Director of Public Prosecutions v Atkinson

[2019] VCC 621

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00448

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH ATKINSON

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 May 2019
CASE MAY BE CITED AS:	DPP v Atkinson
MEDIUM NEUTRAL CITATION:	[2019] VCC 621

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 L. Treasure
For the Accused	Mr F. Ralph

HIS HONOUR: 

1Joseph Atkinson, you have pleaded guilty to:

·    One charge of theft of a Holden motor car.  This offence carries a maximum of 10 years' imprisonment.

·    One charge of burglary.  The maximum for this offence is 10 years' imprisonment

·    One charge of theft of firearms, ammunition identity cards and other items.  This offence also carries a maximum of 10 years' imprisonment.

·    Four charges of handling stolen goods, including watches, jewellery, and currency to a value of $18,000 and to a number of identification, debit, credit and banking cards.  The maximum penalty for each of these four charges is 15 years' imprisonment. 

2You have admitted extensive prior convictions.  It will be necessary to return to consideration of those matters later in the sentencing remarks.

3The prosecution tendered the prosecution opening on plea as Exhibit A.  A summary of your offending is as follows.

4You were arrested on 8 October 2017.  Police found a mobile phone in your possession.  Much of your offending was traced from your movements and text messages found on the phone after a detailed analysis of it was undertaken by police. 

5On 4 October 2017, offenders broke into one victim’s home and stole his car keys.  With those keys, you admit that you stole the Holden motor car sedan, the subject of Charge 1.  You drove that car for some days. 

6On 5 October 2017, you and other offenders broke into a house in Linlithgow Road, Toorak.  It is apparent that you were all there (although you appeared to have come and gone from the address several times) for some four or five hours.  The house was completely and systematically ransacked.  In the course of the burglary, you and co-offenders used a pickaxe to pry open a large black firearms safe and then used a three-inch angle grinder from the shed to cut a hole in the rear of the firearms safe.  Nine rifles and one shot gun stolen together with ammunition and other items.  The subsequent analysis of your phone uncovered a message sent from it at 11:23am to an unknown person stating that further grinders were needed.  

7The analysis of your telephone showed that you left the property on a couple of occasions during the course of the burglary and returned to it.  Nevertheless, by your plea you admit that you played a role in the burglary. 

8It is significant to note that the Holden Commodore appears to have been used as transport during the burglary.  When the owner returned home at 2:20 pm on the day of the burglary, he noticed a Holden Commodore sedan in the driveway of his home.  He tooted the car horn and the Commodore left.

9Some months later, four of the firearms were recovered when another person unconnected with you was arrested. 

10On the plea, your counsel stated that you instructed him that you did not know that firearms were taken during the course of the burglary.  Your plea of guilty to burglary serves to admit that you entered the property with the intention of stealing and your plea to theft is that you acknowledge that firearms were taken in the course of that theft. 

11When you were arrested, the stolen Holden Commodore sedan was found a few hundred metres from your father’s address.  The sedan was bearing false registration plates.  Documents stolen during the course of the burglary and other stolen items were found in the car.

12You were interviewed by police but declined to answer questions. You were remanded in custody and you have now served 569 days' pre-sentence detention. 

13The theft of motor car and burglary are serious instances of this type of offending.  The theft is serious as you used the car on a series of days and in the course of (it seems) the burglary.  The burglary itself was committed over the course of some hours from just after 9am until you were discovered by the owner in the driveway of his house at about 2:20pm.  

14The burglary was executed with calculation and deliberation.  The use of and call for further power tools to access firearms stored in a safe within the house is nothing short of audacious.  Your actions in leaving the house and returning to it on a couple of occasions speaks of the systematic way in which the crime was committed.  The text from your phone speaks of your understanding of your co-offenders' attempts to access the contents of the safe, even if it was true that you did not know the safe contained firearms.  As to that, quite frankly however, I am sceptical about those instructions to your counsel, particularly in light of your plea of guilty to Charge 3 on the indictment. 

15There is insufficient evidence for me to form a detailed conclusion about your precise role in the burglary.  There is no evidence that you were the planner or mastermind of its execution.  Nevertheless, in light of your admitted participation, this is a serious instance of this offending and your moral culpability is high. 

16I note that you made a no comment record of interview when interviewed by police.  You told your counsel that you had been using drugs at the time of the offending.  This was provided as an explanation rather than as mitigation of your offending. 

17Your offending by way of handling stolen goods is also serious.  The value of the goods found in your possession and the various identity and bank cards belonging to different people found in the stolen car leads to the conclusion that your offending was widespread, determined and indiscriminate.

18In the end, I consider that the principles of deterrence, denunciation and just punishment must figure prominently in the sentence that I impose.  I say that subject to what I am about to say about your personal circumstances. 

19I turn now to your personal circumstances. 

20You are 25 years old and you were born on 9 January 1994.  You were 23 years old at the time of this offending. 

