Director of Public Prosecutions v Atkinson
[2020] VCC 1708
•22 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
KOORI COURT
CR 19-02496
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REUBEN ATKINSON |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 October 2020 | |
DATE OF SENTENCE: | 22 October 2020 | |
CASE MAY BE CITED AS: | DPP v Atkinson | |
MEDIUM NEUTRAL CITATION: | [2020] VCC | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – aggravated burglary – attempted obtain property by deception – theft – attempted aggravated carjacking – intentionally cause injury with related summary charge of trespass – transferred pursuant to s.145 of the Criminal Procedure Act 2009 – Koori Court Division – sentencing conversation – mitigation of penalty – term of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Harrold | Abby Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr C. Baker | Robyn Greensill |
HER HONOUR:
1 Reuben Atkinson, you have pleaded guilty before me to one charge of theft, one charge of attempt to obtain property by deception, one charge of aggravated burglary, one charge of attempted aggravated carjacking and one charge of intentionally cause injury. In addition, you have pleaded guilty to one summary charge of trespass that was transferred pursuant to s.145 of the Criminal Procedure Act 2009.
2 The offending relates to incidents that occurred on 5 and 6 August 2019.
3 I will now sentence you on the basis of the Summary of Prosecution Opening that was set out in the opening dated 15 May 2020 that was exhibited at the plea hearing.
4 You admitted your prior criminal history and that spans a period from 18 November 2014 until 19 June 2019. There are five previous court appearances that relate to drug-related offending and driving offences, as well as crimes of violence against a person.
5 In the past, courts have extended you a degree of leniency through the dispositions imposed namely without conviction Community Correction Orders and other Community Correction Crders with conviction.
6 On 19 June 2019, at Broadmeadows Magistrates’ Court, you were sentenced to a combination of four months’ imprisonment to be followed by an 18-month community correction order with special conditions you perform some community work and undergo assessment and treatment for drug abuse and dependency, mental health, as well as offender behaviour programs as directed.
7 The offending for which you were placed on the Community Correction Crder involved an aggravated burglary committed in similar circumstances as Charge 3 on this indictment, in that you entered a house in the early hours of the morning via an unlocked door and stood over a female victim who was asleep on a couch. She woke up to see you standing over her and there was some conversation before you left. You offended on that occasion following a relapse into drug use.
8 The offending the subject of the indictment occurred during the currency of that Community Correction Order in contravention of its core conditions and that is relevant and a matter of aggravation and reflects the need to emphasise specific deterrence in this sentence.
9 You are aged 31 years and you were 29 at the time of the offending.
10 There are three incidents the subject of the charges on the indictment.
11 The first incident occurred on 5 August 2019. This was two days after your release from custody. You had completed the term of imprisonment that had been imposed by Broadmeadows Magistrates’ Court on 16 June 2019 and had been released and you were living at your mother’s unit at 7/3 Walton Avenue, Preston.
12 Emmanuelle Cochard, the victim in relation to the first incident, lived around the corner approximately 140 metres from your residence.
13 She parked her vehicle in the driveway of her address at about 7.10 pm on Monday, 5 August 2019. She went inside for a short period of time to take her child into the home and then put away some belongings. She left the doors of her vehicle unlocked.
14 Whilst she was inside her home, you entered the vehicle and stole a backpack that was located on the front passenger seat. That backpack contained miscellaneous cards belonging to Ms Cochard, including a Commonwealth Bank card and $50 cash. That is Charge 1, theft.
15 Ms Cochard noted the backpack was missing when she went back to the vehicle but did not see who had taken the backpack. She reported the theft and blocked her bank card. She later found the backpack in the front yard with the $50 cash missing, as well as her Commonwealth Bank card.
16 Later she observed online, via online banking, that an attempt had been made to use her stolen debit card at the Preston South Woolworths store.
17 Police obtained CCTV footage from that store which showed you attempting to fraudulently use the stolen debit card at 8.18 pm on that date to purchase some bread and milk for a total value of $5.59. The attempt was unsuccessful. That is Charge 2, attempting to obtain property by deception.
