Director of Public Prosecutions v Atkinson

[2017] VCC 1344

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 17-00799

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON ATKINSON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	19 September 2017
CASE MAY BE CITED AS:	DPP v Atkinson
MEDIUM NEUTRAL CITATION:	[2017] VCC 1344

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	Mr D. O'Doherty
For the Accused	Mr L. Hartnett

HER HONOUR:

1Aaron Atkinson, you have pleaded guilty before me to one charge of being in possession of a drug of dependence and one charge of trafficking in a drug of dependence in a commercial quantity.

2At about 1.20 am on 8 October 2016 police patrolling Bree Road in Hamilton intercepted a utility driven by you.  That vehicle was searched and in the glove box police found 29.7 grams of Cannabis L and on the back seat a mixture of plant material, being Cannabis L, weighing 4 grams. 

3Your possession of that cannabis underlies Charge 1 on the indictment, being in possession of a drug of dependence.

4You were taken to the Hamilton Police Station where you were searched.  There a Ziploc bag containing 138.8 grams of methylamphetamine was found hidden in a sock that you were wearing, the purity being 79 per cent, resulting in a total quantity of methylamphetamine or ice of 109.7 grams. 

5Your possession of this amount of methylamphetamine underlies Charge 2 on the indictment, trafficking in a drug of dependence in a commercial quantity.

6The cut-off point between methylamphetamine in a marketable quantity and a commercial quantity is 100 grams. 

7The maximum penalty for possession of a drug of dependence is five penalty units, it not being alleged that your possession of that cannabis was anything other than a small quantity for personal use. 

8The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years imprisonment.

9You were remanded in custody on 8 October 2016 but ultimately granted bail on 9 February 2017, you therefore having spent 128 days in custody by way of pre-sentence detention. 

10A plea to the charges was made at a committal mention stage on 21 April 2017.  No witnesses were cross-examined or asked to give evidence and it is accepted that this is a plea made at the earliest opportunity.

11I now turn to your personal circumstances.  You are 34 years of age.  You reside with your father in Hamilton and you have the occupation of a landscaper. 

12You were born in Hamilton.  You were the only child of your parents, although you have a half-sister who was born to your mother, who unfortunately died of a suspected heroin overdose when she was 28.

13Your parents separated when you were three and you remained with your father who raised you.  You have a very close relationship with him, and I have said, you still live with him. 

14You had some significant difficulties in your childhood.  When you were four or five your father was obliged to work in Melbourne for overnight periods during the week and so you were placed in council approved day care where you were sexually molested for a period over two years.  That molestation, including penetration was by a friend of the owners of the day care centre who occasionally visited.

15You told no-one until you were 15.  Thereafter, you spoke to a girlfriend who urged you to tell your father, which you did.  He immediately took you to the police where you made a statement. 

16Ultimately, the matter was taken to trial.  This was about 20 years ago, but during cross-examination you became extremely agitated and upset, ran from the court and the proceedings were discontinued.  It appears you have had little psychological assistance in this respect and soon after this incident you tried to hang yourself.

17It appears you have always had significant learning difficulties.  You left school at an early stage, and following the trial, moved to Western Australia to live with your mother with whom you still enjoy a close relationship.

18There you worked in paving and landscaping and during that time formed a relationship with a woman for a three year period by whom you have an eight year old son.  However, that relationship ended when you went to work in the country to take up a job in irrigation and farming, and the mother of your son re-partnered.  You still enjoy a good relationship with that former partner.

19You remained living and working in Perth until four years ago when your father fell ill and was diagnosed with Parkinson's Disease.  You returned to Hamilton and have cared for your father since and resided with him since.

20You formed a second relationship back in Hamilton.  A son was born of that relationship but it ended shortly after his birth although you do still enjoy an amicable relationship with his mother.

21Originally when you came back to Hamilton you worked as a concreter and a paver but then moved to self- employment as a landscaper and a paver.

