Director of Public Prosecutions v Allwood

[2016] VCC 1929

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

AT GEELONG
CRIMINAL JURISDICTION

CR 16-00148

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK DALE ALLWOOD

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	12 December 2016
CASE MAY BE CITED AS:	DPP v Allwood
MEDIUM NEUTRAL CITATION:	[2016] VCC 1929

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S.A. Flynn
For the Accused	Mr L.K. Barker

HIS HONOUR:

1Mark Dale Allwood, you are to be sentenced for four charges of armed robbery, one charge of attempting that offence, one charge of carrying a firearm as a prohibited person, one charge of false imprisonment and one charge of theft. 

2The maximum sentences are 25 years imprisonment for armed robbery, 20 years imprisonment for attempted armed robbery, ten years imprisonment for carrying a firearm as a prohibited person, for false imprisonment and for theft.

3You are also to be sentenced for the summary offence of possessing cartridge ammunition without a licence which carries a maximum penalty of 40 penalty units.

4You pleaded guilty in this court on 17 May 2016.  When interviewed by police on 14 October 2015 you exercised your right to silence.  The committal went by hand-up brief on 5 February 2016 after which you pleaded guilty.   There were a number of directions hearings in this court.  Mr Barker, for you, explained that there was a period of investigation into your fitness to plead.  Ultimately, you offered to plead to these offences in May and did so on 17 May.

5You will receive the benefit of your plea of guilty and the level of co-operation that short history of the proceedings shows.  You have facilitated the interests of justice and I accept that you are remorseful.

6At your plea hearing  Ms Flynn, for the Crown, tendered a written prosecution opening, a photograph of the firearm you possessed and used and the victim impact statements of Caitlin Gulli, George Trewin, Noelle Taylor, Jade Gavin, Shandell Hamilton, Melissa Gillett and Renee Grant. 

7Mr Barker, for you,  tendered the neuropsychological report of Jane Lofthouse dated 19 April 2016, a certificate related to courses undertaken on remand custody, results of urine testing conducted in custody and your own letter to the court.  You read that before me.  Mr Barker provided a written outline of the plea submissions. 

8The circumstances of offending are comprehensively set out in the tendered Crown Opening, which is Exhibit A.  My own summary may be relatively short. 

9On 20 October 2015 you were in possession of a .22 calibre sawn-off rifle.  You were heavily using drugs including cocaine, and ice amphetamine;  that, Mr Barker advised, up to one gram per day.  You state poor  recollection of these offences. 

10At about 1 pm you entered the home of Caitlin Gulli, aged 21, in Geelong West.  She was by herself.  You had with you a plastic bag containing groceries, a .22 rifle ammunition and a .22 sawn-off rifle.  It is not alleged that during any of the offending that the gun was loaded.   Caitlin Gulli encountered you in the kitchen area.  You pointed a gun at her and threatened to shoot her.  You demanded her car keys.  She thought you to be drug affected or mentally ill.  She told you that she did not drive and began to cry.   You stole handbags and the contents, a mobile phone, a backpack and jewellery.  At your request Caitlin Gulli let you out the front door.  She borrowed a phone from a nearby road worker and rang the police.  These events make out Charge 1 of armed robbery.

11At about 8.30 that night you went to a carwash in Belmont carrying a gun and a black bag.  You approached Damon Gill-Shea, aged 18, who was there with his car and his friend, Mark Mifsud.  You demanded that he drive you.  You said, "I need to get over the bridge".  You produced a gun.  He complied and you got into the car,  with him at the wheel.  At one point you pointed the gun at him.   He asked and you showed him that it was not loaded. 

12Damien Gill-Shea drove you to a Shell Service Station in Moorabool Street, Geelong.  You spoke to him irrationally about people being after you, again about the bridge and about losing your backpack.  He told you that you did not have it at the car wash.  These events make out Charge 3, false imprisonment.

