Director of Public Prosecutions v Atkins

[2021] VCC 1171

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 20-01013

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES KYLE ATKINS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Morwell
DATE OF HEARING:
DATE OF SENTENCE:	13 August 2021
CASE MAY BE CITED AS:	DPP v Atkins
MEDIUM NEUTRAL CITATION:	[2021] VCC 1171

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 G. McMaster	Mr M. Taylor
For the Accused	Mr G. Casement with Ms L. Andrews	Mr D. Taylor

1HIS HONOUR:  Thanks, Ms McMaster.  Thanks, Ms Andrews.  James Kyle Atkins, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 years.  That crime carries a maximum penalty of 15 years.  It also attracts a standard sentence of six years.  I am aware of the rules and authorities relating to standard sentences.  It does not change my instinctive sentence.  I use it as a guidepost, and I will identify the objective matters in terms of seriousness of this offence insofar as a range is concerned.

2The charge is rolled up of three incidents, which all occurred during the same period of minutes.  I am well aware again of the authority relating to that.  You pleaded guilty to a settled indictment and must get the benefit for that.  I accept that you certainly now, after a significant number of interventions, have appropriate remorse, and I accept that you now have insight into the offending that occurred.  I also take the view that you should get a significant discount for the utilitarian benefit of that plea of guilty.  Certainly, in these times of COVID – and I am well aware of the decision in Worboyes – your plea of guilty has avoided a necessity from the systems point of view of a Court case.  It has obviously relieved the complainant of giving evidence in a trial which I am sure would have been very distressing for her.

3You have no prior convictions, and you have no subsequent matters as I understand it.  Clearly, you are still a young offender.  You were 20 years of age at the time of the offending, and you are 22 now.  Accordingly, because of the delay – and I lay no blame for that towards anybody – you have lost the capacity to have youth justice as a disposition, and that may well have been the disposition I imposed had I been able to.  Because of the nature of the offending, you will be placed on the sex offenders register, and I advise you the reporting conditions will be for a period of 15 years.  Ms Andrews, you could help my associate get this signed for me.

4MS ANDREWS:  Yes, Your Honour.

5HIS HONOUR:  You can go with her if you would.  I just do not like my associate going to the dock by herself.

6MS ANDREWS:  Thank you.

7HIS HONOUR:  Yes, thanks for that.  A summary of the offending is that you were born in 1998 and were living in the Omeo area.  The complainant in the matter was a student in that area as well and lived nearby.  On or about the - was about early March of 2019 the two of you met through a mutual friend at a function.  Communications occurred after that period of time on Snapchat, and you, on one occasion, having dinner at a local hotel, communicated with her, and the agreement was that you would go to her house.  You went to the house saying that you had broken up with your girlfriend, which was, as I understand it, probably not true.

8In any event, you and the complainant went inside the house.  Her father was told that was the situation, and he was deceived, if I can put it that way, into agreeing that you could stay the night.  The two of you went out on the front deck to talk, and a short while after that, you were told to go to bed.  She changed into a flannel shirt and underpants and went to her bedroom to sleep.  There is some dispute about this, and I am not going to buy into it all.  You said that she texted you.  I have never seen her cross-examined about that. 

9But, in any event, you entered her bedroom and started to talk about the relationship, and there was some conversation about your girlfriend, and the complainant set her alarm on the phone and put it on the bedside table.  You then lay down beside her and put your hand on her leg.  She told you again that she was only 14 years of age.  It is clear that you were always aware that she was only 14 years of age.  You lied about that when you were initially spoken to by various people, but I accept that that was not so much as act of dishonesty on your part as fear of consequence, bearing in mind you are of somewhat limited intellectual capacity, and I will deal with that again later on.

10You then moved on top of her, held her legs apart and had penile‑vaginal intercourse with her.  She said that she was frozen, did not move or say anything.  You withdrew your penis and you then put your penis in her mouth.  She pulled her head away and lay back down.  You then got back on top of her and again put your penis inside her vagina.  You continued until you ejaculated, and it seems common ground that you did not use a condom.  Those three incidents give rise to the roll‑up count as I have indicated; they all occurred within literally seconds of each other, as I understand it, and realistically are the same incident. 

11After that, you got up, pulled your pants up and then started sending Snapchat messages to your girlfriend, which obviously the complainant did not find particularly amusing in these sorts of circumstances, and conceded that you were not telling the truth.  The next day you told the complainant that you could be friends but could not talk.  Some time later, her sister had a conversation with you, and you agreed that you had indeed had sex with the younger girl, and later on you indicated also that you knew she was 14 and you were aware that it was a serious matter to have sex with a 14 year old.