18 The second incident occurred on 6 August 2019.
19 In the early hours of Tuesday, 6 August 2019, the next morning, at approximately 4.10 am, you entered a home at 40 Hotham Street, Preston. The home is about 600 metres from your residence. You scaled a rear fence and entered a two-bedroom property via an open and unlocked rear door. You walked into the bedroom of the victim, Maria Porcellar-Calvo, through the bedroom door which was slightly ajar. That is Charge 3, aggravated burglary, person present, intent to assault and steal.
20 Ms Porcellar-Calvo awoke and saw you kneeling down on her bedroom floor. She immediately told you to leave. You said to her, 'Please don’t call the police'. She escorted you out of the premises via the front door and then immediately called 000. Police arrived moments later and patrolled the immediate vicinity but at that time they were unable to locate you.
21 At about 5.30 am on the same morning, you went back to the same house and on this occasion her brother, Manuel Arifovic, who lived at the address in a bungalow, saw you attempting to scale the fence. He shouted at you and you dropped from the fence. e immediately then ran inside and told his sister to call 000. On this occasion when police attended, they found you next door, crouching down. That constitutes Summary Charge 3, enter private place without authority trespass.
22 The third incident occurred on 6 August 2019.
23 At approximately 9.40 pm on the evening of Tuesday, 6 August 2019, Kate James, the victim, parked her vehicle in the driveway of her home at 6 Young Street, Preston. Those premises backed directly onto your residential address. She turned off the vehicle's ignition and the lights and remained seated in the vehicle for about five minutes whilst watching a video on her mobile phone.
24 You then approached the driver’s side of the victim’s vehicle. At that time your face was concealed, you were wearing a hooded jumper over your head as well as a white piece of material over your nose and mouth region, and you were wearing a white latex glove on the right hand. You opened her vehicle, the driver's door, and stood in front of her. You were in possession of a serrated black-handled knife in your right hand. She immediately began to scream and kick and punch in order to fight you off. Her husband, Daylan James, heard the commotion. He observed his wife physically struggling with you at the driver’s side of her vehicle. That constitutes Charge 4, attempted aggravated carjacking.
25 She managed to exit her vehicle; however, you stabbed her with the knife. She sustained a single stab wound under the right breast region causing instant blood loss. That is Charge 5, causing injury intentionally.
26 You then ran away from the scene. Police and ambulance attended and Ms James was taken to the Royal Melbourne Hospital where she received treatment for a 3 centimetre stab wound to the right breast. She received sutures, intravenous antibiotics and a tetanus injection. Pain was controlled with Paracetamol. Ms James was discharged in the early hours of the following morning with some bruising on her right arm and shoulder as well as scarring from the stab wound.
27 At about 11.30 am on Wednesday, 7 August police arrested you. At the time of your arrest you made admissions relating to the stabbing incident.
28 Police executed a search warrant at your home and located the serrated kitchen knife that had been used in the stabbing incident, as well as other related items.
29 You were deemed fit for interview in the presence of an independent third person. During the interview you made full admissions to the offending.
30 You told police the offending was premeditated, that you purposely wore items such as a hooded jumper, latex gloves and material concealing your nose and mouth region in order to avoid being identified whilst committing the crimes and to prevent leaving any forensic evidence at the crime scene.
31 You admitted to police about the theft and attempting to obtain property by deception in relation to the cash and Commonwealth Bank card stolen from Ms Cochard. You said you committed those offences in order to purchase the drug ice, and that you had purchased some ice with the $50 that was taken from Ms Cochard’s purse.
32 You admitted entering the premises in relation to Ms Porcellar-Calvo with the intention of committing a sexual assault.
33 You told police in relation to Ms James that you intended to take her purse and car and that it all went terribly wrong. You said that you had a knife in your hands and that you had worn a hood and white cloth to disguise your face. You admitted to stabbing her to the right breast. You said you did not steal anything because the victim was screaming, and so you left the scene as quickly as you could and went home and put the knife and glove under your bed.
34 Following the record of interview, you were remanded in custody, where you have since remained.
35 Mr Atkinson, the offending is serious and that is reflected in the maximum penalties that apply. They are as follows:
· aggravated burglary, 25 years’ imprisonment;
· attempted aggravated carjacking, 20 years’ imprisonment;
· causing injury intentionally and theft, 10 years’ respectively;
· attempting to obtain property by deception, five years’ imprisonment;
· enter private place without authority (trespass), six months’ imprisonment or 25 penalty units.
