STATE OF TASMANIA v MITCHELL ANDREW NOEL ALLIE WOOD J
COMMENTS ON PASSING SENTENCE 7 FEBRUARY 2025
Mitchell Andrew Noel Allie was found guilty of a number of crimes relating to 19 March 2021, namely aggravated burglary and stealing; and crimes relating to 21 March 2021, namely aggravated burglary (having offensive weapon or instrument or explosive substance), committing an unlawful act intended to cause bodily harm, two counts of stealing, and the crime of unlawfully setting fire to property. He was jointly charged with Samuel David William Maple with respect to the crimes committed on 21 March 2021.
After the jury found both accused guilty, Mr Allie pleaded guilty to a crime of attempting to interfere with a witness.
On 19 March 2021 at approximately 9:00 am, the defendant entered the complainant’s property at Schofield Drive, Sorell, and looked around outside. He observed three cannabis plants outside and an extension lead going under the house. He stole the cannabis plants and entered the unlocked house. He looked into the complainant’s bedroom where the complainant, Anthony Percy, was in bed. Mr Percy assumed the male was one of his sons and called out, and when no-one answered, he got up and found cupboard doors and drawers open and items missing from his property. The defendant had stolen three sets of car keys from the kitchen bench, being keys to a Hyundai Elantra, a Ford XR6 utility belonging to the complainant, and a Toyota Rav 4 belonging to a friend, Renee Wallace. The vehicles were parked on the property near the house. The defendant had also stolen a Makita 9-inch grinder from a shed on the property.
The evidence in relation to the events of 19 March 2021 was largely uncontested but the evidence regarding the events of 21 March was controversial.
The facts I find to be established beyond reasonable doubt are as follows. On 21 March 2021, the defendant and Samuel Maple obtained a lift to Sorell and were dropped off on the Arthur Highway at the intersection with Schofield Drive at around midday. They then walked a distance along the road to the complainant’s property. They had a plastic bag containing a metal baton, a large Winchester hunting-style knife, and cable ties that formed a pair of handcuffs. Mr Maple carried the plastic bag for most of the time but both men were aware of its contents and shared a common unlawful purpose. Their purpose was to enter the property as trespassers in order to steal and to use violence and the weapons if necessary. Their intention was to steal cannabis and perhaps other property from Mr Percy.
Mr Allie had the car keys he had stolen three days before. He intended to use the car keys to steal one of the motor vehicles and to use it as transport to get away from the property after the criminal escapade.
Once on the property, they entered the front gate where a dummy camera had been placed. It was not plugged in and not recording but the two men did not know that. In any event, they were completely undeterred by the camera. So far as they were concerned, they expected or assumed Mr Percy would not be reporting their conduct to the authorities because he would be concerned about revealing his own illegal activity in relation to cannabis.
The men went to the front door and knocked, and it was opened by the complainant. Mr Maple asked the complainant if he had seen a girl, his daughter, and that they knew she had been coming up there. This was a pretext, an excuse for calling upon the complainant and the violence that ensued.
As the complainant was answering Mr Maple and telling him he did not know her and had no idea what he was talking about, the defendant Mr Allie struck the complainant with the metal baton a number of times. At some point during the violence, the men stepped inside the front door.
Mr Maple punched the complainant, and he fell to the ground. He managed to kick Mr Maple. While the complainant was on the ground, he was stabbed to the back of the neck with the knife which had been in the plastic bag. He was stabbed from behind and did not see who inflicted the wound. It was likely Mr Maple who inflicted the wound, but for sentencing purposes, it is immaterial as both men are responsible, just as Mr Maple is responsible for Mr Allie’s acts of striking the complainant with a metal baton.
The complainant was struck a total of approximately 10 to 15 times to his back, head, and legs. During the violence, he was calling out for help, but the defendants did not stop their attack.