12You were taken to the Omeo Police Station as I have indicated, made denials about all this, but I accept that they were out of fear of consequence and a lack of intellect and not of any inherent sense of dishonesty.  You gave a few different versions, and that seems ultimately the way it all ended up.  You did tell dishonesties or lies insofar as to have this event come about.  You appear to have manipulated the girl.  It was, on this finding at least, briefly premeditated.  There was a breach of the trust of the father.  The sex took place without a condom.  There is a risk of disease and pregnancy; neither of those occurred, obviously, in this particular situation.  And there is a significant age difference.  In your situation, with your limited intellect, your age of 20, I think we could very safely assume was less than that.  And she was 14.  So, whilst the age difference is on the face of it significant, it may well be not as significant as might first appear. 

13This was not intercourse in a relationship situation, and it will be fair to say that in these circumstances the complainant felt used and undoubtedly was.  It is a difficult set of circumstances where standard sentencing relates to an offence such as this because it can vary over an extreme set of circumstances from paedophilic old men to young people making a simple error.  You have no prior convictions and nothing subsequent, that I am, in your situation, prepared to work on the basis that it was a day or two of madness on your part, and I will come back to that again in a moment.

14I have a number of documents before me which you seek to rely upon.  There is a report from a Ms Rogers, which I have already discussed early on, and I have taken no notice of.  I have had you assessed for a Community Corrections Order and have a report from them.  There is also a report from a Ms Cokorilo, a psychologist, and there are also some references, one from, as I understand it, your father and one from your mother. 

15Before I go into those matters, I simply point out that you were 20 years of age at the time.  I would not have given you adult custody had it come before me at the time.  And I think this is a situation in which the matter of President Maxwell in R v Tokava said:

'A sentencing judge should be astute to investigate whether a noncustodial disposition is to be preferred even in the case of a serious offence if, in the long term, the community's interest will be best served by that course.  This Court should seek to promote public understanding of the fact that apart from the interest of the individual and the sought to rehabilitate the importance in itself is the vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime'.

16I do not have to go through the principles of Boulton; I think everybody in the criminal justice system understands that.  But the only other decision I will quote from is R v Bradshaw:

'Parsimony requires sentencing judges to give proper consideration to non-custodial options.  As this Court stated in Boulton' -

and the judge there did not go through Boulton in detail –

'a Community Corrections Order provides a flexible mechanism for imposing a sentence that is both punitive and rehabilitative which can be fashioned to address the particular circumstances of the offender and the causes of the offending and to minimise the risk of re-offending by promoting the offender's rehabilitation.  As the order of seriousness of offending conduct increases, so the likelihood that such a disposition will be appropriate diminishes, but it may remain an option that is open, even in cases of very serious offending.'

17The Crown situation here is that a custodial sentence is appropriate.  The defence position is that a Community Corrections Order is within range.  It is a difficult sentencing matter.  I accept that reasonable minds might differ on what the ultimate outcome of it should be.  I then look at the matters personal to you, and I think I can do them in fairly summary form.  The first thing I note is there is no victim impact statement, and I operate on the basis that the presumption of harm has not been displaced in this particular matter, and I take that no further.

18The materials before me indicate that you had a difficult childhood in terms of school, not because of necessarily any dysfunctional family aspects of it, but your position was that you basically struggled at school.  You have poor literacy skills.  You have apparently never been formally diagnosed, and in fact I had you assessed to see whether there was any intellectual disability, and it would appear that there is not.  But you had a teachers aide throughout your schooling.  You left school at the age of 15.  You commenced a plumbing apprenticeship.  You did that for about three years with a couple of different employers, as I recall, but could not complete it because you were not allowed to attend trade school.  You have also undertaken farm work, and you worked with your father in pest control, and over the years you have experienced bullying.  In more recent times, you have gone to New South Wales and have been working up there, and I will go back to that again in a moment.

19You have had anxiety and depression from the age of 15.  In fact, you have been on anti-depressants previously.  And you have been assessed by Ms Rogers earlier on, although I have got some concerns about her report.  To have an 'extremely severe ' level of depression, anxiety and stress.  It is not a situation here, in my view, where the principles of Verdins would apply in terms of moral culpability.  References from the parents indicated that you always had difficulty in school, that you were a slow learner, that you had difficulty with what you describe as 'big words', and I accept that all those matters are true.

20It is more a situation of a Muldrock set of circumstances, and I am very aware that you have not been found to have an intellectual disability as such, but it is a situation where, I think, in your particular circumstances, bearing in mind your age and your precedence or lack of antecedence, that general and specific deterrents may well be moderated to a certain degree.  In your case, specific deterrents are not a great difficulty.  I would be very surprised if, after this experience and the fear of imprisonment and the circumstances of all this occurring – I would be very, very surprised if you ever offended in this way again.  And your background indicates that you are not of a criminal disposition, and I accept all that as well as accepting that you are indeed a youthful offender.