22During the plea an historical psychological report from clinical psychologist, Ken Dungey, dated 9 October 2001 was tendered on the plea.  Ordinarily, the age of such a report would not be of assistance, however in this case, it was important due to an assessment by Mr Dungey, and because of a reference he made to an earlier intelligence assessment made in 1994 whilst you were at school which he referred to.

23It appears that when you were 17 a psychologist, Lauren Campbell, of the Direction of School Education undertook this assessment in connection with an attempt to arrange support for you in the normal school stream.  There it was discovered that you suffered significant learning difficulties, including auditory and memory difficulty, with a verbal capacity score at the lower end of the borderline intellectual disability range and you were found to have the academic ability of a six to eight year told at which time you were well into your teens. 

24It appears the learning difficulty was so severe that you have never learned to read or write.  This was a finding confirmed by Mr Dungey in 2001.  It was his belief that you had suffered some sort of brain damage in an organic way, that is, in a way not necessarily involving physical trauma.

25The report from Mr Dungey revolved around your feelings at the time of the court case involving the man who sexually abused you.  It appears to be very much to your credit that after such a traumatic episode in your life you have continued on to remain gainfully employed and to, largely, remain out of any criminal trouble.

26There is some old offending dating from 2000 and 2001 but it is reasonably minor and not connected to the offending that has brought you before this court. 

27In 2016 you were convicted in the Hamilton Magistrates' Court of stalking, however, your counsel explained that this involved you attending on your former partner with presents and the lower level nature of that offending was reflected, in my view, in the penalty, which was an undertaking to be of good behaviour.

28Turning to the current offending, I was informed that about 12 months before this offending you attended a bar one evening, made the acquaintance of persons who were very much involved in both drug use and drug trafficking, specifically involving the drug ice, and you very quickly developed a major and serious ice addiction. 

29At the time of the offending you had used ice on a daily basis which was costing you about $1,000 a week, clearly, well beyond your financial circumstances. 

30You had been asked on a number of occasions by those who supplied you with drugs to act as a courier for them, that is, to move drugs from one place to another, which you had resisted but eventually you gave in, essentially because of the financial burden that your drug addiction was causing and you were to be paid for your role in moving the drugs, with provision of the drug itself.

31Your counsel made some play of what occurred at the time of your offence.  At that time police also located an ice pipe in your car.  You were asked if you wanted it.  You said, "No, you would smash it" and police asked if you wanted them to smash it, and indeed, they did this on your say so. 

32You had apparently aroused the sympathy of police on that occasion who described your demeanour when you were apprehended as one of extreme distress involving uncontrollable crying. 

33You remained thereafter in gaol for 128 days which was more than ordinarily difficult as you were placed at the Melbourne Remand Centre, which was still operating in lockdown fashion for all prisoners held there, in the aftermath of the riots which had occurred before your incarceration.

34It has long been recognised that service of a term of incarceration involving the conditions surrounding lockdown, that is, 23 hours out of 24 in a cell and being taken out for exercise for one hour a day, is to be regarded as more than normally serious service of a term of imprisonment and I do take that into account.  Indeed, this form of incarceration has previously been described as being worth double, if you like, what a term of incarceration under normal circumstances would be.

35You were ultimately, as I have said, released on bail and as soon as you were released you entered the Bradshaw House Drug Rehabilitation Centre in Halls Gap where you remained in their program for 28 days 

36I received a written reference from the manager of that program attesting to your participation and engagement in the program which was described in very positive terms.  Particular mention was made of your determination to deal with your drug problem, not just for yourself, but so that you could resume the positive parenting role you had taken with both your children. 

37On your release you returned to reside with your father on bail conditions which were fairly strict and involved a curtailment of your movement around the area.  As a result you were only able to engage in local rehabilitation facilities which were somewhat limited. 

