Director of Public Prosecutions v Atkins

[2023] VCC 2028

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00361

DIRECTOR OF PUBLIC PROSECUTIONS

sentenc

v

REACE ATKINS

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JUDGE:	JUDGE DAWES
WHERE HELD:	Ballarat
DATE OF HEARING:	16 October 2023
DATE OF SENTENCE:	03 November 2023
CASE MAY BE CITED AS:	DPP v Atkins
MEDIUM NEUTRAL CITATION:	[2023] VCC 2028

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:   Intentionally causing serious injury

Legislation Cited:  Mental Health Act 2014 (Vic)

Cases Cited:Rv Verdins& Ors [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169

Sentence:  6 years’ imprisonment

NPP 3 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr A. Pyne	Adrian Paull Criminal Lawyers

HER HONOUR:

1.Reace Atkins, you have pleaded guilty to one charge of intentionally causing serious injury that was committed on 17 February 2022. The maximum penalty for this offence is 20 years' imprisonment.

2.At the relevant time, you were 30 years of age and the victim was 40 years of age. The circumstances of your offending have been provided in the summary of prosecution opening. It is agreed to be an accurate account of events. A general summary of the facts is as follows:

3.The victim resided at a rural property in Smythesdale. She was on her own at home and at about 4.15 pm, she entered the pen outside to feed her chickens. As she stood with her back towards the gate, she heard the gate latch click. She stepped forward to see who was there and saw you. You took a step forward, shut the gate behind you and asked 'Aw, did I startle you?'. You were two metres away from her and the victim froze, as she did not know you.

4.You pulled a large knife from the front of your pants. It was approximately 25 centimetres in length, with a wooden handle. The blade was curved with a pointed tip. You walked towards the victim and she screamed 'What are you doing?'. You raised the knife and thrust it downwards, toward the victim's head. She raised her left arm to protect herself and you sliced her left wrist.

5.The victim continued to scream for help and tried to grab the knife. You overpowered her and thrust the knife again towards her head, cutting it on the left side, above her ear. The victim is unsure how many times she was stabbed.

6.She asked 'What do you want? I have motorbikes in the shed, I'll give you anything you want to leave me alone'.  You responded, 'I don't want anything'.

7.The victim held the left sleeve of your jacket and you yelled at her to let go, which she did. You walked away and left the pen, before you turned around and told her, 'I live next door' and pointed towards your house. You then returned home.

8.After approximately 30 seconds, the victim left the pen. When she opened the gate, she realised that her arm was injured. She ran towards another neighbour's house, although no one was home. She ran up the road until she flagged down a car and told the driver that she had been stabbed. The driver did not want his children who were in the car to see her injuries, so he told her to knock on a house to get help, which she did. He attempted to phone the police.

9.The occupant of the house assisted the victim to control her bleeding, before driving her towards town to access phone reception. On the way, they passed a police car. The police stopped and immediately called an ambulance.

10.The victim was taken by helicopter from the local oval to the Royal Melbourne Hospital where she underwent urgent surgery for haemorrhage control on her left wrist.

11.Once you returned home, you placed the knife in the kitchen sink and changed your shorts. At approximately 5 pm, you left a message on your mother's mobile phone saying 'please answer Mum, I tried to kill someone'.

12.Your mother was driving at the time and pulled over to call you. You did not answer, but immediately called back, saying 'Please Mum, I need you to come home… I've tried to kill the neighbour… please come home right now, I need you to help me, please come home'.

13.Your mother returned home and found you in a very distressed and agitated state. Police soon arrived; your mother met them and said that you were in the backyard, that you were schizophrenic, and that you were experiencing 'a psychotic episode'. You co‑operated with the police and were arrested without further incident before you were transported to the Ballarat Base Hospital for assessment.

14.On 20 June 2022, Dr Nicola Cunningham reviewed the victim's medical documents from her admission to the Royal Melbourne Hospital and photographs taken after surgery. The injuries that were suffered by the victim include:

·a large 'Z' shaped sutured wound on the flexor side of the left wrist;

·sutured wound over the left upper, outer arm;

·sutured wounds on the 2nd, 3^rd& 4th fingertip pulps of the right hand;

·healing wound on the 5th fingertip pulp of the right hand;

·sutured wound obscured by hair on the left scalp;

·small, scabbed wound behind the left ear lobe;

·small wound adjacent to the right nostril;

·scabbed wound with surrounding bruising on the right upper breast;

·scabbed wound below the left breast with adjacent bruising;

·scabbed linear wound over the upper mid-abdomen;

·bruise over the right lower abdomen;

·faint parallel markings over the mid-back overlying bruising;

·large bruise and parallel linear markings over the right lower back;

·three linear scabbed wounds over the right inner thigh.

