Director of Public Prosecutions v Atkinson

[2015] VCC 1198

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID ATKINSON

---

JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	27 August 2015
DATE OF SENTENCE:	27 August 2015
CASE MAY BE CITED AS:	DPP v Atkinson
MEDIUM NEUTRAL CITATION:	[2015] VCC 1198

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Bourke	Office of Public Prosecutions
For the Offender	Mr M Philips	Victoria Legal Aid

HIS HONOUR:

1David Atkinson, you have pleaded guilty to one count of sexual penetration of a child under 16 contrary to s.45(1) of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment.

2You pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence. 

3You have no prior convictions and there are no outstanding charges in your case. 

4A summary of prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows - 

5Some time prior to 20 November 2014 you became friendly with the victim of your offending's sister.  You were at that time resident in South Australia and your friend and her sister were resident in Warrnambool. 

6On about 20 November 2014 you travelled to Warrnambool to visit your friends and stayed at their home.  On the evening of 20 November 2014 the complainant and her sister and yourself shared a bedroom. 

7You had been told at that time by the complainant's sister that she, that is, the complainant, suffered from an intellectual disability.  At the time of the offence she was also 15 years old. 

8On the night of the offence you purchased a bottle of absinthe and were drinking it with the complainant's sister and the complainant.  The complainant was lying on a mattress in the bedroom.  You kissed her and after she pushed you away, you inserted one of your fingers into her vagina.  She described herself as being petrified and unable to move at that time.  She and her sister then left the room. 

9The following day, 21 November 2014, the complainant met up with her family and friends and a family friend and made a complaint to them in relation to your offending.  The matter was subsequently reported to investigating police. 

10On 23 November 2014 you were arrested by investigating police and conveyed to the Warrnambool Police Station.  You made a number of admissions against interest but denied the offending that was put to you.  You were charged and the following day released on bail. 

11I have received in evidence a victim impact statement of the victim setting out the effect that your offending has had upon her and I accept that it has been a traumatic experience for her, which has caused significant disruption to her life.  She states that she suffers now from anxiety and depression and of course the impact upon her must be considered in the context of her disability. 

12Offending of this nature is obviously serious, although I note that you were four years older than the complainant at the relevant time and the incident was one that took place in the context of you being intoxicated and obviously your judgment at that time was impaired. 

13Nevertheless, as I have said, offending of this type is serious and the sentence I impose must be calculated to deter you and others from offending in this way.  The sentence must also provide a degree of protection to the community and your offending must be denounced. 

14I now turn to your personal circumstances.  You were born on 3 May 1995 and are now 20 years of age.  You were 19 at the time of your offending. 

15Your family circumstances have been difficult, characterised by you having no contact with your biological father since you were a very young child and your mother died in 2008 when you were 13 years of age.  You have been supported, however, by your step-father and members of his family. 

16You were born and raised in Adelaide and your formal education concluded in Year 11.  Since that time your work history has been intermittent, although you have also pursued some interest that you have in photography and you are endeavouring to improve your reading and writing skills. 

17As I observed at the outset of these proceedings, you appear in court as an immature looking young man and it is plain to me that you may properly be described as to some degree vulnerable. 

18I have received in evidence a psychological report of Dr Mark Holmes, a practicing psychologist in South Australia, detailing your developmental history.  I have also received in evidence two reports in relation to psychotic episodes that you have suffered from, both prior to and after this offence occurred. 

19You also have a drug and alcohol history, although it does not appear to have contributed to your offending in this instance. 

20Nevertheless, it is clear from all of the material before the court that you require ongoing supervision and support in the community. 

21As I observed during the course of the plea hearing, in my opinion the purposes for which this sentence is to be imposed would not be achieved by a term of imprisonment in your case.  You are a young first offender and as I have already observed, plainly vulnerable. 

22As a result and with the support of the prosecution, I had you assessed for a community corrections order.  The report of Corrections Victoria states that you are suitable for such a disposition and in my opinion it is the appropriate proportionate sentence to impose in your case. 

23Any assessment of your prospects for rehabilitation at this stage must be guarded because it is clear that you do require ongoing support and supervision.  I heard from your step-brother that you can reside with him and he will continue to provide you with ongoing support. 

24Furthermore, I will impose a judicial monitoring condition in relation to the community corrections order requiring you to return to court and your progress can be monitored. 

25In the result the sentence of court is as follows -

26In relation to the charge of sexual penetration of a child under the age of 16 you are convicted and placed on a community corrections order for a period of two years. 

27You are required to attend at the Heidelberg Community Corrections Centre within two clear working days of the making of this order. 

28The mandatory terms in relation to all community corrections orders which you must comply with are as follows.  You must not commit an offence punishable by imprisonment during the period of the order.  You must comply with any obligation or requirement prescribed by the Sentencing Act.  You must report to and receive visits from the Secretary or delegate of the Department of Corrections.  You must advise a community correction officer within two working days of you changing your address or employment.  You are not permitted to leave Victoria without the permission of the Secretary or his or her delegate and you must obey all lawful instructions provided to you. 

29On the further special conditions, you are under the supervision of a community correction officer for the period of the order.  You must undergo assessment and treatment for drug abuse or dependency as directed.  You must undergo assessment and treatment for alcohol abuse as directed. 

30You must undergo mental health assessment and treatment as directed and you are required to attend for review by way of judicial monitoring on 15 December 2015 at 10 am in the County Court at Melbourne. 

31Do you agree to entering an order on those terms? 

32OFFENDER:  Yes. 

33HIS HONOUR:  Thank you.  Mr Atkinson, because you have pleaded guilty to this charge and I have convicted you of it, you are going to be placed on a register in relation to persons who have committed the offence you have committed.  There are a number of obligations that you will have in relation to that, which Mr Philips will explain to you. 

34So I have made the order pursuant to the Sex Offenders Registration Act that the accused be placed on that for a period of 15 years.  I have no choice in relation to the period of that order, which in a case like this is plainly regrettable, but that is the law. 

35You will explain the effect of the CCO to your client, Mr Philips? 

36MR PHILIPS:  Yes, I'll take him through all of Your Honour's orders. 

37HIS HONOUR:  All right.  I have got to sign that.  The court will keep an eye on him, Mr Philips, but that is not to make things difficult for him, just to make sure that Corrections are providing him with the resources that he needs. 

38MR PHILIPS:  Indeed. 

39HIS HONOUR:  All right. 

40MR PHILIPS:  Yes, Your Honour. 

41HIS HONOUR:  Thank you.  Yes Mr Bourke. 

42MR BOURKE:  Does Your Honour - I turn to the issue of the forensic sample order. 

43HIS HONOUR:  You will just have to go and provide a sample to the police, all right?  That is again a procedural thing that is required as a result of these proceedings.  Do you follow? 

44OFFENDER:  Yes. 

45HIS HONOUR:  All right.  So as I have said, you are going to have to come back to court on 15 December but that will be in Melbourne, not down here and we will keep an eye on you, all right?  So you do not, it is not anything you need to be worried about, the court will just ensure that the CCO is being properly managed in your case, all right? 

46OFFENDER:  Okay. 

47HIS HONOUR:  All right.  Yes, thank you. 

---