38Your second cousin, Leah Loney, who resides in Portland and who has herself been involved in substance abuse many years ago, but who has particularly been involved with Alcoholics Anonymous since 2012, gave evidence on the plea of the limited access you had to rehabilitative services.  There is no Narcotics Anonymous available in your area, as there is in Portland, so you instead attended upon Alcoholics Anonymous which engages in the same 12 step program as would be required by Narcotics Anonymous.

39You have regular contact with your cousin who takes a supportive/counselling role with you.  You have also engaged in Outreach Services offered in your region by Bradshaw House when they are available.

40This is, of course, serious offending.  Ordinarily, persons engaging in couriering drugs in the amount that you did can only expect to be met with a term of imprisonment.  It appears not to be disputed that this is the role that you were playing, and certainly the fact that you were engaging in this activity because of your own addiction, has relevance to the sentencing exercise before the court and does not bear the aggravating feature of a person being engaged in the movement of a commercial quantity of drugs for financial purposes as a cynical exercise not involving any use of drugs themselves. 

41It is quite clear that this offending is out of character for you, given your age and prior history, and was committed as a result of the addiction which you very swiftly formed and which was of a severe standard at the time of this offending. 

42In sentencing you, I take into account your general vulnerability, that is, given your intellectual difficulties, the trauma of your sexual abuse and the trial thereafter, the fact that it was something in the region of 16 years, apart from the one matter that I have referred to, that you had ever been in trouble with the law, the fact that you were a particularly vulnerable person in terms of being able to be picked up by the sorts of associates you unfortunately made on the night that you attended that bar and that you have made earnest attempts, in my view, to rehabilitate yourself with some success.

43In sentencing you, I also take into account the particularly difficult period of time that you spent in custody at the MRC in the aftermath of the riots, which as I have already said, took place before you arrived there. 

44You reside with your father.  You continue to work.  You have good support.  You are attending an appropriate organisation for the treatment of your addiction, albeit Alcoholic as opposed to Narcotics Anonymous, and I do regard your rehabilitative prospects as positive. 

45You have been assessed as suitable for placement on a community corrections order and have been assessed as a medium risk of re-offending.  I do not disagree with that assessment.  Although I am satisfied you are well on the road to defeating and overcoming your addiction, it is still reasonably early days.  You have been on this path in the community only for about seven months.

46You are described as having a reasonable insight into your offending behaviour, and ultimately it was conceded by the prosecution, that a combination sentence, that is a sentence involving the imposition of a term of imprisonment with a community corrections order, was not out of the range.

47However, it was the view of the prosecution that the time served by you, that is 128 days, was not of sufficient length to reflect the seriousness of this offending.  Ordinarily, I would have no hesitation in agreeing with that submission from the prosecution however as I have said, in my view, there are particular circumstances relating to your offending. 

48I am satisfied you took a subordinate role in terms of the trafficking that was organised by others.  As I have said, you have personal frailties, which I have already outlined, which in my view, would make you vulnerable both to the introduction of methylamphetamine and assistance to trafficking operations, which I would be far less inclined to accept from another person not suffering those difficulties in a man of your age.

49I have already referred to the difficulties surrounding your incarceration in the MRC and I am reluctant to return you to the prison environment given the gains you have made and given the particular difficulties that you suffer.

50I also accept that you are extremely remorseful for your offending.

51I have therefore decided that I will sentence you to a term of imprisonment which amounts to the period of time you spent in custody and will deal with what may be the shortfall in that term by increasing the length of the community corrections order, which has been described by the Court of Criminal Appeal in Boulton's case as a punitive order as well as a rehabilitative one.

52I am satisfied that specific deterrence is not a principle to which this court need have regard in sentencing you.  I am satisfied that the aspects of general deterrence are adequately met by the sentence I propose to impose. 

53Will you stand up, please, Sir.  On Charge 1, you are fined $100. 

54On Charge 2, you are sentenced to 125 days imprisonment and thereafter are to be released on a community corrections order which will last for a period of three years. 

55Now I can only place you on this order with your consent so I need to explain to you what the conditions of that order are.

