Director of Public Prosecutions v Atkinson
[2019] VCC 1777
•30 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTIONCR-19-01458
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRYCE ATKINSON |
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| JUDGE: | HIS HONOUR JUDGE MULLALY |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 30 October 2019 |
| DATE OF SENTENCE: | 30 October 2019 |
| CASE MAY BE CITED AS: | DPP v Atkinson |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1777 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McKenry | Office of Public Prosecutions |
| For the Accused | Mr N. Rudston | Adrian Paull Lawyers |
HIS HONOUR:
1Bryce Atkinson, around 5.30 in the afternoon on 19 September 2018 you and your co-accused, entered the victim's house in Geelong. The prosecution summary that was read to me said the rear door was unlocked. Your co-accused was armed with a frightening cudgel or you armed yourself once you were inside with a knife. You confronted the occupant saying that you had a machete and that you would kill him, if he did not do as you said.
2You told the victim to get into a bedroom, an order you repeated while holding the knife. You then stole electronic equipment, a collection of knives and sporting shoes. You and the co-offender left and it seems went your separate ways. The victim rang a housemate who was nearby. He was able to locate your co-accused and follow him. The co-accused dropped the bag that he had with stolen items.
3The police were called and the co-accused arrested. He was a little younger than you, thus was speedily dealt with in the Children's Court. He was convicted and placed on a probation with conditions for six months. This all occurred 14 November 2018.
4You were not arrested on the day. In fact, you handed yourself into the police on 8 October 2018 and I will say more of that shortly. In the interview that followed you made full admissions and expressed genuine remorse. The matter resolved in the Magistrates' Court, that is you were committed having indicated a plea but it took a number of months and thus you were 19 at the time of the offences but are now 20. I will return to the value of your plea of guilty and its timing very shortly.
5But as to the gravity of this offending, plainly it was frightening to the young victim. He was entitled to feel safe in his home. You shattered that sense and added to the fear the community has, that drug addled armed offenders are likely to break into their homes and intimidate them and steal their property. The items you stole were of value to the owners. They had saved hard for the computers, gaming consoles, music speakers and sports shoes. The knife collection was of sentimental value. What you took as opposed to the co-accused, was not recovered.
6In the victim impact statement, Mr Long also known as Mr Scott, makes it clear just how lasting the impact has been. He speaks about the worrying effect upon him of whether someone will come back and break into the house. It has affected his sleep, his ability to enjoy his life free of anxiety. He in fact moved out of the place and there was great stress and hard work in reorganising to move out. As I said, his small collection of knives was important to him. It was a connection to his grandfather and other memories that he had. And as I have said, the items that were stolen were items that these other young men had worked hard to get.
7That said, some of the common more concerning aspects of home invasions were not present here. It was not in the middle of the night with extra intimidation that comes with that, or extra fear. You did not break down the doors or the like. It was not a planned attack for revenge or confrontational with the occupants. You simply bailed up the occupant who was there and threatened him with the weapons, and then told him to get out of the way while you searched and took items. It was not a prolonged confrontation with actual violence inflicted on the victim.
8Your decision to do what you did is almost inexplicable. You are not an entrenched offender, quite the opposite. You have no prior convictions. You had taken a number of prescription drugs. This is not a mitigatory excuse but provides an explanation where otherwise your conduct makes no sense. This was not well thought out and as you said in your record of interview, you instantly regretted what you had done.
9This remorseful approach was further evidenced by you handing yourself into the police. Thus, by this conduct, which is evidence in my view of your true character, you relieved the police and the prosecution of the significant task of identifying who was the other offender after the co-accused had been arrested. Thus, your contrition in handing yourself in, your admissions to the police in your plea of guilty are of very significant mitigatory weight. It is hard to conceive of a set of circumstances in which more weight would attach to those matters.
10What is the forefront then is, the long-standing sense in our community that if a young first offender is truly sorry and shows solid signs of rehabilitation and turning things around, then the community are capable of seeing that this sort of young person is a candidate for a second chance. That said, I do not lose sight of the gravity of the offending behaviour.