13At about 4 pm the next day, 13 October, you entered the home of Georgia Trewin, aged 19, in South Geelong.  You came through an open back window.  You had the gun and wore a bandanna, ineffectively covering your face.  You entered Georgia Trewin's room and pointed a gun at her, demanding her wallet.  You stole that containing her Visa and health cards and driving learner's permit.  You threatened to shoot her if she did not give you her car keys.  She did not have a car.    Unconvinced  because you had seen a vehicle parked outside the house, that of Georgia Trewin's flatmate, you forced her to go outside with you also demanding and taking her mobile phone.  You walked some distance with her holding the gun inside your jacket.  You let her go near Skill Stadium, which was close by.  You threatened to "bash her" if she went to police.   Paragraph 15 of the Crown Opening states, in part, "The victim says that throughout the episode the accused was rambling on about being in trouble with bikies, that he had lost everything and that his wife had been kidnapped".  These events make out Charge 4, armed robbery.

14Shortly after you went to a nearby Holden dealership in Moorabool Street, Geelong.  You had a backpack and a gun.  Apprentice mechanic, Max Butcher, had driven a 2014 model utility into the carwash and was at the front of the car.  You pointed the gun at him and told him that he were taking the car.  He complied.  You drove away.  Another employee rang the police.  These events make out Charge 5, armed robbery. 

15You drove the utility to near the Labuan  Square Pharmacy in Norlane,  owned by Narelle Taylor.  You entered holding the gun.  You threatened to shoot a staff member, Jade Gavin.  You demanded cash and then drugs from Narelle Taylor.  You went out with cash and medications.  You left the backpack, containing some cash, behind.   Other victims of the offence were staff members, Melissa Gillett and Shandell Hamilton.  There was cash stolen in the range of $1,212.  These events make out Charge 6,   armed robbery.

16You drove the utility a short distance before abandoning it.  You also left behind the firearm and a number of items, the property stolen during that time. 

17At 5 pm you were at Wendover Street, Norlane.  Renee Grant, aged 25, parked her motor vehicle in front of her home there.  You approached,  demanded her car keys and threatened to shoot her.  You reached into your bag for the gun which, as I have said, you had left behind.  You grabbed Renee Grant in a hug.  You got into and then out of the car,  realising you had no keys.  You attempted to grab them from her.  Renee Grant was distressed.  Her young child was nearby.  She shouted at you and threatened to punch you.  You ran away.  These events make out Charge 7, attempted armed robbery.

18You then went to nearby Takoma Court, Norlane and stole a motor vehicle of Michaela Berenji.   This was Charge 8.  She went towards the car in the carport,  about to drive her 15 year old son to soccer practice.  She threw the keys on to the front seat and went inside to get money.  You ran to the car and drove it away in the nearby presence of both mother and son.  These events make out Charge 8, theft.

19You drove to and abandoned the car in a Geelong shopping car park.  You went to a nearby surf shop and purchased clothing with the money stolen from the pharmacy.   You had taken some of the prescription drugs stolen from the pharmacy and began to feel the effects.  An ambulance was called but you were not co-operative.  You were soon after arrested at Corio Street, Geelong.

20You were not fit for interview.  After a night in hospital you were interviewed.

21Charge 2, a prohibited person carrying a firearm, is made out by your possession of the gun over the period I have described.  You were a prohibited person being the subject of a community corrections order with a supervision condition.  This was imposed at Geelong Magistrates' Court on 12 September 2014.

22As stated, there are seven tendered victim impact statements.  There were other victims.  These statements state in a telling and  similar way the effect of the offending upon these seven people.  There are effects of fear, anxiety, vulnerability and anger.  Their working, academic,  family and social life is affected.  Some have required psychological treatment.  There is a loss of a sense of security and confidence.  For some sleep was affected.  There are financial effects.  Your offences have had considerable victim impact upon a wide range of people.  This is utterly unsurprising,  given what you did and the threat you posed,  particularly when carrying and using  gun as you did.  This victim impact  must be taken into account in my sentence of you.

23I might add that on my interpretation of the Crown summary and evidence, each one of these people against whom you offended  behaved in the face of that threat in a sensible and admirable way. 

24You are a 36 year man presently in remand custody awaiting this  sentence.  Hitherto you have led a badly deprived, damaging and ultimately dysfunctional life.  Mr Barker provided a dramatic account of the deprivations of your upbringing which featured the following. 