36 The impact of your crimes has had devastating consequences for those who have been affected. I have read and taken into account the victim impact statements provided to the court.
37 Maria Porcellar-Calvo in her victim impact statement sets out the upset and distress that your actions have caused. She suffers a general feeling of unease because of not being able to feel safe at home. She ruminates over what happened and it upsets her that a stranger has had such an impact on her life. She has considered moving to make a fresh start.
38 Both Kate James and Daylan James read their victim impact statements out loud at the plea hearing. Ms James confirms that your criminal act has had a profound impact upon her and her family and has changed her life forever. She too has had her feelings of personal safety destroyed and she and her family have been traumatised. She detailed the emotional upset and impacts that your actions have had upon herself, her relationship with her husband and her children. She is now hypersensitive to sounds and has experienced acute anxiety attacks, including flashbacks and nightmares whenever she hears about similar assaults on women.
39 Following the attack, she and her husband relocated at significant cost and significant disruption to their lives. They have had to relinquish all their ties with their former community and begin again in a new location. Ms James has had and continues to have psychological treatment. She was very humane in expressing her real hope that you be offered help and support for the future. She has asked you to become a better person for your own sake, your family’s sake and for the sake of our community. She stressed that things like this should not happen again.
40 Daylan James also detailed the significant emotional impact and financial impact the crime has had upon him, his wife and his family.
41 Mr Atkinson, your offending is very serious, involving as it does you offending within a short time following your release from prison whilst undergoing sentence for an aggravated burglary that is not dissimilar to the offending that involved Ms Porcellar-Calvo. As previously stated, your offending whilst on a Community Correction Order in breach of the core conditions is an aggravating feature. Your offending must be condemned.
42 The offending was a course of conduct over a period of approximately 24 hours and, notwithstanding that police had spoken with you after you were arrested in relation to the incidents involving Ms Porcellar-Calvo, you nonetheless persisted in your offending.
43 Another disturbing aspect of the incident involving Ms James is that you acted to take steps to hide your physical facial features and wore a glove so as not to leave any traces of DNA. As well, you had armed yourself with a knife so that you were thinking about what you wanted to do prior to that offending occurring.
44 In terms of the gravity of offending I consider that the theft and attempt to obtain property by deception are low-level examples of that sort of offending. In relation to the aggravated burglary, it is serious, involving as it does entering a home in the early hours of the morning that was occupied, with the intention to assault and steal. And, finally, in relation to attempted carjacking, I consider because you desisted from your plan, it is not a high-level example of that serious offence. But I do consider the intentionally cause injury charge is a high-level example of that offence.
45 Each of the victims were entitled to feel safe and secure on their own property and your actions have significantly violated their feelings of safety at home and those impacts and effects will have ongoing consequences and must be condemned.
46 General and specific deterrence as well as denunciation and the protection of the community are all important sentencing considerations in determining what the appropriate length of sentence ought be imposed.
47 I have had regard to your personal history and the circumstances. You are Aboriginal and have both Yorta Yorta and Kurnai heritage. You were born in Echuca. You have one full sister, who is older, as well as an older half-sister and two younger half-sisters. Your father was an alcoholic and from a young age you were exposed to domestic violence perpetrated against your mother. Your father left the home when you were very young and in the 1990s, he was convicted of manslaughter and imprisoned. You had little contact with him thereafter and he passed away in 2017.
48 Your mother, Marita, was present at the sentencing conversation and she confirmed that she had had her own difficulties in the past associated with chronic drug dependency, but that she is now drug-free. She described her husband, your father, as being a very cruel man who subjected her to domestic violence that was witnessed by the children. She said that you have a chronic hearing problem, which she attributed to you being physically assaulted as a little boy. She urged you to seek help in relation to your drug use and dependency.
49 I accept that you were raised in a very significantly dysfunctional family and subjected to a childhood that was very disrupted. Your family moved to Swan Hill when you were 10 after your mother repartnered and you also spent some part of your childhood living with your maternal grandmother in Mildura. She died and thereafter you and your mother returned back to live in Melbourne.