11As to your personal circumstances, you are now 20. You are one of four siblings born in Gippsland. You identify as a Gunai/Kurnai man, that is the indigenous people of the Gippsland district. You were by and large raised by your mother. She remains close to you and gave important and impressive evidence on your plea. You indicated you did not want to put her through the stress, but she managed and gave me great assistance. What you should take out of that, Mr Atkinson, is that you should never let her down again. Now that means by doing what I am going to ask you to do as punishment for this crime. You do it. Not her. Do not create more burdens within the household by reason of you having to do, what I am about to order you to do.
12Your father was troubled by drugs and in particular alcohol. You and your mother moved around a good deal to get away from your father, but also to re-join him. Your parent's relationship ended as your mother made clear, about six years ago. Of late since this offending, you have lived in Maryborough with your mother and you are settled or settled enough there at the moment. You would prefer to be in Geelong where you spent about five years with your family.
13Your mother pointed out that she took on another burden out of, indicative of the type of fine character that she is, to look after a disabled child who could not be looked after properly by its own parents. So with that extra burden, she moved to Maryborough with the other siblings and you remained in Geelong where this particular episode unfolded.
14You were educated to Year 10 and have had some but limited employment. You are engaged or were engaged in studies at the local TAFE in Maryborough/Bendigo area. You commenced some binge drinking in your early teens and so too have you used cannabis. From the age of 17 you abused Xanax and at one point, you were hospitalised as the consequences of difficulties that you had with this drug. Again I pause to point out, that this must be the wake up to put the use of prescription drugs such as Xanax and cannabis behind you.
15Around the time of the offending, you had visited the grave of a young friend who had committed suicide, only to find that the grave had been smashed. You reacted badly with grief and went on a Xanax, 'Bender', as you said and in that you committed the offence. The psychologist who saw you for your plea said the following - I am so sorry I have left that document to one side. Can I just have that exhibit please? Bear with me.
16He said that you presented as an immature and socially detached individual with crushingly low self-esteem. He said that based on your history taking medical records and clinical interview his view was that you satisfied the diagnosis of severe alcohol, benzodiazepine and cannabis use disorder, which is in early remission. It is important that you do not use these substances to try and deal with mental health problems, such as unresolved grief and depression and low self-esteem. He concluded that your safe management in the community does present a few challenges relating to your unresolved grief and your previous drug addiction.
17He said that you are well supported in the community by your mother. You have commenced some post- secondary education and hope to get some employment and have attended grief counselling, but you should seek out, as he indicated, assistance from Indigenous treatment services such as the Victorian Aboriginal Childcare Agency and the Bendigo District Aboriginal Cooperative. These are matters to take up that might assist you.
18The authorities are clear that with a young offender, especially a young first offender, the courts must do all that can be done to facilitate rehabilitation. It is the sentencing purpose that becomes the most prominent over what ordinarily would be the case with an emphasis on denunciation and deterrence.
19Your co-accused was dealt with in the Children's Court with its specific and different sentencing regime. A sentence of probation for six months cannot be taken as a benchmark for your sentence, but I do not ignore entirely the outcome given that you and he were different in age by only a year or so. In your case the Court of Appeal guideline decision in Boulton together with the principles express in the R v Mills and Azzopardi v DPP are very much to the fore. Your counsel conceded this was serious offending and ultimately urged that I impose a community corrections order.
20The prosecution's submission was that consideration be given to a youth detention sentence. I considered that without the benefit of an assessment. In the end, once you were assessed for a community corrections order and found suitable and found - and aspects of that report are encouraging. I have come to the conclusion that I could only impose a term of incarceration being a youth justice sentence or a gaol term if it is only with such a grave penalty that the sentencing purposes can be met. If the sentencing purposes can be met by a community corrections order then I cannot impose a more severe punishment.