21The CCO report which I obtained – actually I think I already indicated I have a report of the CCO report, the reference of your parents and the report of Ms Cacari.

22MS ANDREWS: I think that is Dr Vinenza, Your Honour; is that right?

23HIS HONOUR:  Yes.  That is the one with the pre-sentence report.  Yes.  Yes, I think I mentioned that.

24MS ANDREWS: Yes.

25HIS HONOUR:  Yes, that report is of comfort to me.  They say that on this time of assessing, they have had you assessed once before, but had been living in New South Wales and it made it impossible.  They said that you were open and forthcoming with information, that you demonstrated some insight into your offending behaviour, and you now have insight into what caused the offending and the impact of your offending on the victim.  In this situation, I accept this, that since all this has happened, you have formed a stable relationship.  You have come back to Victoria to live.  You are living with your brother, which apparently might not have been possible some time ago.  And you have started to show a greater level of maturity.  You have started again your plumbing apprenticeship, which is to your benefit, as well as to the benefit of the community if you can be rehabilitated.  And you now have the opportunity to complete that qualification.  It is clear that, on your report, you will be able to do work hours alongside that.

26You do not have the difficulties of alcohol abuse.  You do not have the difficulties of illicit substance abuse.  You do now have in these circumstances the benefit of stable environment, a stable work situation, family support and a stable relationship.  Insofar as the report of Ms Cokorilo was concerned, she said that you were, insofar as IQ is concerned, lower end in the borderline range.  And there has been a history of academic and vocational underachievement.  Her opinion was – and this is from March 2021 – that you have a generalised anxiety disorder, persistent depressive disorder and major depressive disorder according to the diagnostic and statistical manual, and that those conditions will result in you having low mood, feelings of worthlessness, helplessness, fear, worry, anxiety and, at times, panic and a whole lot of other associated inabilities such as socialisation, even suicide ideation and the like.

27As I indicated, that does not give rise to Verdins, I do not think, and it does not give rise to Bugmy either.  You are assessed by corrections as low risk, and you are assessed by her as low to moderate.  I accept from her report that custody for you would be very difficult because of your low intellectual powers; you lack the ability to understand and critically adapt in your unfamiliar situations, which could cause undue stress and indeed put you at risk.

28I do not think I really need to go into any more detail.  This seems to be a situation where, as I say, reasonable minds might differ.  The process of your rehabilitation is well underway.  My view is that the risk of you reoffending is low indeed, and I think it is in the interest of justice that you actually not be incarcerated.  I am prepared in these circumstances, where you have had those difficulties in life, where you do have all these things going for you, but even though the offending is of medium range and it is in the objective sense that the matters personal to you in this particular situation, bearing in mind, such as Bradshaw and Toumngeun, that a community disposition is the appropriate one.

29It will be with conviction, which is a punishment in itself.  It will be over a period of three years, which is a significant time.  And it will involve 300 hours of community service work for reasons of rehabilitation.  I am sure this is already well underway.  I will also be putting in the condition that there be programs to reduce the risk of reoffending, and they may well take the view that that requires a sex offenders' program.  And I will leave that to corrections as to whether they think that is necessary.  There seems to be a report, when I have had a pre-sentence report obtained to try and get your intellectual capacity, that the centre who gave that report does not seem to think you need that program, but I will leave that to others to determine. 

30So when I take all those matters into account, even though the sentence may be seen to be lenient by some others, it is one that I can be quite open and honest and say I agonised over, over the last week or so, as to what was appropriate.  I think that is ultimately the appropriate disposition.  It seems to me that if I am wavering as to what I should do, I should err, if I am going to err, in favour of an accused in such circumstances and if that is what I am doing that is what I am doing.

31In any event, if you agree, it will be CCO with the conditions that I have outlined.  What you must understand is that if you breach that CCO by offending of this nature or anything remotely like it, there will only be one option, and that will be adult jail, and it will be a significant period of adult jail.  Insofar as s6AAA is concerned, in this situation, it is a bit meaningless because had this proceeded as a trial, it may well have been with different charges, and you may well have already received the benefit of that.  So I give this 6AAA quote with some trepidation, but I will say 18 months with a 12‑month minimum.  Had you been convicted of a more serious offence, it would be far greater than that.

32All right.  So, do you agree to that CCO?  All right, can you get him to sign please.  He signs it first.  I do not think I mentioned also that I got a reference from his employer which has been tendered as well.  All right, so that order is made, okay.  You have to report to Sunshine within a couple of days, and I am sure Ms Andrews will explain that to you.  What you have really got to understand, Mr Atkins, is that if something like this happens again and you get brought back before me for breaching this, there are no second chances; you will be going out through that door.  Do we fully understand each other?  Okay.  No other orders I need to make.  No.  Thanks for that.  Thanks, Ms McMaster.  Thanks, Ms Andrews; can you thank Mr Casement for me.

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