I find Mr Allie is guilty of the crime of committing an unlawful act intended to cause bodily harm as a principal and was criminally responsible for all of the violence as the person who carried out the violence himself or as a co-principal. I note that he is also guilty on the basis of common purpose, s 4 of the Code; i.e. that the crime was a probable consequence of an unlawful purpose shared by the men involving trespassing, stealing, and inflicting violence if necessary to overcome resistance.
After Mr Percy was stabbed and while he was on the ground, a bundle of cash in the amount of $7,000 – $8,000 fell out of his pocket. The defendants stole a large amount of it, grabbing what they could, and then fled the scene of the crime. They left some notes behind or dropped some as they fled, taking approximately $5,000 – $7,000 between them.
The defendant Mr Allie entered the RAV 4 and started the car. The complainant grabbed a blockbuster and approached the men. One of them said to him, “Don’t call the cops, or I’ll kill you”. After they were both in the vehicle, Mr Allie accelerated and drove away at speed. Both men are guilty of stealing the motor vehicle.
Mr Allie drove to Bakers Road at Penna. On the way, he contacted Mr Craig Rusher and offered him $1,200 for him to pick them up and give them a lift.
The Toyota Rav 4 was driven onto a paddock and set alight by Mr Allie. Both Mr Allie and Mr Maple are criminally responsible. They shared a common intention to commit this crime in order to cover up their theft of the car and their link to Mr Percy.
It was early autumn and the paddocks were dry. The fire spread across the paddock and reached some nearby sileage bales on the property, which caught alight. Fortunately, people were on their properties and the fire was put out.
Meanwhile, the complainant’s son was in a shed on the property and received a phone call from his father and found him bleeding in the presence of a neighbour who had heard a commotion.
Mr Percy was taken by ambulance to hospital and presented with his hair and clothing soaked in blood.
He sustained multiple bruises and a large gash on the back of his neck where he was stabbed with the knife.
He had two separate open wounds on his scalp, one on the occipital region, or the back of his head, and one on the parietal region, to the side of his head. Both wounds were approximately five centimetres long. I find these were caused by the application of force with the baton.
Mr Percy also had multiple long bruises across his back, buttocks, and left forearm, which I find were caused by blows inflicted by Mr Allie with the metal baton. These bruises were caused by the application of significant force.
He also had a large haematoma and swelling to the right ankle caused by blunt force trauma.
The neck and head lacerations were cleaned and sutured.
The defendant Mr Allie was interviewed by police on 23 March 2021. He made admissions regarding the burglary and stealing on 19 March, and about returning to the property on 21 March. He admitted some involvement with the baton and that he “could” have struck the complainant with it but denied having anything to do with the stabbing of the complainant with the knife. He asserted there was some initial violence by the complainant who started it, and that he was the aggressor, but I reject that account.
The defendant was charged on complaint and later in November 2022 charged on indictment with the crimes now before the Court.
In June 2023, he was remanded in custody. At the time, he was in a relationship with Chloe Brown, aged 22.
On 29 June 2023, he made a number of phone calls to Ms Brown from prison. He directed her to purchase a card and flowers, and to leave the card and flowers at the complainant’s residence at Schofield Drive. He directed her to write in the card, which he described as a “sorry card”, to ask the complainant to give him a call and to include a phone number.
There was a later telephone call about the flowers and the cost, and he told Ms Brown to “go into the Reject Shop and buy him a classic rose.”
In a subsequent call, again on the same day, Ms Brown told the defendant she had just given the card to her father, and there was a conversation between the defendant and Mr Brown about the location of the house. The defendant also said to Mr Brown, “Ask him if he’s got some dope up there for sale too … rob him.”
Mr Brown and Ms Chloe Brown were captured on CCTV footage in Sorell purchasing the card and flowers on the afternoon of 29 June 2023. Later that same afternoon, CCTV footage from Mr Percy’s residence shows Mr Brown arriving and dropping off the flowers and card before leaving.
There were calls between the defendant and Ms Brown that day regarding the delivery of the card and whether it would be found by the complainant and what he would do.