25You attended approximately 30 schools.  Your father was a member of a so-called outlaw motorcycle club.  He abused drugs and was violent toward your mother and the children.  You are the second of three children.  You mother suffered serious mental health problems. 

26The situation became worse upon the death of the youngest child, a girl, at two months.  Your mother went into inpatient care for a period.  Your father's drug abuse increased. 

27Mr Barker recounted an event when you were young.  You came home, at five, to find your mother very badly beaten by your father.  There followed periods in refuges and a move to Perth before your mother and the children returned to Geelong. 

28You lived with relatives which led to prolonged sexual abuse of you and other children in the extended family by a friend of your uncle.  That man is presently in prison.  Your mother drank heavily.  Ultimately, when you were a teenager you lived for about two years in a boys' home in East Geelong. 

29In the context of all of this school was at most stages minimal.  You began using drugs in teenage years.  You first came before the court at 16.  At that age you reunited with your father and began for a time a relatively consistent work pattern.   You worked as a truck detailer, slaughterman and otherwise in the meat industry. However, you also smoked cannabis heavily when with your father. 

30In the context of a damaging and ultimately failed relationship with a young woman,  you began using ice and amphetamine.  You became addicted.  You do not appear to have worked significantly for several years.   Arising out of treatment for serious injuries suffered in a 2006 motor cycle accident you have also developed addiction to prescription drugs.  In 2009 you were shot in the ankle by a drug dealer.

31There were further dysfunctional relationships including,  more recently,  the former partner of your brother.  Mr Barker presented him as a violent abuser of methylamphetamine.   There were periods of heavy drug use, seemingly reactive to damaging events within your growingly chaotic existence.   You were first sent to prison in 2013.  It was upon release from that sentence that you began the  relationship with your brother's partner.  That became dysfunctional in the context of drug abuse and her attempted suicide. 

32Your criminal record filed with the indictment stated 16 prior court appearances between November 2001 and September 2014. Offences of dishonesty and secondary to that, multiple drug offences predominate.  There are some but,  in the range or a proportion of things not many offences of violence. There are prior appearances for weapon offences, most notably possession of a controlled weapon.  There is some duplication arising, it seems, out of non-compliance or further offending whilst on community based orders.  A fair interpretation of your criminal history is that of mainly dishonest offending related at least in part to drug use and dependence.   There is not violent offending remotely approaching the seriousness of what you are to be sentenced for today. 

33As stated, you were sentenced to prison in 2013.  A chronology of your incarceration since then was attempted during the plea.  It seems that you were released on parole in July 2013.  That was cancelled in December of that year.  You were released in late February 2014.  You returned to custody, it seems on remand, in August.  After a short sentence imposed on 20 September you were released but subject to a community corrections order on 11 December 2014.  That was imposed for two years.  These offences were committed during that period.

34It is clear that you relapsed into drug use.  Mr Barker states in his outline that this occurred in the face of difficulties finding accommodation and work.  Your relationship with your brother's ex-partner was dysfunctional.  You began to use and by October, Mr Barker describes you as " drug addled",  using a number of drugs but including ice amphetamine.  He said that you contemplated suicide. 

35The observations of you by various victims support that you were using drugs and markedly affected by them.  In that regard Mr Barker pointed to what he termed bizarre aspects of the offending.  You took your groceries into the home in Charge 1;  you did not realise that you did not have a firearm in Charge 7;  You left the backpack, with its contents of cash, at the pharmacy in Charge 6.

36That you have suffered head injuries during your life, including in the 2006 motor cycle accident, has led to a neuropsychological assessment by Ms Lofthouse.  As stated, her report is tendered.  That report uses terms such as, "a mild level of intellectual impairment".   This was raised at the plea hearing.  In light of your performance in her testing I do not see this as meaning intellectual disability in the formal or established sense.  In fact, Ms Lofthouse disavows this at p.13. 

37In terms of intellectual capacity and/or effects of acquired brain injury the Verdins principles are  not relevant.  I did not see Mr Barker as arguing for that. 