21In now well-known words of the Court of Appeal in Boulton that a community corrections order has a significant benefit of being able to simultaneously and rehabilitate are especially apt in this case. You do need further help managing your vulnerabilities to drug use, your low self-esteem and your unresolved grief. You need also to be punished by a visible contribution to the community, brought about by unpaid work. It will be onerous given where you live and the difficulties of transport, something that I am well mindful in dealing with young men and other offenders in rural areas.
22But given the gravity of your offending, there must be an onerous element of punishment. This can be achieved by a community corrections order rather than a youth justice of gaol term. They would not be just and appropriate punishments. It seems to me a community corrections order has the best chance to see you permanently reclaimed and to continue with your lawful ways, that you had up until this single and dreadful mistake that arose in September when you were with the co-accused and taken the Xanax. It is important that you are reclaimed and avoid bad influences of gaol or detention in a youth justice centre. It is in the end, in the community's best interest that you are permanently reformed.
23For the home invasion offence and that of theft, can you please stand while I impose the punishment?
24For those crimes there will be an aggregate punishment of the imposition with conviction of a community corrections order that will last for one year;
25You will be required to be on supervision for that full year;
26You must do 100 hours of unpaid community work;
27You must also do a number of programs. They will involve treatment and rehabilitation for drug addiction, for alcohol abuse and programs to reduce your reoffending.
28The community corrections officers did not recommend that treatment and rehabilitation for mental health. They gave as the reason that you did not have a mental health problem expressed in the report that they received. You are not medicated for anxiety or depression. But there are, in my view, aspects of your mental health that need some attention. I am going to order that you be under the treatment and rehabilitation regime that can be instituted by the Office of Corrections. That will be part of the program.
29What that probably will mean is that you go and get a mental health plan from a local general practitioner and set up appropriate counselling that can be achieved, hopefully nearby. But the key is that you are required to do that. It is not just if your things go, if you feel bad about it. I think with your problems with self- esteem and your resort to drugs and alcohol when things become difficult for you, it is necessary you have professionals whether it is seen that you have currently medication or otherwise, it is necessary it starts now.
30I am also going to impose something which I do not often do, which is judicial monitoring. I think that is appropriate for a young first offender. If you come back to court to see me and things are going well, well I will probably not have to see you again. But you need to know that you do have to come back to see me to make sure things are working. And if they are not, then there is likely to be a breach of the community corrections order that follows and you do not want to come back to me saying, 'I was given a chance and I didn't stick to it and now I want another one'. That does not - it is not the way it works. Do you understand that?
31ACCUSED: Yes, Your Honour.
32HIS HONOUR: Right. You will have to sign a document that will be produced shortly, and I will explain these things in more detail. Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of a youth justice for two years.
33There is an application that you provide a sample of a scraping from your mouth, so a forensic sample so that your DNA can be extracted from that. It is put by your counsel that I should consider exercising a discretion, given your prior blameless history and so on, that I do not order that. But the seriousness of this crime is such that I will order it. It is in the interests of justice, both for you and for the community that you provide that sample. The simple facts of that are that you must get to a police station and the address will be here, it will probably be Bendigo or something. It might be Avoca or Maryborough, I am not sure. Just go to the police station and have the sample taken and cooperate with them once you are there. If you do not cooperate, they can use reasonable force to get that sample. I will have to explain to you that you do not go to the police station straight away. You have got to wait four weeks. Then a window opens up and you have got to get down to the police station within that four weeks. Do you follow all that?
34ACCUSED: Yeah.
35HIS HONOUR: It will be clear on the form. Is there a form or have we got to get that later?
36MR McKENRY: We provided one form of the application. We are providing the other one now.
37HIS HONOUR: All right. We will do it here in Geelong. You will have to come to Geelong for that. Probably the Corrections Centre that you will go to, I am not sure that will be, that will come out.
38MR McKENRY: Geelong, Your Honour.
39HIS HONOUR: Geelong? He lives in Maryborough. Where is the closest Corrections Centre to Maryborough. The address that he is required to report to is Little Malop Street, Geelong. Where does he go to? He lives in Maryborough.
40VOICE (from body of the court): Yes, Your Honour. He is planning to move to Geelong.
41HIS HONOUR: Yes. Well when he gets here, that will be fine. So where does he report to in two days?