15.In Dr Cunningham's opinion:

·the victim sustained significant injuries to her upper left limb, resulting in loss of blood supply, loss of nerve supply and loss of muscle function to her left hand. She required emergency surgery to save her hand;

·arterial injuries, if not controlled and surgically repaired, would continue to bleed, resulting in haemorrhagic shock, and even death;

·the victim also sustained wounds to the fingers of her right hand that required repair;

·the victim had scabbed wounds and bruises over her scalp, face, chest, abdomen, back and right thigh. The scalp wound required sutures. The remaining wounds did not require surgical intervention.

16.The victim has provided a victim impact statement dated 13 October 2023. She attended your plea hearing and read it to the court. She has articulated the significant and ongoing trauma, insecurity and distress that have resulted from your conduct. She thought that her life would end when you attacked her. She received immediate emergency surgery. She requires further surgery to improve her hand, which still has limited function. She remains emotionally distraught by this experience. It has challenged her perception of safety at home and she is unable to remain there on her own at any time. She writes that although she is 'grateful to be alive', your attack continues to affect both her and her family.

17.The impact of this random attack on the victim has been extreme. I take the victim impact statement into account.

18.It is conceded by your counsel that you committed a serious offence and that your offending had clear aggravating factors, namely:

·the seriousness of the injury caused is above the mid-range for this offence;

·the victim was vulnerable as she was alone and outside on her property;

·you entered her property without permission;

·you were armed with a knife and used the weapon to attack the victim multiple times;

·the objective factors of the offending reveal a serious example of this offence.

19.I agree with these concessions.

20.I turn now to your personal circumstances. You were born in July 1991, are not currently in a relationship and have no children. You have lived in Scarsdale throughout your life, being part of a sibship of three. You had a good relationship with your parents and have always resided with your mother. Your father died of cancer in January 2021. I am told that you were sexually abused in the past, although the report is unclear as you were guarded when disclosing this. It is also unclear as to whether this has any connection with your current psychosis.

21.You attended primary and secondary school in the local area to Year 11. You completed an apprenticeship at the local TAFE and worked as a fitter and turner for some years. You had a good relationship with your family and friends. You dedicated yourself to your employment, including work at a fibro concreting company, as well as in your trade.

22.You are someone of previous good character. You have no prior convictions. You are entitled to call upon that good character on your plea.

23.You have been treated for psychotic illness since 2013, when you became unwell and experienced a steady decline. You were later diagnosed with schizophrenia. You were unable to work, became isolated and dependant on others. You have been treated with various forms of medication to manage your mental illness throughout the years. At the relevant time, you were in receipt of a disability support pension.

24.At the age of 22, you suffered issues including panic attacks, auditory and visual hallucinations and paranoid thoughts. In 2014, you were admitted to hospital for four weeks to manage your psychotic symptoms. Your circumstances improved although later that year you experienced delusions and serious symptoms of psychosis again with overwhelming thoughts of self-harm. You were again treated by mental health services in March 2015. In November 2018, an assessment order was made under the Mental Health Act[1] due to a deterioration in your mental state. In 2020, you were psychiatrically unwell and required multiple admissions.

[1] Mental Health Act 2014 (Vic)

25.After the death of your father, you became more withdrawn and began to drink heavily. You cut your wrists in November 2021 and self-harmed again by taking an overdose on 31 December 2021. You have been unable to express a clear motivation for this. You were admitted into the acute adult psychiatric unit at the Ballarat Base Hospital for five weeks. Your offending occurred just one week after you were discharged. I will refer to your recent medical treatment in more detail in a moment.

26.There is no dispute that at the time of your offending you were acutely unwell and your motivation for this incident is found in your psychosis. Your mental state is the most important mitigatory factor in your plea.

27.A detailed medical assessment of you was undertaken by consultant forensic psychiatrist, Associate Professor Danny Sullivan on 10 July 2023. He also had access to your medical records obtained from Ballarat Health Services.

28.He has provided a report to the court dated 27 July 2023 which includes a summary of your personal and psychiatric history. In the course of your assessment, you were polite and co‑operative. At times, the content of your speech was vague. Cognitively, you appeared to be in the low-average to borderline range of intellect and only partially insightful as to the unreality of your experiences. You reported that you were first diagnosed with schizophrenia at around the age of 22.

29.In the past you have met criteria for a severe substance use disorder involving tobacco, alcohol and cannabis. It appears that you were able to cease your cannabis and alcohol use prior to this incident and you remain abstinent while in custody. There is no indication that any substance use was associated with this offence.

30.Associate Professor Sullivan agrees with your diagnosis of schizophrenia. Your symptoms have persisted despite adequate trials of medication and your illness is considered to be treatment resistant. There is no clear indication of premorbid personality disorder and you do not appear to hold anti-social values.