At approximately 5:30 pm that day, Mr Percy found the flowers and card. The card was in an envelope with ‘Tone’ written on the outside. The printed message on the front of the card read, “You’re heading for new horizons”, and inside, “It won’t be same without you”. Handwritten in the card was, “Hey mate give me a call, cheers”, and a phone number.
At 5:32 pm, there was a call between the defendant and Ms Brown when the defendant stated, “We know he has to go to court but he doesn’t have to, you know”.
Mr Percy asked his niece Rebecca Woods to call the number in the card. She called but did not get a response. She then got a call back from a male, who asked, “Did you get my flowers?” He then said, “Tony’s got a court case coming up, let him know he’s not to show up”.
On 30 June 2023, Ms Brown told the defendant about the phone call but that it was not from the complainant, that the person wanted nothing to do with it, and “sounded very petrified”. The defendant stated at one point that, “If they want nothing to do with it, they probably won’t come to court.”
On 13 July 2023, the defendant participated in a record of interview conducted by police. He denied that he had intended the card and flowers to be delivered to the complainant, and further denied that they were for the purpose of interfering with him as a witness. He lied and said that the card was meant to go to someone else at the end of the road.
By arranging for the delivery of the flowers and card, and the phone call in which the complainant was told not to come to court, the defendant attempted to dissuade Mr Percy from attending court as a witness in the proceeding in which he was a complainant and from giving any evidence.
The nature of the card and the printed message would likely have been viewed by a recipient as somewhat sinister and an implicit threat, but I take into account the defendant was not involved in the selection of the card, and his conduct involved dissuading Mr Percy, and while his conduct would have been intimidating, it is not a case involving the making of threats to the witness.
The crime of attempting to commit interfering with a witness is a serious crime and general deterrence is an important consideration. The conduct has the potential to deter witnesses from attending court and giving evidence, particularly if witnesses have been subject to violent and criminal offending by the perpetrator. The crime is to be regarded seriously because of the risk that offenders may go unpunished and because of its capacity to undermine the operation of the justice system.
The defendant has pleaded guilty and that is a matter which is given weight in mitigation.
The defendant is now aged 31 and he has many prior convictions, particularly for crimes of dishonesty, including burglary, aggravated burglary, and stealing. He received a drug treatment order in 2018 for such offences. In 2020, a sentence of 7 months’ imprisonment was imposed and 13 months from 5 February 2020 for a significant number of crimes of dishonesty, particularly aggravated burglary, stealing, burglary, and motor vehicle stealing, but also other offences. It would appear he committed the crimes before the Court today shortly after his release from prison.
He has one prior conviction for violence committed as an adult involving an offence of common assault in 2013, for which he was sentenced to a term of imprisonment for two months. He has no prior convictions for arson or unlawfully setting fire to property. He also has no prior convictions for perverting the course of justice or similar crimes such as attempting to interfere with a witness.
He has been sentenced to terms of imprisonment since committing these crimes. He served a six-month term of imprisonment from 12 July 2022 and two consecutive terms of imprisonment from 12 January 2023 until 11 April 2023.
He has spent 361 days in custody relating to these crimes. The sentence should be backdated to 12 February 2024.
The defendant’s personal circumstances are to be taken into account. He is in a relationship with Ms Brown, and they have two children. Since the crimes were committed, he spent some time in the community on strict bail conditions and was an inpatient with Velocity Transformations for the purpose of drug rehabilitation for some of that time. He has a longstanding addiction to illicit substances and his addiction lies at the heart of his criminal history.
His addiction is linked to a trauma background and time spent at Ashley Youth Detention Centre. He pursued redress and received compensation which he has put into the purchase of machinery for the purpose of a landscaping business. He hopes to be in a position to build up that business, support his family, and to rid himself of his drug addiction. He found the Velocity program helped him and he made some progress which is encouraging. He has tried to access counselling while in custody but that has not been available to him on remand. It is hoped that that would be available once he has been sentenced. He intends to use his time in prison to participate in and complete programs, such as drug rehabilitation programs.
