Director of Public Prosecutions v Atkinson

[2015] VCC 210

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-14-1832

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM ATKINSON

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	26 February 2015
DATE OF SENTENCE:	26 February 2015
CASE MAY BE CITED AS:	DPP v ATKINSON
MEDIUM NEUTRAL CITATION:	[2015] VCC 210

REASONS FOR SENTENCE
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Subject:         Armed Robbery
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:      3 years' imprisonment with an 18 month non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran
For the Offender	Mr R. I. E. Willcox

HIS HONOUR: 

1William Atkinson.  You have pleaded guilty to each of five charges on Indictment C1409625.  Charge 1 is a charge of armed robbery for which the maximum penalty is 25 years' imprisonment.  Charge 2 is a charge of recklessly causing injury for which the maximum penalty is five years' imprisonment.  Charges 3 and 4 are charges of making a threat to kill for which the maximum penalty is ten years' imprisonment and Charge 5 is a charge of theft which the maximum penalty is ten years' imprisonment. 

2At the time that you pleaded guilty before me today, you also admitted a lengthy criminal history.  That criminal history spans some 24 pages.  I was told during the course of the plea and accept that in the period of approximately the last 20 years, you have spent eight to nine years of that time in prison. 

3You pleaded guilty or indicated that you would plead guilty to these charges at committal.  When you were arrested by the police, you were cooperative and you showed the police where various objects that you had stolen were located at your premises.  Because you have pleaded guilty to the charges you are entitled, in my view, to a lesser sentence than would otherwise be the case should you have fallen for sentencing after a trial.  By your pleas of guilty you have indicated, in my view, genuine remorse and you have saved the time and cost of a trial.  I have taken all of this into account and it is reflected in the sentence that I will shortly pass. 

4The circumstances of your offending are contained in a prosecution opening dated 26 February 2015 which I marked as Exhibit A and which was read to the court by the prosecutor, Ms Moran.  Your counsel, Mr Willcox, accepted that the prosecution summary was accurate and forms a proper basis upon which I can proceed to pass sentence. 

5You have been in custody for these matters since the time of your arrest on 14 March 2014.  Whilst you have been in custody for 350 days, only 289 of those days can be treated as pre-sentence detention for the purposes of this sentencing.  However, when passing sentence, I must have regard to the principles of totality.  I have taken account of the fact that you have in fact served 350 days. 

6It is not necessary that I here repeat the circumstances of your offending which are accurately set out in the prosecution opening.  On 13 March, you, with others, attended uninvited at a premises occupied by two young men where you there assaulted and robbed them.  The prosecution case against you on some of the charges is on a joint criminal enterprise basis and the summary quite readily acknowledges insofar as the charge of armed robbery is concerned, which is the most serious of the charges, that the Crown case could not prove beyond reasonable doubt that you ever wielded a weapon during the offences.  So on the most serious charge, you have, in the eyes of the law, committed the offence not because you armed yourself with a weapon for the purposes of robbing the occupants of the premises, but you were with others who did and the use of the weapon was within the agreement or implicit in the agreement which you made with those others to carry out illegal acts within the premises. 

7The incident in question must have been a terrifying experience for the victims.  You went into the house with others, you threatened violence and you carried out acts of violence, and in the course of doing so, you struck one of the occupants and you twice called to the occupants not to call the police, indicating that if they did, you would come back and slice their throats.  With the benefit of hindsight, that might be seen to be a threat recklessly made in the circumstances.  However, from the recipients point of view, that is the occupiers of the premises, it was no doubt all part of the terrifying experience that they endured at your hands and at the hands of your associates. 

8Whilst your offending is serious, it's not, in my view, at the highest level of this kind of offending. 

9You, Mr Atkinson, represent a difficult sentencing subject.  You are 31 years old.  You are of Aboriginal descent from Swan Hill.  You have limited education, having left school partway through year 8 and you suffer from cognitive impairment and the effects of long term drug and substance abuse. 

10Mr Willcox tendered a very detailed report from Susan Carey, a clinical neuropsychologist, dated 6 February 2015.  That report of some eight pages is of great assistance in identifying the psychological problems which you have, but in the context of the criminal justice system, it is of little assistance in providing answers which will assist you to rehabilitate yourself and assist the community in knowing that you are rehabilitated.  So whilst it provides a very thorough and comprehensive diagnosis, it is short on remedy. 