21You were born in Melbourne as the youngest of four children.  Your parents separated when you were four and you attended primary school in Preston.

22Present at the court hearing on your plea was your girlfriend, your grandfather, your father and two of your sisters, both of whom provided references in support of you.  Your oldest sister Michelle is employed in the social work sector.  Her reference speaks of the significant traumatic childhood events surrounding your early years which led to you being placed in your grandfather's care by DHHS.  

23Your parents both had significant difficulties with drugs.  She notes that as you grew older and you were able to leave your grandfather's care, you formed a close bond with your mother who managed to overcome her addictions and stabilise her mental health.  Your mother suffered a fatal cardiac arrest when she was driving back from a Youth Justice Centre where you were being held in 2015. 

24You were diagnosed from an early age as being within the mild intellectual disability range.  In 2008 at age 14, you were assessed as having a full-scale IQ of 60; with higher results for verbal comprehension and perceptual reasoning but with a weak working memory and processing speed indices.  In 2013 at age 19, psychologist Pamela Matthews assessed your abbreviated scale IQ at 64.  I note that Mr Casey expressly stated that he did not seek to invoke the principles enunciated in Verdins on your behalf because of how he placed your progress in custody. 

25Your mental health history has been complicated by your protracted and significant drug use.  You reported that you started smoking cannabis at age 13 and routinely smoke 2 to 3 g per day.  You appear to have stopped smoking cannabis at age 19 or 20.  You started using the drug ice at age 16 or 17 and used it daily from age 18 or 19.  You also regularly used the drug GHB.  It was put on your plea that you were using drugs up to the time of your arrest on this offending but you have been drug-free whilst in prison.  Mr Casey did not have the drug screen results but I accept that you have returned negative tests whilst in custody. 

26It seems that school was not easy for you.  You had learning difficulties and behavioural issues.  You had a teacher's aid in primary school. You attended secondary school till Year 7 and then went to the Pavilion alternative school until about Year 9 or 10.  You had some further education when you were detained in the Malmsbury Youth Justice Centre. 

27I will take into account the difficulties you faced in your childhood in the sentence I impose upon you – both as to your cognitive impairment and your upbringing. 

28You were previously in a long-term relationship that was marked by mutual drug use and abuse.  You have two children from that relationship.  Nothing was said on the plea about your relationship with your children.  Rather, I was informed that you have been in a relationship with Stacey for about three years who, as I mentioned, was present in court to support you.  Stacey is not and has not been a drug user.  I note that she was, however, your partner at the time you committed these offences. 

29You have extensive prior convictions over nine previous court appearances.  You have prior convictions for offences of burglary, violence, driving matters, dishonesty, family violence and breach of bail. 

30Previous psychological reports stated that you have been vulnerable in custody.  On this occasion however, Mr Casey submitted that you have used your time extremely productively and that you had asked to be transferred to Marngoneet so that you could complete a number of courses.  

31In the course of the plea, I listed the 20 courses you have undertaken in order to settle better into your immediate surroundings, and to provide you with better opportunities when you are eventually released.  I was told that you work as a peer listener in order to help new prisoners settle in and that you are undertaking the Narcotics Anonymous program offered to prisoners.  You are completing the 12 step program to recovery. 

32It was further submitted on your behalf that you have now the benefit of the support of your girlfriend Stacey and of your father and sisters on your release from prison.

33It is necessary to say something at this point of your two earlier court appearances in the County Court.  Both the sentencing remarks of Judge Lawson and of Judge Gaynor were provided to me.  On 15 July 2014, you were sentenced by Her Honour Judge Gaynor on one charge of aggravated burglary, one charge of causing injury recklessly and three charges of theft.  Judge Gaynor sentenced you for this serious offending to a term of 12 months' detention in a Youth Justice Centre.  

34Significantly on that occasion, Judge Gaynor noted that your road to rehabilitation was likely to be more successful if you remained in Youth Justice than if you were placed in an adult prison.  Judge Gaynor warned you in explicit terms that if you got out of custody from Youth Justice and committed another offence then you would certainly go to gaol.

35On 27 April 2016, Her Honour Judge Lawson dealt with you for offences of attempted armed robbery, being a prohibited person in possession of a firearm, theft, deception, resisting an emergency worker on duty, possess a drug of dependence and handle stolen goods together with other summary offences.  Those offences occurred on about 25 March 2015.  I make the observation that you could only have been released from youth custody relatively shortly before this offending occurred.

36The remarks of Judge Lawson are particularly apposite to the plea conducted before me.  Judge Lawson notes that you had gained insight from your time in custody and that your experience of custody had assisted you to resolve to stop your offending and that you said you never wanted to go back to gaol.  At that hearing, you had the support of your father. You told psychologists who assessed you that you had a desire to overcome your addiction to drugs.  Judge Lawson noted the stern warnings given to you by Judge Gaynor in 2015.  

37Further, Judge Lawson referred to your productivity whilst on remand for the matter before her.  You had completed a number of employment-related programs and had attended Narcotics Anonymous meetings. 