31.Medical records confirm that you were admitted to the Ballarat Base Hospital from 4 January to 10 February 2022 due to your deteriorated mental state. It was not associated with substance use or non-compliance with medication. You were prescribed a long acting injected anti-psychotic in an appropriate dosage at the time. During your admission you were tried on clozapine, an often effective treatment for treatment resistant schizophrenia. Unfortunately, this trial was cut short due to adverse effects from the medication. As a result, you were commenced on an alternative anti‑psychotic and discharged with the intention of placing you in a rehabilitation setting to improve your psychosocial functioning. This did not occur due to a false-positive COVID test and you returned home.

32.At the time of the offence, it is not clear whether you were compliant with an increase in your medication, brexpiprazole, over a few weeks. Associate Professor Sullivan noted that following the cessation of clozapine, there is a markedly increased incidence of psychotic relapse. You were smoking cigarettes heavily which may have increased the metabolism of medication and rendered it less efficient.

33.In Associate Professor Sullivan's opinion:

·at the time of this offence, you were acutely psychotic. Contributing factors were not clearly associated with intentional non-compliance or substance use. There may have been an association with the cessation of clozapine, although it had not been used for long. 

·there was no indication of premeditation or of specific antagonism towards the neighbour, who was an unfortunate victim;

·the intent of the assault was obscured, in that the harm inflicted upon the victim did not appear to be personal or specific, and indeed it could have been any victim. She appeared chosen for proximity rather than any other reason;

·you were unable to exercise sound judgement at the time of the offence;

·there is a strong causal nexus between acute psychosis related to schizophrenia and the alleged offence. This prevented you from clearly thinking and making calm and rational choices;

·you are unable to sensibly explain your motivation for the attack. It appears that in some confused and psychotic manner, you thought it would assist you to get help or make your mother help you more; you may have thought that you were in a movie or that this was part of a movie, or you may have thought that by harming someone you would be imprisoned and so you would obtain help there;

·at the time of offending you were not fully aware of the wrongfulness of the conduct. However, at a basic level you did understand that you were doing the wrong thing, as you considered that this may result in your imprisonment, an outcome to which you were not adverse, but was ill-considered;

·your motivation was psychotic;

·you remain psychotic and this is consistent with a diagnosis of treatment resistant schizophrenia. Your current symptoms have improved and this is likely related to abstinence from tobacco use, compliance with medication and the routine and stability of prison. You have ongoing access to medication and psychological assistance;

·although incarceration might potentially weigh more heavily on you, particularly if you were non-compliant with medication, it is not impacting negatively upon your mental health or well-being at the moment. You report some mild paranoia associated with the environment;

·you require ongoing anti-psychotic medication indefinitely. You have a reasonable response to the current long-acting injectable anti-psychotic medication. You may benefit from augmentation with further oral medication apart from olanzapine;

·Clozapine remains the most likely medication to result in an amelioration of your condition and attenuation (loss of strength) of symptoms. It would be ideal if you had the opportunity to participate once more in a trial of this drug;

·a protracted stay in hospital may be available, when there is an increase in the number of forensic beds. However, you may not meet the criteria for hospital admission compared to the more compelling needs of others. You are compliant with oral medication in custody;

·you require ongoing abstinence from substance use. You would benefit from some drug and alcohol intervention before you return to the community;

·you will require compliance with a prescribed anti-psychotic medication to be mandated or compelled under mental health legislation;

·prior to you release, a further psychiatric assessment to update your risk assessment and consider how best to meet outstanding treatment needs to be done; and

·no offence-specific programs would be of benefit to you. You would, however, benefit from mental health programs aimed at insight, compliance and a lifestyle directed at optimising mental health.

34.Your counsel relies on Associate Professor Sullivan's psychiatric evidence which I have set out in these reasons. It is submitted that limbs 1, 3 and 4 of Verdins[2] are enlivened. Accordingly, the reduction in your moral culpability is very significant as your mental impairment impacted your capacity to exercise appropriate judgment. Further, you are not an appropriate vehicle for either general or specific deterrence. The principles of Verdins have full effect in light of the strong causal nexus between your acute psychosis related to schizophrenia and your offending.

[2]        Rv Verdins& Ors [2007] VSCA 102

35.I have found Associate Professor Sullivan's report and his opinion to be of great assistance in this difficult sentencing exercise. I note that he also indicated that your mental state at the time of offending fell short of establishing a defence of mental impairment. By your plea, you accept criminal responsibility for your grave offending.

36.The prosecution does not take issue with this submission, in light of the compelling psychiatric evidence. Given your symptomology at the time, the related principles are of less relevance when formulating the appropriate disposition.

37.The objective circumstances of your offending bespeak mental illness. While you may have been appreciative of the seriousness of this act, your mental impairment provides the motivation for your offending. You thought that it would be beneficial for you to receive help in custody. Your mental impairment explains what is otherwise inexplicable.

