Director of Public Prosecutions v Atkinson
[2019] VCC 1119
•23 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02515
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LYNETTE ATKINSON |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 July 2019 | |
DATE OF SENTENCE: | 23 July 2019 | |
CASE MAY BE CITED AS: | DPP v Atkinson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1119 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty, participation in Koori Court process is a mitigating factor, one charge of attempted armed robbery, one charge of theft, significant criminal history for an offender at 23 years of age, offences occurred in a motor vehicle and victim was an Uber driver, empty syringe used as a weapon while making demands for money, long term heroin addiction, disadvantaged background, limited remorse for the victim, combination sentence.
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:The Queen v Steelie Morgan [2010] VSCA 14, Honeysett v The Queen [2018] 56 VR 375, DDP v Heyfron [2019] VSCA 130.
Sentence: Total effective sentence of 9 months imprisonment and a Community Correction Order for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Roper | Office of Public Prosecutions |
| For the Accused | Ms D Dempsey | Victoria Legal Aid |
HIS HONOUR:
Introduction
Lynette Atkinson, you have pleaded guilty to one charge of attempted armed robbery contrary to s 321M and s 75A of the Crimes Act 1958 which carries a maximum penalty of 20 years imprisonment and one charge of theft contrary to s 74 of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment.
You have also admitted your prior criminal record.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
On 16 May 2018, at approximately 6pm Mukhtar Ahmad was parked in his vehicle on Scott Street, Dandenong near the intersection of Robinson Street. Mr Ahmad was working as an Uber driver and was waiting to receive a booking.
You approached Mr Ahmad’s vehicle and asked what he was doing. Mr Ahmad replied that he was an Uber driver. You then requested a lift. Mr Ahmad asked where you wanted to go and you got into the vehicle saying your destination was close by. Mr Ahmad stated to you that you would have to book the trip via the Uber application.
Mr Ahmad performed a U turn and drove in a westerly direction along Scott Street as directed by you. You told Mr Ahmad to turn right at the intersection with Pickett Street. Mr Ahmad performed the turn and was travelling in a northerly direction along Pickett Street.
Whilst Mr Ahmad was driving on Pickett Street, you produced a syringe, removed the cap and held it towards Mr Ahmad. You said, “If you do not give me money this will kill you in one minute”.
Mr Ahmad was very scared though he could not see if there was anything in the syringe. The syringe was held approximately 30cm from him and pointed in his direction.
Mr Ahmad continued to drive along Pickett Street towards Hemmings Street with you continuing to point the syringe at him while making demands for money.
Mr Ahmad turned left onto Hemmings Street and agreed to your demand for his money. You said, “Give it to me now”, still pointing the syringe in the direction of Mr Ahmad. Mr Ahmad said to you that he would need to park his car.
Mr Ahmad headed towards the nearby shops located on Hemmings Street. He then turned in to a carpark located near the corner of Hemmings Street and Wilma Avenue in Dandenong. He parked his car and asked you to get out of the car several times. You refused. He then drove the vehicle out of the carpark and at the next intersection turned right onto Hemmings Street and parked the vehicle outside the IGA supermarket. Mr Ahmad did this because he believed it would be safer as there was better lighting and people present in the street.
As Mr Ahmad parked the vehicle, he went to take his wallet from his back pocket with his right hand and at the same time grabbed your right arm with his left hand. You were still holding the syringe in your right hand as Mr Ahmad grabbed your right arm.
Mr Ahmad pushed your arm away, got out of the vehicle and ran. He took the keys with him. From his position about four to five metres away, he watched to see if you would get out of the vehicle. When this did not happen, he called the Police via a mobile phone. At the same time, he watched you and could see you rummaging around inside the vehicle.
After a few minutes, you got out of the car and crossed the road towards a public toilet.
As Mr Ahmed approached his car he saw that the glove box was open and an Apple iPhone 8 mobile phone belonging to him was missing from where he had last placed it within the glovebox.
Mr Ahmed saw you leaving the toilet. You crossed Hemmings Street and then ran down Wilma Avenue in a northerly direction.
Police arrived and were pointed in the direction of where you ran. Leading Senior Constable Goff and Constable Hunt found you and you were arrested. As they approached you, you were observed to throw a silver multi tool on to the ground. The multi-tool is owned by Mr Ahmed and was last placed by him in his vehicle.