42VOICE: He is actually - he has got plans to live with a cousin in Geelong from today.
43HIS HONOUR: All right.
44VOICE: That is my understanding, Your Honour.
45HIS HONOUR: All right. Is that right? All right, it will be Geelong. Mr Atkinson, this is critical that you get this right, all right? If you are coming back to Geelong and you are going to live with a cousin, it is not a matter of me just crossing my fingers and hoping it works. If it does not, I will know very quickly from the Office of Corrections because unstable accommodation can be the undoing of people. They come across people in share houses they do not know and all the rest of it. If that is your plan, then you must make sure that you meet all these requirements. Do you follow?
46ACCUSED: Yes.
47HIS HONOUR: So the police station will be Geelong and the Community Corrections will be here in Geelong. You can take a seat. Mr Atkinson, following the conditions or terms that apply to everyone on a community corrections order. Most of them are about cooperation but the first is not and it is the most important.
48You must not commit another offence for which you can be imprisoned during the time this order is in force. So if you commit another offence, whatever that is, if it is punishable by imprisonment then you will come back before me. All right?
49You must comply with obligations or requirements under the Sentencing Regulations which relate, identifying you with photographs and the like.
50You must report to and receive visits from the Office of Corrections.
51You must report to the Community Corrections Centre there in Little Malop Street within two clear working days.
52You must let the Community Corrections officers know within two clear working days if you change your address or your job. That is important.
53You must not leave Victoria without getting permission to do so and you must obey all lawful instructions from the Office of Corrections.
54In addition, you must perform 100 hours of unpaid community work.
55You must be under the supervision of the community corrections order for the whole year.
56You must undergo assessment and treatment for drug abuse, alcohol abuse.
57You must undergo mental health assessments and treatment, as directed by the Regional Manager and you must participate in programs that address factors relating to your offending, as directed.
58And you must appear at court for a review of your compliance, judicial monitoring. That will be here in Geelong on 10 March 2020 at 9.30. Do you follow all that? Will you sign that? Come out of the dock please and come up behind your barrister and sign this document, if you - thank you.
59464, is it anywhere to hand?
60MR McKENRY: Just printing it now.
61HIS HONOUR: All right. Mr Atkinson, sign that document. There is another document that you need before you go. Just so I am crystal clear, because apparently maybe I was not with those victim impact statements to the member of the press. Insofar as I have read out things from the victim impact statements, I have read out in the course of sentencing or summarised them, they are part of the public - what was announced in public and that is on the media portal. You can use that, you are not restricted there but you cannot physically have them unless they say so.
62VOICE (from body of the court): Yes, Your Honour.
63MR McKENRY: Although I do not have any responses, Your Honour, my instructor provided me with some directions from the OPP ‑ ‑ ‑
64HIS HONOUR: Yes.
65MR McKENRY: ‑ ‑ ‑ the media unit. It is not the general practice ‑ ‑ ‑
66HIS HONOUR: No.
67MR McKENRY: ‑ ‑ ‑ of the OPP to ‑ ‑ ‑
68HIS HONOUR: Release the actual things. Yes.
69MR McKENRY: ‑ ‑ ‑ to release the actual statements.
70HIS HONOUR: Yes, yes.
71MR McKENRY: I do not disagree with anything Your Honour said about the sentencing remarks.
72HIS HONOUR: So move in the other, move along with the summary that I gave in respect of Mr Brennan and Ms Patmore, that is a totally different matter. I did not say anything about them. Thank you. That is the 464 document I have signed. Is there any disposals in that matter?
73MR McKENRY: Those orders have already been made in regard to the co- offender, Your Honour.
74HIS HONOUR: Thank you. Thank you for your assistance, Mr Rudston.
75MR RUDSTON: Thank you, Your Honour.
76HIS HONOUR: You are free to leave the Bar table whenever you are ready. I will just speak to Mr McKenry about other upcoming matters.
77MR RUDSTON: I am grateful, Your Honour.
78HIS HONOUR: Thank you.
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