38.I will sentence you on the basis that your mental illness is substantially causally connected to your offending. I accept that the relevant Verdins principles have application and significantly moderate the relevant sentencing considerations. Your moral culpability is diminished. The need for general and specific deterrence is also diminished. You are not a suitable subject for any significant impact arising from these sentencing considerations.

39.However, protection of the community and rehabilitation remain important considerations. Ultimately, I am obliged to impose a sentence that is proportionate to the gravity of your offending.

40.As Associate Professor Sullivan has outlined, it is important to determine how your mental state is now and what future treatment is required. Your psychotic condition is ongoing and enduring, although it appears to be better managed than at the relevant time. It is of concern that you are described as 'treatment resistant'. Further, you had been in custody for almost 18 months and compliant with treatment during that time. He still, however, described you as psychotic. I am cautious of your prospects in light of his opinion.

41.Your rehabilitation depends on your ability to improve with future treatment. You have suffered mental illness for approximately 10 years, yet you have had no previous contact with the criminal justice system. You maintain the strong support of your mother and have been compliant with medication while incarcerated. Associate Professor Sullivan's recommendation that you would benefit from a protracted hospital stay if available, would be highly beneficial in order to determine, augment and manage your most effective treatment. You require ongoing anti‑psychotic medication indefinitely. A copy of this report and these sentencing reasons will be provided to Corrections, if required.

42.The principle of community protection is best served by assisting your rehabilitation. The ongoing management of your mental health treatment provides the most effective protection for the community, as well as assisting your prospects for rehabilitation. It may be that your compliance with future treatment can be augmented by a compulsory treatment order, if required.

43.Upon your arrest, no formal interview was conducted. You were taken into hospital for a short time, discharged into police custody the following day and have remained there since that time. You were charged with three offences namely, attempted murder, intentionally causing serious injury and recklessly causing serious injury. The prosecution maintained the charge of attempted murder until shortly prior to 9 March 2023, when you pleaded guilty to the current charge. In those circumstances, I accept that your plea was entered at the earliest opportunity, after the more serious offence was withdrawn. Consideration was also given as to whether your case would be suitable for a Crimes (Mental Impairment and Unfitness to be Tried) Act hearing. There is no suggestion that there has been a deliberate delay in the resolution of this case.

44.You are entitled to receive a substantial benefit for your guilty plea. It has a highly significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial and spared the victim the ordeal of giving evidence at any stage.  You have facilitated the efficient administration of justice and are entitled to a benefit for that. The utilitarian benefit of your plea is to be enhanced by the fact that Worboyes[3] considerations were engaged at the time. This results in a more pronounced amelioration of sentence than at another time.

[3]        Worboyes v The Queen [2021] VSCA 169

45.Your plea of guilty shows that you have accepted responsibility for your criminal conduct. In light of your mental health issues, it is difficult to discern evidence of remorse.

46.I take into account that measures taken by Corrections to deal with the COVID‑19 pandemic have added to your hardship in custody, particularly as you have no criminal history and this is the first time you have been incarcerated. You were subject to more onerous conditions, including time in quarantine. You have spent an extensive period on remand. The hardship which occurred as a result of the pandemic justifies a sentencing benefit. I take that into account.

47.You now have contact with other prisoners. Fortunately, you are able to work as a unit billet and have become a more settled prisoner. You have also completed some courses, including food preparation. While in custody, you have previously felt concern for your safety. Although you have not been diagnosed with depression, you have sought assistance given your current circumstances.

48.When considering sentence in this matter I am aware that this offence is a category 2 offence pursuant to the Sentencing Act.[4] Your counsel submits that exception 5(2H)(c)(i) is clearly made out, as you had 'impaired mental functioning that is causally linked to the commission of the offence and substantially reduces your culpability’. However, he has not sought to persuade the court that this exception ought be engaged, given the seriousness of this incident. It is conceded that a term of imprisonment is the only appropriate disposition for your offending, although it is submitted that a longer period on parole should be imposed given your circumstances.

[4]        Sentencing Act 1991 (Vic) s 5(2H)(e)

49.The prosecution agrees that a term of imprisonment is required and that a prolonged period on parole would be both in your own interest as well as the community's.

50.I take into account the maximum penalty for this offence and current sentencing practices. Balancing all of the above factors as best I can, I sentence you to six years' imprisonment and fix a non-parole period of three years.

51.I enter in the records of the court that you have served 624 days by way of pre‑sentence detention.

52.I make the order for disposal, which is not opposed.

53.The declaration that I make under s6AAA is had the matter not proceeded as a plea of guilty I would have imposed a sentence of seven and a half years with a minimum of four years' imprisonment.

54.MR PYNE:  As the court pleases.

55.HER HONOUR:  Thank you. Are any further orders, Mr Brown?

56.MR BROWN:  No.

57.HER HONOUR:  Thank you very much, I'll leave the Bench.

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