Director of Public Prosecutions v Atkinson

[2020] VCC 339

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00838

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAMERON ATKINSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 2017; 20 August 2018; 28 October 2019; 5 March 2020
DATE OF SENTENCE:	25 March 2020
CASE MAY BE CITED AS:	DPP v ATKINSON
MEDIUM NEUTRAL CITATION:	[2020] VCC 339

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. MacDougall	Office of Public Prosecutions
For the Accused	Ms T. Theocharous	Kurnai Legal

HIS HONOUR:

1Cameron Douglas Atkinson, you stand to be sentenced for one charge of aggravated burglary to which you pleaded guilty some considerable time ago.  There was another charge of common assault for which I, at that time, placed you on a community corrections order, which you successfully completed.

2The situation is that you are now 26.  At the time of this offending, you were 22.  You pleaded guilty at a relatively early stage and you indicated appropriate remorse.  You also get the utilitarian benefit of that plea of guilty.  You do have a significant number of prior convictions, but very much to your credit, as I understand the situation, since this offending occurred now nearly some four years ago, you have not offended since.  That is very very much to your credit and as you had participated in Koori Court a couple of times in relation to this, I can indicate that the elders were very very impressed with the way that you have turned your life around from very very difficult circumstances.

3The offending itself was that in April of 2016, you were in Warrigal having dinner and drinks with a friend John Moore and Zoe Roberts.  After dinner, you caught a bus from Warrigal to Morwell and met up with your brother Dylan.  There was drinking carried onto Morwell railway station and then a number of you walked from Morwell railway station to an address in Hopetoun. You arrived in Hopetoun, walked down the driveway and Zoe Roberts told the group, and I understand she has never been apprehended, but anyway, she told the group, including you, that she had been sexually assaulted by the occupant of flat number 4.

4You and the two others began yelling abuse and threats in the driveway, directing them at the man in the flat.  He opened his door and went onto the front veranda.  On seeing him come outside, Mr Moore charged up the stairs yelling further threats and was followed by you and your brother Dylan.  He went back into his flat, but could not get the wire door shut, managed to close and lock the door.  Moore attempted to kick the door without success.  A bottle was thrown which smashed the lounge room window.  Mr Moore climbed in through the window holding a knife and Ms Dana said 'Get the fuck out of my house' and Moore replied 'Give me your fucking money or I'm going to stab you'.  That is part of the overall situation, but it is not your problem.  Moore started throwing punches.  You, after the fight had already got underway, climbed in through the window and joined Moore in the assault on Vistana.  You have already been sentenced for that offence.

5You punched him in the back of the head while he was wrestling with Moore.  Moore continued to assault and demand money and obviously the fighting went on for some time.  Your brother Dylan kicked his way in through the door and a lot of wrestling took place with kicking and punching.  Further discussion took place, but in any event, the victim Mr Vistana fled and ran down the stairs, out onto the driveway.  You ripped a paling off a nearby fence and chased him, swinging the paling at his head.

6In any event, you were ultimately arrested.  You were OC sprayed and the whole incident came to an end.  I have to be careful because the charge I sentence you for today is the aggravated burglary, that is the entry to the premises and to an extent, what took place within, bearing in mind I am bound by the principles of double punishment.  As I said, at the time this offending occurred, you were 22.  You did have a criminal history.  You have not spent any time in custody in relation to the matters and in terms of parity, Joel Moore was sentenced to 240 days which he had already done.  He had other matters pending as well.  As I understand it, Zoe Roberts was never apprehended and the whole situation just got completely out of hand.  What has happened since is unfortunate in one sense, and very fortunate for you in another. 

7On 23 October 2017, which was some 15 months or so after the offending, I, as I have indicated, placed you on a community corrections order.  Part of that was for you to attend the Wulgunggo Ngalu Learning Centre for young Aboriginal men.  The matter was then adjourned off to see how you went with that.  For reasons that I have been unable to really ascertain, the matter just simply slipped through the cracks.  You completed the community corrections order successfully.  I have got the exit report from Wulgunggo Ngalu and I know from talking to people at Wulgunggo Ngalu, Berwyn and Seanie, that you did pretty well while you were there and showed a lot of interest and engaged culturally as well as learning how to cook and various other things.

8The difficulty I think that has arisen is because these things get breached so often, it never having been breached, it never got brought back.  I think that is literally what occurred.  In any event, it ultimately came to another Judge's attention that the matter was still floating around in the list and we brought it back on.  On 27 October 2019, that is some two years later, we sat down in Koori Court and you again spoke to the elders who were very impressed.  At that point in time, you have been able to find independent living for yourself.  You were working with G-Jack in terms of your drug and your alcohol.  Your local doctor had prepared a mental health care plan for you and things were going very well.

9It seemed to me that there was a real - or a probability that there would in fact be an intellectual disability involved in all this and accordingly we had you assessed by DHHS.  The general consensus by Mr Hutton that day, at the table, was that a community corrections order with a justice plan would be the appropriate disposition, bearing in mind how well you had done.  When we had you assessed for that, it turns out that you do not fit the definition.  That is, that any intellectual disability will have had to have existed before you were 18, and they found that in fact, you do not have one.  That is in one sense good, and in another sense, it makes it a bit more difficult in the sentencing process.  But since that assessment took place, you have continued with the good work that you have been doing.  You have not offended.  You are still doing well and I see no reason, bearing in mind the matters that are in place already, why I should not do a community corrections order with effectively the same conditions that a justice plan would have had within it, in any event.

10We had you assessed by Corrections and they say you are suitable and the programs they are suggesting are treatment rehabilitation for drug, alcohol and mental health and programs to reduce reoffending and supervision.  In the current situation that the community finds itself in, I do not know what is going to happen with Corrections in terms of one on one contacts.  It is just going to be - I think over the next couple of years a nightmare.

11I think the best bet is this.  I will, if you agree, place you on such a community corrections order.  In these circumstances, I will make it for two years and it will be with conviction obviously, and I will make it with those conditions.  Four years ago I would have said your prospects of rehabilitation were minimal and the risk of you reoffending was extreme.  I am extremely happy to be able to say that that view would have been totally wrong, as it has all turned out and it is a matter that the County Court elders who spoke to you on both those occasions would be very proud of.

12These situations are very unusual coming out of Koori Court, where there is such a turnaround to somebody's life and to do anything other than impose that community corrections order, in these circumstances I think would be simply unjust, and in nobody's interests at all.  So if you agree, that is what will happen.  I will do a 6AAA and I will just say six months, bearing in mind what Mr Moore got.  He was a much greater role than this man's, but if it would fall to trial we would have to lock him up I think. 

13All right Cameron, do you follow all that?  Can you just stand up for me for a moment mate.  Just stand up for me.  It is another community corrections order.  I am not going to put any work hours or anything on it and I am pretty sure that when you turn up to Corrections in the next couple of days, if there is anybody there, that what is happening at the moment, will just keep happening, they will keep doing the mental health plan.  I think they are going to have a lot of strife over the next six months trying to organise anything.  If they tell you to turn up for a yarn, turn up for a yarn and just do what they say and stay out of strife.  All right?

14But as I say, on behalf of Uncle Lloyd and Aunty Di, I reckon they would say well done too.

15OFFENDER:  Thanks.

16HIS HONOUR:  All right.

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