11Ms Carey carried out some testing to assess your intellectual functioning.  On p.5 she said: 

"General intellectual functioning, based on demographic information and psychometric factors, Mr Atkinson's premorbid abilities were estimated to be within the borderline to low average ranges.  Mr Atkinson's general intellectual abilities fell in the extremely low level (FSIQ equals 66; first percentile), well below premorbid estimates.  His verbal abilities (including verbal reasoning skills, general fund of knowledge, and vocabulary) were within the extremely low range (first percentile).  His visuospatial skills varied somewhat, such that visuoperceptual/visuoconstructional skills and aspects of non-verbal problem solving were within the low average range but he demonstrated a significant weakness in non-verbal abstract reasoning (extremely low range). 

12Ms Carey went on to opine that your neurocognitive profile indicates that your intellectual functioning is within a mild intellectual disability range from a cognitive perspective.  The report which refers to some 13 other reports that have been prepared in relation to you but which are not before the court documents a long history of assessment for alcohol and other substance abuse and the long term effect which it has had upon you.  At the time of this offending, you told Ms Carey that you were affected by amphetamine at the time that this offence occurred and alcohol. 

13

During the course of the plea, my associate contacted the community corrections service and was advised that in respect of eight orders, some for parole and some of a community based order that have been made in respect of you in the past, you have breached seven of them.  Mr Willcox in his plea and in the submissions that were filed by the court on your behalf by

Ms O'Mare, it is submitted that I should have you assessed for a community based order and impose conditions which will, in summary form, keep you in line.  I am troubled by the submission but understand it.  It is a perfectly sensible submission to make.  But when one has regard to your extensive criminal history, such a disposition would, in my view, only set you up to fail. 

14I was told and accept that when you are released from prison, you intend to live with your father in Swan Hill.  He told me that he thought that you will be able to get unskilled work in the agricultural area in and around Swan Hill, but I think that that is, at the best, questionable.  I cannot see that there are any firm structures in place to support you which is the kind of support that you really need, and the treatment that you need will not come from the making of a community corrections order. 

15You told me that you have spent your time on remand partly at Port Phillip Prison and partly at the Melbourne Remand Centre where you are presently located.  Whilst there, you have undertaken some courses and I was provided with and have taken into account a number of urine screens which have been taken from you whilst in custody, all of which have shown a negative result.  That is to your benefit. 

16The sentence that I pass I think would normally reflect proper application of the principle of general deterrence in a case like this.  The sentence that I will hand down shortly does address general deterrence, although I have modified it somewhat, taking into account your personal circumstances and the full content of the report from Ms Carey. 

17Any sentence in relation to you also needs to take into account proper application of specific deterrence.  However, I think that the proper course is to impose a sentence with a slightly longer than usual non-parole period which will see you released after serving 18 months into the care of the parole board.  As I say, I have also taken into account the fact that you have been in custody actually for 350 days, although 289 days can count only for pre-sentence detention. 

18On the charge of armed robbery, you are convicted and sentenced to a term of imprisonment for two years.  On the charge of causing injury recklessly, you are convicted and sentenced to a term of imprisonment of one year.  On each of the charges of making a threat to kill, you are convicted and sentenced to a term of imprisonment of three months and on the fifth charge, theft, you are convicted and sentenced to a term of imprisonment of one year. 

19I direct that six months of the sentence on each of the Charges 2 and 5 cumulate on the sentence imposed on Charge 1 and on each other, making a total effective sentence of three years. 

20I direct you are to serve a minimum term of 18 months before being eligible for release on parole. 

21I declare that there has been 289 days pre-sentence detention under the sentences passed this day and that 289 days be reckoned as having been served and deducted administratively. 

22For the purposes of s.6AAA of the Sentencing Act I say that had it not been for your pleas, I would have ordered you to serve a term of imprisonment of five years with a minimum of three years and four months. 

23Are there any matters arising from that?

24COUNSEL:  No, Your Honour. 

25HIS HONOUR:  Mr Atkinson, what I have done is I have imposed a total sentence of three years.  You will be eligible for parole after 18 months and taking into account the time that you have already served, you have probably got about another eight months to serve before you will be eligible for release on parole.  Do you understand?  When you are released on parole, it will be the parole board that will supervise you.  Do you understand that? 

26All right.  Could you remove Mr Atkinson, please. 

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