50 Your memories of childhood are that it was unstable and marred by your mother’s drug use and conflictual relationships with her partners.
51 In your early 20s you formed a serious relationship with the mother of your two children. That relationship was sadly marred by drug abuse and several prior court appearances relate to incidents of violence that occurred in that relationship.
52 There are two boys, aged seven and five respectively, and they are currently being cared for by their maternal grandmother. Prior to you being placed in custody in early 2019, the boys were in your care.
53 You have only basic education. You completed Year 10 at Macleod Secondary College, but school was a significant struggle.
54 You started but did not complete an apprenticeship as a chef. You only worked two months but stopped because drug use interfered with your work. There has also been some casual labouring work in the past, but predominantly you have been unemployed since you were 18.
55 You are a chronic long-term drug user. You commenced using cannabis when you 16. That developed into a daily habit. You started using ice at age 22 and within a year that progressed to intravenous use. Your use of ice has resulted in significant paranoia and hallucinations and I accept was a significant factor in your offending.
56 You have instructed that you were living at your mother's address following your release. Your older sister was there as well and she too had an ice dependency. She suggested that you obtain some ice, and after you used it, your mind turned to getting more, which led to the offending that constituted the first two charges on the indictment. Thereafter, you were acting under the influence of drugs when the further offending occurred.
57 Whilst providing an explanation for your offending behaviour, it does not excuse your behaviour and, given your past history, you understand the link between your offending and drug use.
58 I have regard to the contents of the reports of Mr Bernard Healey, consultant psychologist, and Dr Lester Walton, consultant psychiatrist.
59 Mr Healey interviewed you in relation to the offending that was the subject of the Community Correction Order that you were one at the time of your offending. At the time he interviewed you, you told him that you needed to abstain from drugs and that you were hopeful of being able to participate in a rehab program to address your drug use so that you did have an awareness of the need to stop using drugs and the link between drug use and your offending prior the offences the subject of the indictment.
60 Dr Lester Walton considers that your mental state was reasonably normal and states that you do not require active psychiatric treatment, but he did recommend alcohol and drug rehabilitation treatment.
61 I note there is no reliance upon the Verdins principles; however, I have taken the comments and expressed opinions into account in a general sense.
62 In formulating sentence, I have had regard to the matters put in mitigation.
63 You were cooperative with police and made fulsome admissions when arrested. You entered an early plea of guilty. There is real utility in your plea. I consider that is demonstrative of some remorse and shows that you are now willing to accept responsibility for your behaviour. Importantly, the witnesses have been spared the further trauma of having to come to court to give evidence and you have saved the community the time and cost of a trial. You have facilitated justice, so that your sentence will be discounted accordingly.
64 I have had regard to your participation in the sentencing conversation with Uncle Rod Jackson and Michelle Winters.
65 You acknowledged to them the harm that you had caused and recognised the need for you to reflect on your behaviour and to change in the future. You have acknowledged the need for help and it was recommended that you consider the Men’s Behaviour Program run by Dardi Munwarro to address your underlying offending behaviour.
66 Both elders and respected persons underscored the importance of you seeking help in the future. You acknowledged to them that drugs have been an ongoing issue and that you need to commit to change for the future.
67 Ms Winters emphasised the role that you play within your family and the need for you to be more responsible and mature in the future so you can play a stronger, more positive role.
68 You reflected on what you needed to do in order to have a better future and acknowledged that you needed to be more responsible so that you can be a better role model for your two young sons.
69 Uncle Rod Jackson recommended to you the 'Life After Ice' brochure as well as that you should try to connect to the alcohol and drug workers at the Victorian Aboriginal Health Service upon your eventual release.
70 They both emphasised that you need to take responsibility ns so that you can break the pattern of behaviour that leads to your offending, otherwise you will inevitably return back to gaol and risk becoming institutionalised.