Leading Senior Constable Goff and Constable Hunt arrested you and while conducting a search found a syringe. You advised the police that there was a mobile phone inside your leggings and when searched the Apple iPhone belonging to Mr Ahmad was found.
You were arrested and taken to Dandenong Police Station. However, you were not properly interviewed because of concerns regarding your understanding of the caution.
Nature and gravity of the offending
Attempted armed robbery is a serious offence which is reflected by the maximum penalty of 20 years imprisonment. In this instance the weapon used was a syringe which you pointed at the victim while in close proximity to him in his car. There is no evidence that the syringe contained any substance which is consistent with what the victim observed, however you made the threat to the victim while pointing the syringe towards him which would have been a very frightening experience for him. While there was no victim impact statement tendered on the plea, the victim said in his police statement that he felt very scared and thought he could die from what may have been in the syringe.
The circumstances leading up to the offence as described above are accepted by you however the typical circumstances in this type of offence do not exist here. You stated to your psychologist that the offence was ‘an accident’ and that ‘it wasn’t supposed to happen the way that it did’. You also stated that you were not in desperate need of drugs as you noted that you ‘had all the drugs I needed’. In other words, this was not a desperate attack in order to immediately feed an ongoing heroin addiction.
While the motive for you getting in the car initially is unclear, in all the circumstances I accept that you did not enter the car with a plan to rob the victim and that rather, it was a spontaneous act which you decided to do once already in the car. You acted alone, you did not attempt to disguise yourself and you were arrested very shortly after the incident.
You have through your counsel acknowledged that you are pleading guilty to a serious offence and whatever the circumstances leading up to the incident, a taxi or Uber driver is rightly categorised as a vulnerable, soft target and you took advantage of that circumstance.
Personal Circumstances
You are now aged 23 and were 22 at the time of the offending.
You are a Yorta Yorta woman and the youngest of a sibship of three. You have an older brother and older sister. You also have a half-brother.
Your childhood can generally be described as disadvantaged. You were exposed to substance abuse and violence from an early age. Your father abused alcohol and was frequently violent towards your mother, and you recall witnessing episodes of extreme violence. In 2005 you were removed from your mothers care at age 13 and placed with your grandmother in Healesville until 2009. Your relationship with your grandmother broke down and you then lived with one of your cousins for a period of time before being placed in state care. Your secondary school was interrupted by multiple home care placements and times in secure welfare. As such, you left school before completing year eight.
Your mother is currently in custody and you are both remanded at the Dame Phyllis Frost Centre. You indicated at the plea that you do not get on well with your mother and fight with her in custody. You believe that your brother may also be in custody.
Your forensic history began in 2011 when you were 15 years old and you have been constantly before the courts since then which has included periods in youth detention. Your offences include a number of dishonesty matters together with assault and criminal damage charges.
As to your drug and alcohol history, you first began drinking alcohol and using cannabis at the age 13. You began using heroin at the age of 14 and it seems that that has been the drug that you have struggled with the most. You did use methamphetamine at age 18 but only temporarily. You indicated to your psychologist that at the time of the offending you had used heroin multiple times during that day. You have on occasions been on the methadone program whilst in the community in 2015 and 2016, however your compliance with opioid substitution therapy has been sporadic and at the time of the offending, you were using intravenously daily. Whilst in custody you have been back on the methadone program and you are on 30 mg per day.
A report was prepared by Laura Fleming, forensic psychologist, and tendered on the plea. It contains a detailed history in relation to your disadvantaged background and mental state. Ms Fleming conducted psychometric testing and unsurprisingly, found that you suffer from an Opioid Use Disorder. She also found that you suffer from a Major Depressive Disorder. However, there are no entrenched personality issues or neurological problems. She assessed your risk of recidivism is being moderate. Clearly addressing your long-term drug addiction is central to you beginning to confront your other issues such as homelessness, unemployment and mental health treatment in order to reduce your risk of recidivism.
Sentencing considerations
Turning first your plea of guilty.
Your plea of guilty in relation to these offences was entered after some cross examination of the victim in this matter. However, it was submitted that the pleas should still be considered as having come at a relatively early stage prior to being committed for trial. Mr Roper who appeared on behalf the Director of Public Prosecutions accepted that the pleas can still be considered as early pleas. Further, the pleas of guilty have avoided the need for a trial and most importantly, avoided the need for the victim to give evidence and relive the event. Your pleas therefore are evidence of acceptance of responsibility and as such have facilitated the course of justice.