38Judge Lawson sentenced you to the period of 398 days' imprisonment - that is time served - and to a three-year CCO with special conditions set out in a justice plan.  This offending contravened that order. 

39Despite the opportunities provided to you by this court, you have continued to commit serious offences.  As Mr Casey conceded in his submissions, you have run out of chances.  This offending must be met by a term of imprisonment, and I will set a non-parole period.

40I could not help but notice the similarity between the way you conducted yourself in prison and the plea conducted on your behalf before Judge Lawson, as recorded in her sentencing remarks, and the plea presented before me.  Whilst I do not doubt your sincerity of your determination whilst in prison to overcome your drug addiction and to lead a more ordered life in the community, it is apparent that you will need a high level of structure and assistance if you are truly determined to stay out of trouble and stay out of jail.

41In this respect, the neuropsychological report of Laura Scott dated 22 November 2017 states just this but notes, encouragingly, that you may experience modest improvements in your intellectual functioning if you remain drug free.  Indeed, Mr Casey stated that you reported to him that you feel as if you are functioning better after 19 months of abstinence from drugs.

42In this case, the structure and assistance would come in the form of the prospect of parole.  You will need to continue to work hard in prison towards being granted release on parole.  Thereafter, you will need to work even harder in the community if you are to maintain parole.  The consequences of breaching parole can be your immediate return to prison to serve the balance of your sentence. 

43It is clear from reading the references of Michelle and your sister Jodie and the plea made on your behalf by Mr Casey of counsel that you have considerable support from your family and girlfriend.  The presence of this support and your still relatively young age lead me to conclude that you still have some prospects for your rehabilitation.  I do however remain somewhat guarded about your prospects for rehabilitation.  It is encouraging however that you have undertaken so many vocational courses whilst in prison and that you are working as a peer listener.  These factors add to your prospects for rehabilitation. 

44I accept that your plea of guilty in this case should be used to mitigate the sentence I impose upon you.  Mr Casey submitted that you were previously advised to run a trial on these matters.  That added to the delay in the resolution of this matter.  When you engaged new solicitors, you received different advice and you changed your plea.  Nevertheless, Mr Casey submitted that your long period of pre-sentence detention has enabled you to demonstrate insight into your offending and that the plea is made genuinely and with some remorse.  Your sister Michelle also speaks of your remorse, regret and insight into your offending.  I am prepared to accept that your plea has both utilitarian benefit and to some extent at least, facilitates the course of justice.

45In her sentencing remarks, Judge Gaynor spoke plainly and directly about the life you have in front of you if you do not give drugs away.  She said:

I accept that you were remorseful for your actions.  I also accept that you are a young offender, that you have an intellectual disability, that you have good prospects for rehabilitation as long as you give the drugs away, and that you have a lot of very positive family support.

46Then, Judge Lawson said in her sentencing remarks,

It is recognised, and it was stated by your own counsel, that you were at the crossroads and that you appreciate that, and you have now given an undertaking to commit to remaining drug free and also to take up the various opportunities that are now being provided to you through the community corrections order and also the justice plan.

47At this stage, I am going to ask you to stand up, Mr Atkinson.  And I want you to listen very carefully to me. 

48I am going to tell you plainly.  You have run out of chances.  There are no more chances for you.  If you keep offending, you will go back through that door time and time again.  If you keep offending and you stay on the drugs, there is nothing for you but a life of returning to gaol.  Do you understand?

49ACCUSED:  Yes.

50HIS HONOUR:  On Charge 2, the charge of burglary, you are convicted and sentenced to two years and four months' imprisonment.  That is the base sentence.

51On Charge 1, the charge of theft of the Holden Commodore, you are convicted and sentenced to eight months' imprisonment.  Three months of that sentence is to be served cumulatively on the base sentence and all other sentences.

52On Charge 3 which is the theft relating to the course of the burglary, you are convicted and sentenced to 15 months' imprisonment.  Two months of that sentence is to be served cumulatively.

53On Charge 4, a charge of handling stolen goods, you are convicted and sentenced to nine months' imprisonment.  Three months of that sentence is to be served cumulatively.

54On Charge 5, a charge of handling stolen goods, you are convicted and sentenced to three months' imprisonment.  One month of that sentence is to be served cumulatively.

55Charge 6, handling stolen goods, you are convicted and sentenced to three months' imprisonment.  One month of that sentence is to be served cumulatively.

56Charge 7, a charge of handling stolen goods, you are convicted and sentenced to three months' imprisonment.  One month of that sentence is to be served cumulatively.

57The total effective sentence is a sentence of three years and three months' imprisonment.  I order that you serve a non-parole period of two years and one month before you are eligible for release on parole. 

58I declare the period of 569 days pre-sentence detention reckoned as already served. 

59The 6AAA declaration is but for the plea of guilty, I would have imposed a sentence of five years with three years, three months to serve. 

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