not see you in this Court again, all right. Good luck.
33 Thanks, Mr Jackson, Ms Harper.
34 MR JACKSON: If Your Honour pleases.
35 MS HARPER: If Your Honour pleases.
36 HIS HONOUR: Yes, you can remove the prisoner. I am sure Mr Jackson will come down and explain the finer points to you.
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