56They are, firstly, that you must report to the Office of Corrections within two working days of the making of this order, that is, by Friday of this week. 

57Whilst on this order you must not commit any offence punishable by imprisonment.  So if you offend whilst you are on this order, that is in the next three years, you will be brought back in front of me, you will be breached and I would have very little choice but to send you to gaol, sir, so you need to bear that in mind.

58You must inform the Office of Corrections of any change of address or employment within 48 hours of the making of that change.

59You may not leave Victoria without the permission of the Community Corrections Office. 

60You must report to and receive visits from the Community Corrections Office.  You must not attend upon the Community Corrections Office under the influence of drugs or alcohol and you must obey all lawful directions of the Community Corrections Office. 

61I am going to order that you undertake 250 hours of unpaid community work.  You are to attend for assessment and treatment for drug use and you are to attend for assessment and treatment for psychological problems.

62You are also to be under supervision, and I am going to order judicial monitoring, that is, every three months I am going to be ordering that you appear before me.  I will get a report from the Corrections Office which will talk about your progress on the order.  All right, so I will be informed all the time of how you are going. 

63Are you prepared to enter this order, Mr Atkinson?

64OFFENDER:  Yes, ma'am.

65HER HONOUR:  Thank you, have a seat. 

66MR HARTNETT:  Thank you, Your Honour.MR O

67HER HONOUR:  I order that the 128 days has already been served by way of pre-sentence detention.

68I declare that pursuant to s.6AAA, that had you not pleaded guilty to this charge, I would have sentenced you to a term of imprisonment of four years and order that you serve a minimum term of three years.  Thank you. 

69The first judicial monitoring will occur at 9.30 on Tuesday 18 December and what you can do is you can do it by way of video link.  I am not requiring you to travel to Melbourne.  I think that is too onerous, so if you go to Corrections, they have got a video link set-up and we can do the judicial monitoring that way.

70OFFENDER:  Okay.

71HER HONOUR:  All right?

72OFFENDER:  No worries, thanks, ma'am. 

73MR O'DOHERTY:  A couple of orders that we sought  I don't think they were opposed.

74HER HONOUR:  Yes.

75MR O'DOHERTY:  Was the forensic sample order and a disposal order for the drugs, Your Honour.

76HER HONOUR:  Yes.  I am ordering that you attend upon police within 28 days for a swab to be taken from your mouth and I need to tell you that, if you resist the taking of that swab, police may use reasonable force in order to obtain it.  Thank you. 

77(Orders signed.)

78Can you also stand up please, Mr Atkinson.  This is very, very serious offending.  I am sure Mr Hartnett discussed with you that usually most people who offend in this way do not get the chance that you have.  They go to gaol.  Did you hear what I said?  If you had pleaded not guilty I would have sentenced you to four years gaol and ordered that you serve a minimum term, so you have got a lot to lose by not sticking to this order.

79OFFENDER:  Yeah.

80HER HONOUR:  If you fall back into drug use, you just need to realise, that is inevitably going to lead to quite a serious gaol sentence.  Do you understand?

81OFFENDER:  Yes, ma'am.

82HER HONOUR:  It is really important you do everything that Corrections tell you.  All right, thank you, have a seat.  Thank you, we will get you to sign that, thank you. 

83(Orders signed and acknowledged.)

84I will just hand back the reference.  I thank counsel for their invaluable assistance on the plea.

85MR O'DOHERTY:  Thank you, ma'am. 

86MR HARNETT:  What did he say?

87HER HONOUR:  He said, "Thank you, ma'am".  It was a really nice response which you failed to emulate and it is too late now.  All right.

88MR HARTNETT:  That backfired.

89HER HONOUR:  Completely did, thank you very much.  Yes, is there anything else I need to attend to?

90MR O'DOHERTY:  No, Your Honour.

91HER HONOUR:  No, we are done?

92MR HARTNETT:  Thank you, Your Honour.

93HER HONOUR:  So we will adjourn until 9.30 tomorrow morning, thank you.

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