38Ms Lofthouse diagnoses symptoms of depression, stress and anxiety. She found no indication of psychotic illness.

39This was extremely serious offending.  In an intoxicated and irrational state you committed serious offences and,  in so doing,  badly threatened and placed in great fear a number of people.   You specifically threatened to shoot som.  It was extensive and intensive and of course involved the use of a firearm.  That was not loaded, but it is worth noting that you had ammunition.   You offended in public situations.  You also offended upon people at and in their homes and workplaces.  They were all vulnerable victims.  There are several of them and they have been very considerably affected. 

40Your intoxication is not mitigating.  It may have been the experience worse for some, however, I make no finding on that.  You have a long criminal history.

41The circumstances here therefore make relevant the sentencing considerations and purposes of your moral culpability, both general and specific deterrence, the need for strong condemnation of what you did and for proportionate punishment.  The sentencing purpose of community protection is also raised.  There must be a substantial term of imprisonment.

42I do not think this was raised.  I have presumed that he is not to be sentenced as a serious offender as part of armed robberies.

43MS FLYNN:  Sorry, Your Honour, it wasn't raised.  If I might just take a quick opportunity.

44HIS HONOUR:  (Indistinct).

45MS FLYNN:  Yes.

46HIS HONOUR:  I would be disinclined, even if he was, to impose a longer than proportionate period and I would only partially cumulate as I have.  But if he is, it needs to be recorded.

47MS FLYNN:  Yes, if Your Honour would just pardon me and perhaps ‑ ‑ ‑

48HIS HONOUR:  Yes, tell me at the end if you like.

49MS FLYNN:  Yes, thank you, Your Honour.

50HIS HONOUR:  I also take into account moderating factors, matters that I should consider in a way to reduce your sentence compared perhaps to what the objectively very serious circumstances require.  Those moderating factors include the following.

51(1)  Your plea of guilty and co-operation.  Your letter to the court expresses remorse.  I accept that you are remorseful. 

52(2)   Your personal history and circumstances.  Your early life was unusually and markedly deprived.  It was damaging to you.  It is relevant to your sentence.  As I have said, your intoxication on the days of offending offers no mitigation; however, your early life made you vulnerable to drug use and you began to abuse drugs when young and vulnerable.  Your drug dependence should also be seen in that sympathetic light.

53(3)    Your letter expresses the wish to rehabilitate.  I accept that you are genuine.  No-one could wish for a return to the situation you experienced leading to the offences.  However, it would be naïve not to be guarded about what will happen when you leave prison  I do not utterly discount your prospects for rehabilitation, at 36.  You will of course  depend on  abstinence from drugs.  You will need assistance for that and I would say, pro-social accommodation if and when paroled.  I do not seek to crush your hopes for such rehabilitation.

54(4)   I must apply the principles of totality.  I shall order partial cumulation between the individual  sentences in order to do that.  However, there must also be some significant cumulation in order to reflect the individual circumstances and, for example, the individual impact on the victims. 

55I take these moderating factors into account and I have attempted to give them proper weight,  balanced against the serious and adverse considerations I have earlier identified.  Ultimately, there must be a sentence which  reflects  the serious criminality of what you did. 

56I propose sentencing now.  Do you want to raise anything about ‑ ‑ ‑

57MS FLYNN: Your Honour, I am sorry, I am just trying to look up that section. Immediately schedule 1 of the Sentencing Act, clause 3, which deals with serious violent offences, doesn't immediately include armed robbery.

58HIS HONOUR:  Well, that would be ‑ ‑ ‑

59MS FLYNN:  I might just make some enquiries again about that.  All it would require would be a declaration on the record.

60HIS HONOUR:  I think that is right.

61MS FLYNN:  I'm not seeking any sort of disproportionate sentence.

62HIS HONOUR:  That is right.  I think the apparent criminality requires a substantial gaol sentence.'

63MS FLYNN:  Yes.

64HIS HONOUR:  You would not go beyond that because if he is sentenced as a serious offender so I will proceed to sentence.

65MS FLYNN:  Thank you, Your Honour.