I accept that through this process you have begun to have greater insight into your offending behaviour and as you indicated to Ms Fleming: ‘to stop coming here I need to get off the drugs, cos you can’t think, I need to change where I am living, the people I hang around with’. While you are regretful of your actions, Ms Fleming reports that you appeared to hold limited remorse for the victim. That said, you indicated that your actions would have been harmful.
As noted you are 23 years of age and were 22 at the time of committing these offences. While you have a significant criminal history for someone of your young age, you have also had enormous hardship and difficulty through your younger years including exposure to violence, dislocation and addiction to drugs. Ordinarily, in relation to offences of this type, general deterrence should feature prominently in the sentencing equation. Further, the primacy of rehabilitation in relation to young offenders is diminished in circumstances where the young person has a significant criminal history and where the offence is of a very serious nature. However in my view I accept the submission put on your behalf that your youth as a sentencing factor, should not be extinguished by the serious nature of the charge and that rehabilitation should still feature prominently in the sentencing discretion in this instance.
Clearly, specific deterrence is an important consideration given your prior criminal history and difficult hurdles that you are to overcome in order to reduce the risk of recidivism.
As to your prospects are rehabilitation, again because of the enormous difficulties you still have to face, your prospects should be approached with some caution. You need a number of supports around you to deal with the many issues you grapple with and although I accept you have a genuine desire to rid yourself of drugs and find a stable and caring environment in which to live, the reality is that this will be a difficult road.
I acknowledge your participation in the Koori Court process. It is confronting to sit face to face with respected elders of your community and your participation in the process is a factor that is relevant to sentencing which I have taken into account.
The Court of Appeal has recognised that the ‘sentencing conversation’ in the Koori Court is designed to ‘further the reformation of an Aboriginal offender’[1] and is rightly considered to be a mitigating factor.[2] Participation in the process is not easy. More recently these principles have been reiterated in Director of Public Prosecutions v Heyfron[3]. After referring to the principles outlined in Honeysett v The Queen, Kaye JA stated:
In the present case, those factors apply, in fair measure, to the manner in which the respondent had participated in the Sentencing Conversation in the course of the plea hearing. While the participation of an offender, in that process, is by no means a ticket to freedom, nevertheless, as a matter of sentencing principle, it is appropriate to take it into account for the reasons explained by the Court in Morgan and Honeysett.
[1] The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
[2] Honeysett v The Queen (2018) 56 VR 375 at [54].
[3] [2019] VSCA 130.
Ms Dempsey who appeared on your behalf submitted that while a period of imprisonment is warranted, because of the matters raised in mitigation, most particularly your young age and your significantly deprived background, the imposition of a combination sentence pursuant to s 44 of the Sentencing Act 1991 is within range. Ms Dempsey also submitted that most, if not all of the prison component of the sentence should be considered as having been completed. Mr Roper who appeared on behalf of the Director of Public Prosecutions submitted that the seriousness of the offending, your criminal history and your breaches of previous orders warrant a term of imprisonment and a non-parole period.
In all the circumstances in my view, a combination sentence pursuant to s 44 is able to meet the relevant sentencing considerations. However, I am also of the view that there needs to be some additional period of time in custody before you are released on a community correction order. The community correction order will have both punitive and therapeutic components.
Sentence
Ms Atkinson please stand.
Lynette Atkinson, on Charge 1, attempted armed robbery, you will be convicted and sentenced to 9 months imprisonment. On Charge 2, theft, you will be convicted and sentenced to 2 months imprisonment which will be concurrent on Charge 1. That makes for a total effective sentence of 9 months imprisonment as the prison component of the sentence pursuant to s.44.
In addition to the prison component of the sentence, upon your release you will be placed on a community correction order with conviction for a period of two years. The community correction order will have both punitive and therapeutic components.
You will be required to complete 120 hours of community work and engage in programs to further address your drug use and you will be required to engage in programs to deal with your mental health. You will also be subject to supervision.
Further, pursuant to s 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation condition may be credited as hours of unpaid community work.
Pursuant to s.18 of the Sentencing Act 1991, I declare that 238 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 18 months imprisonment with a non-parole period of 12 months.
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