71 You were very respectful and listened carefully to what was said to you by the elders.
72 I have taken into account in your favour that you voluntarily consented to the matter being dealt with in the Koori Court Division and that you genuinely participated in the sentencing conversation. [1]
[1] See R v Morgan [2010] VSCA 15 at [11], confirmed in Honeysett v R (2018) 56 VR 375 and Director of Public Prosecutions (“DPP”) v Heyfron [2019] VSCA 130
73 I have had regard to the fact that you were raised and grew up in a significantly dysfunctional family with exposure to early childhood trauma and I have applied the principles of Bugmy v The Queen.[2] I have reduced your moral culpability and I accept that those effects of profound childhood deprivation have not diminished with the passage of time and repeated offending. I have given full weight to your deprived background in the sentence, but equally there is a need to have regard to community protection and that is reflected in the sentence as well.
[2]Bugmy v The Queen [2013] HCA 37
74 I have regard to the impact of COVID‑19. You have been in custody during the time which coincided with the pandemic and in Victoria, prisons have taken steps to adapt their processes and procedures to mitigate against the potential harm of the virus entering the prison system. That has meant that you have not had an opportunity to participate in any programs or have any personal visits. Generally, it is accepted that those conditions have meant increased anxiety for prisoners as well as their families.
75 Ultimately, having regard to the nature of the offending and in particular the attempted aggravated carjacking and intentionally causing injury charge, I consider that no other sentence other than a term of imprisonment is appropriate.
76 I accept that during the sentencing conversation, Mr Atkinson, you did demonstrate an evolving sense of empathy towards the victims. You can now reflect on your behaviour and the need to show respect to others and you understand the harm caused by your actions.
77 I consider that you are on the cusp of making a decision to change your behaviour, but you do require strong structured support and I recommend to the authorities that every effort be made upon your eventual release to ensure that you do have appropriate support and in particular, you need to address your underlying addiction to drugs as well as your complex history of trauma and exposure to intergenerational violence. That much was disclosed during the course of the sentencing conversation.
78 Overall, I am somewhat guarded about your rehabilitation prospects, but your situation is not hopeless and you have shown through the words you used in the sentencing conversation that you are capable of being reflective and that you can be more positive in terms of setting your life's future directions.
79 I noted that you do have an ongoing hearing deficiency and that you were to have specific hearing aids provided prior to your imprisonment, but because you were imprisoned on remand, this has not occurred. I recommend to the authorities that a thorough assessment be undertaken of your hearing so that the proposed course of treatment can be undertaken whilst you are in custody to assist you in managing your hearing difficulties.
80 In formulating the appropriate sentence, I have had regard to the principles of totality and the need to impose just punishment.
81 I will now announce the formal court orders. In relation to all the charges on the indictment you will be convicted and sentenced as follows:
Charge 1, theft: convicted and sentenced to six months’ imprisonment.
Charge 2, attempt to obtain property by deception: convicted and sentenced to seven days’ imprisonment.
Charge 3, aggravated burglary: convicted and sentenced to two years’ imprisonment.
Charge 4, attempted aggravated carjacking: convicted and sentenced to two years’ imprisonment.
Charge 5, intentionally cause injury: convicted and sentenced to three years’ imprisonment.
Summary Charge 3, trespass: convicted and sentenced to one month’s imprisonment.
82 Charge 5 is the base sentence and that is three years. I make the following orders for cumulation: I order that three months of Charge 1 and nine months of Charge 3 be cumulative upon each other and upon the sentence imposed by me on Charge 5, making a total effective sentence of four years' imprisonment, and I fix a non-parole period of two years’ and six months.
83 I make the following declaration pursuant to s.6AAA. But for your plea of guilty I would have imposed a term of five years, to serve three years and six months.
84 I make the disposal order sought.
85 I make a declaration of pre-sentence detention. I declare that you have spent 442 days in pre-sentence detention and direct that that be entered into the records of the court.
86 That concludes the sentencing remarks.
87 Mr Baker, do you want to have the opportunity of speaking to Mr Atkinson?
88 MR BAKER: It may be useful, Your Honour. Thank you.
89 HER HONOUR: All right. Well, look, I'll leave the Bench. Thank you, everybody else, for your attention to this matter. If you wouldn't mind leaving the meeting now and that will enable Mr Baker to have a quick talk with his client before we close off the Webex hearing. So, thank you, I'll leave the Bench and we'll leave Mr Cameron Baker to have a discussion with his client. Thank you.
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