66HIS HONOUR:  That applies to questions of cumulation as well.

67After considering and weighing what I see are the relevant matters I sentence you as follows.  Stand up please.

68On Charge 1, armed robbery, I sentence you to four years imprisonment.

69On Charge 2, carrying a firearm as a prohibited person, you are sentenced to two years imprisonment.

70On Charge 3, false imprisonment, you are sentenced to two and a half years imprisonment.

71On Charge 4, armed robbery, you are sentenced to four and a half years imprisonment.

72On Charge 5, armed robbery, you are sentenced to four years imprisonment.

73On Charge 6, armed robbery, you are sentenced to four and a half years imprisonment.

74On Charge 7, attempted armed robbery, you are sentenced to three years imprisonment.

75On Charge 8, theft, you are sentenced to 18 months imprisonment. 

76On the summary offence of possessing cartridge ammunition without licence, you are convicted and fined $100. 

77I order partial cumulation this way.  Eight months of the sentence for Charge 1, four months of the sentence for Charge 2, four months of the sentence for Charge 3, six months for the sentence for Charge 5, eight months for the sentence for Charge 6, five months for the sentence for Charge 7 and three months for the sentence for Charge 8 shall be served cumulatively upon the sentence for Charge 4 and upon each other. 

78That is a total effective sentence of seven years and eight months. 

79I set a minimum term for eligibility for parole of five years.  I declare under s.18, 375 days of pre-sentence detention. 

80Had you not pleaded guilty I would have imposed a sentence of ten years with a minimum of five years. 

81What else do I need to do?

82MS FLYNN:  Your Honour, there's an application for forfeiture and 464. 

83HIS HONOUR:  Sit down please.  I usually ask this question when confronted with 16 prior court appearances, you ask why a sample, which must have been taken during that period of time, has not been included on the database.

84MS FLYNN:  Your Honour, I ‑ ‑ ‑

85HIS HONOUR:  Have you got instructions about that?

86MS FLYNN:  To give my standard answer which is that the instructors check with the relevant person at the database to see if an offender has been profiled, or if that profile has been retained, and apparently that result has come back as they do not have his DNA on the system.  It might reflect, Your Honour, that as Your Honour said in your sentencing remarks, there's not a huge amount of violent type offences.  They're more dishonesty type offences and sometimes orders are not sought in relation to that type of prior offending, Your Honour.

87HIS HONOUR:  We do not know the answer.  I will make the order,  It is self-evident that this offending is so serious that it requires the order to be made. 

88At a time to be arranged, Mr Allwood, you will be required to supply a sample of saliva by a cotton swab inside your mouth.  If you co-operate in that, that is the end of it.  If you do not, a blood sample may be taken by injection and reasonable force used.  I will sign that order now.

89(Orders signed.)

90HIS HONOUR:  The forfeiture order I am about to sign relates to the gun and the ammunition. 

91MS FLYNN:  Yes, thank you, Your Honour.

92HIS HONOUR:  Yes.  Have we solved the ‑ ‑ ‑

93MS FLYNN:  We haven't, I just asked Mr Thompson if he would mind just going and having a look at that issue while the next sentence proceeds, if that's acceptable to Your Honour.  As I said ‑ ‑ ‑

94HIS HONOUR:  It will be the same order.  If he is a serious violent offender I should record that in the sentencing records.

95MS FLYNN:  Yes.

96HIS HONOUR:  I will not bring him back to court in order to do that if I have to. 

97MS FLYNN:  Thank you, Your Honour.

98HIS HONOUR:  Mr Barker, is that satisfactory to you?

99MR BARKER:  Yes, Your Honour, that is totally satisfactory to me, sir, and can I say before Mr Allwood is taken away, that - and I think I've told him this previously - in every matter where a person is sentenced and on legal aid I am required to write an advice and he should get a copy of that in the next week or so. 

100HIS HONOUR:  Yes, that reflects one of the difficulties of doing these things on video link.  That is matter that you should have been able to speak to your client in privacy  but I understand what you are trying to say. 

101All right, Mr Allwood can be taken into custody. 

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