I consider the defendant has some prospects of reform, particularly if he can remain motivated to address his drug problem, and these prospects should be reflected in the sentence, particularly the non-parole period.
In determining the sentences, there has been some reduction to take into account the cumulative effect of the sentences imposed so that the total period is not disproportionate to his overall criminality. In other words, the sentences would have been longer if they were being dealt with separately.
I have also taken into account other periods of imprisonment served by the defendant since his crimes were committed.
In relation to the crime of committing an unlawful act intended to cause bodily harm, there are serious features of this crime of violence. It was a joint attack by two young men with weapons upon an older, unsuspecting male. It was brazen behaviour carried out in broad daylight on Mr Percy’s property. It was a cowardly attack; he had no opportunity to arm himself or take steps to protect himself against an attack. Neither of the defendants received any injuries but Mr Percy was left badly injured, bleeding and, on their understanding, alone. He was struck by Mr Allie numerous times with a weapon, including to his back. He was also stabbed from behind and Mr Allie was a party to that. The infliction of that knife injury to the neck area could so easily have been fatal.
It was a vicious and sustained attack, and it would have been a terrifying ordeal. As you said in your Arunta call on 20 April, “it was brutal”; “I honestly thought I killed him”.
There was some degree of planning and weapons were taken to the house with the purpose of using them if necessary to overcome resistance to a theft. Once the violence had commenced, the intention of both men was to cause grievous bodily harm. However, I find that according to aspects of the evidence, in particular the Arunta calls that were recorded and played on the trial, that the extent of violence inflicted was not planned.
The crime of committing an unlawful act intended to cause bodily harm is regarded as a very serious crime of violence because of the specific intent involved, in this case an intention to cause grievous bodily harm. Lengthy terms of imprisonment are almost always imposed. General deterrence and denunciation are prominent sentencing objectives. The defendant is not entitled to the mitigation a plea of guilty would have attracted.
In determining the length of the sentence for this crime, I have taken into account the defendant’s limited history of violence. In sentencing for his crimes generally, I take into account the prospect that a lengthy sentence may prove to be a deterrent and that he has some prospects of reform. I will allow the minimum non-parole period.
Mr Allie, I record convictions on the counts on both indictments. In relation to the crime of committing an unlawful act intended to cause bodily harm, aggravated burglary on 21 March, and the count of stealing cash, which are both closely connected to the violence, I impose a global sentence of 4 years’ imprisonment. It is backdated to 12 February 2024.
For the crime of unlawfully setting fire to property and stealing the vehicle, I impose 9 months’ imprisonment.
With respect to the aggravated burglary and stealing committed on 19 March, the defendant has an extensive history of such offending, and this was a particularly brazen act of burglary and dishonesty. I impose 12 months’ imprisonment.
Having regard to totality considerations, the sentence of 9 months for the crime of stealing the vehicle and unlawfully setting fire to property both committed on 21 March 2021 will be entirely concurrent with the four-year term of imprisonment. In relation to the sentence of 12 months’ imprisonment imposed for the crimes committed on 19 March 2021, six months of the 12-month sentence will be concurrent with the four-year term and six months to be served cumulatively.
The result is 4 and a half years’ imprisonment backdated, as I have said.
In relation to the crime of attempting to interfere with a witness, I impose a sentence of 9 months’ imprisonment, six months of which is cumulative to the term of four and a half years’ imprisonment.
The cumulative total is five years. In relation to each sentence of actual and effective imprisonment, I impose the minimum non-parole period. You will be eligible to apply for parole once you have served cumulative non-parole periods amounting to 2 and a half years’ imprisonment. Whether you are granted parole will be a matter for the Parole Board.
Pursuant to s 16 of the Crime (Confiscation of Profits) Act 1993, the metal baton and the Winchester knife are forfeited to the State.
Pursuant to s 68 of the Sentencing Act 1997, I make compensation orders in favour of James Dunbabin and Jake Percy in amounts to be assessed, and I make a further compensation order in the sum of $5,000 in favour of Renee Wallace.