Director of Public Prosecutions v Atkinson
[2014] VCC 1329
•12 August 2014
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-02047
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KYALL KINGSLEY ATKINSON |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 5 August 2014 | |
DATE OF SENTENCE: | 12 August 2014 | |
CASE MAY BE CITED AS: | DPP v Atkinson | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1329 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Two charges of threat to kill, one charge of criminal damage, one charge of unlawful imprisonment and one charge of assault – 21 year old offender – Significant criminal history – Subsequent to offending sentenced to terms of imprisonment – Totality – Total effective sentence 18 months. New non-parole in respect of this and existing sentence of 14 months.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Gibson | Office of Public Prosecutions |
| For the Defendant | Mr D Goddard | Victoria Aboriginal Legal Service |
HER HONOUR:
1 Kyall Kingsley Atkinson, you have pleaded guilty to two charges of making a threat to kill, each of which carries a maximum penalty of 10 years’ imprisonment; one charge of criminal damage, which carries a maximum penalty of 10 years’ imprisonment; one charge of unlawful imprisonment, which carries a maximum penalty of 10 years’ imprisonment; and one charge of assault, which carries a maximum penalty of 5 years’ imprisonment.
2 The circumstances of your offending are summarised in the prosecution opening (Exhibit “A”). The victim of your offending, all of which occurred on 16 June 2013, was your then 18 year old girlfriend, Jasmine Dowling, with whom you had been in a relationship for approximately two years. At the time of offending you were aged 21 years. The relationship between you and Ms Dowling had been a tumultuous one and, at the time of offending, there was an Intervention Order against you, taken out in favour of Ms Dowling. This prohibited you from committing acts of violence against her or damaging her property, albeit that it did not prevent you from residing at a Department of Housing property which was rented by Ms Dowling.
3 You were a heavy user of methylamphetamine, and, in the early hours of the day of the offence, you contacted Ms Dowling by telephone and stated that you were smoking “ice”. You accused her of sleeping with other people and told her that you would come around to sort things out. A series of text messages was exchanged between you and Ms Dowling, each accusing the other of infidelity. A number of these form part of Exhibit “6”. It is abundantly clear that Ms Dowling considered you to be unfaithful to her and did not want you to come to her residence. Nevertheless, you rang her and told her that you were on your way and had a gun, which you had purchased the previous day. You arrived and stuck your head through a hole in a window, stating that, if Ms Dowling did not open the door, you were going to kill her. This is the conduct constituting Charge 1, threat to kill.
4 You then entered Ms Dowling’s house through the hole in the window and Ms Dowling screamed at you to leave. You chased her into the kitchen and threw bottles, a chair, a microwave and a didgeridoo at her and spat in her face. You damaged two microwave ovens and threw canola oil over the kitchen walls, ceiling and floor and stated that you would set the house alight. This damage caused by you constitutes Charge 2, criminal damage.
5 For approximately an hour and a half you kept Ms Dowling a prisoner in her own home, during which she feared for her safety, as you laughed, spat at her and acted in a crazy fashion. She took hold of the didgeridoo and a kitchen knife to try to defend herself. She asked you, on numerous occasions, not to hurt or kill her. You followed her to the toilet and repeatedly kicked the door open. You also sprayed a can of air freshener towards her and tried to light it with a cigarette lighter, threatening to burn her. You then sprayed a can of deodorant spray towards her and lit it, creating a large flame, the heat of which she could feel on her face. This conduct forms part of Charge 3, false imprisonment.
6 During your rampage, you told Ms Dowling on a number of occasions “you’re not getting out of here alive. If I can’t have you, no one else can, and I’m going to kill you”. This is the conduct constituting Charge 4, threat to kill. Also, you struck her to the back of the left leg with a baseball bat. This is the conduct constituting Charge 5, assault.
7 Ms Dowling’s mother and police arrived outside the front of the premises. At one point, Ms Dowling held a sign up to the window stating “Please help me”. Ultimately, Ms Dowling ran from the premises, carrying the baseball bat for her protection. She was observed to be extremely upset and frightened. You finally left the house approximately three hours after you had arrived. You were arrested and were noted to be extremely drug-affected. When later interviewed, you answered “no comment” to police questions.
8 You are presently aged 22 years, having been born on 7 June 1992. You come before the Court with an extensive criminal history. Your first appearance was in Geelong Children’s Court on 19 December 2006 for a number of dishonesty, driving, damage to property and use of cannabis offences. This was but the first of many court appearances over the ensuing six years for similar offending. You have received dispositions in the Children’s Court of probation without conviction, a Youth Supervision Order without conviction (which you breached), but were, again, given a without conviction Youth Supervision Order. You were later given a without conviction Good Behaviour Bond and, subsequently, without conviction, on two occasions, you were given a Youth Attendance Order, each of which you breached. Your last appearance in the Children’s Court was on 4 February 2010 at Geelong for assault by kicking, and you were convicted and released on a Youth Attendance Order.
9 On 1 February 2012 you appeared in Geelong Magistrates’ Court for assault with a weapon and failing to pay a taxi fare, and were convicted and placed on a 12 month Community Corrections Order, with rehabilitative conditions relating to drug and alcohol and mental health assessment and treatment. Your final official prior conviction was on 28 March 2012, when you appeared in the Melbourne County Court for armed robbery. On that date His Honour Judge Parsons convicted you and placed you on a Community Corrections Order for 12 months. Rehabilitative conditions relating to your alcohol and drug dependency and mental health issues formed part of that order. You breached that order by further offending, and on 4 July 2014, in the County Court, the order was cancelled and you were sentenced to 14 months’ imprisonment with a non-parole period of five months. You are presently serving that sentence.
10 Meanwhile, on 20 March 2014 you appeared at Geelong Magistrates’ Court on charges where, yet again, Ms Dowling was your victim. These comprised contravening a Family Violence Intervention Order, intentionally damaging property, unlawful assault and committing an indictable offence whilst on bail. You were convicted and sentenced to an aggregate term of 21 days’ imprisonment. On that occasion, the Magistrate reckoned 21 days of the sentence as already served and noted that this term had largely been served in police cells, that you had been diagnosed as suffering paranoid psychosis, had suicidal ideation and had been prescribed Seroquel (Exhibit “10”).
11 In a plea on your behalf by Mr Goddard, the Court was told that you are of Aboriginal parentage. You never knew your father and suffered a disruptive childhood in the care of your mother and a number of her partners, with frequent changes of address and schools. At age eight, following a rejected attempt by you to form a relationship with your father, you attempted suicide in the schoolyard. At one point, you, your mother and sister moved to Queensland, however, you moved back to Geelong to stay with relatives, and appear to have “gone off the rails” from an early age.
12 A report from Mr Warren Simmons, psychologist, dated 24 November 2011 (Exhibit “1”), noted that you were taken into the care of the Department of Human Services and placed in a foster home at the age of 14 years. Nevertheless, you still have a close relationship with your sister and your mother, who came down from Queensland and were in court to support you for the plea hearing. Mr Simmons noted your background of disrupted schooling, suspensions for being involved in fights, some of which were apparently related to racist taunts, and a history of truancy and struggling academically. At age 12 you had been diagnosed with ADHD and prescribed Ritalin, but complied with this for only a short period. You have not attended any schooling since partway through Year 8 and, from an early age, began abusing alcohol and drugs. You have had a number of short periods of employment as a kitchen-hand and bricklayer and undertaking deliveries.
13 Mr Simmons noted that you appear to have had bad examples from family members who used illicit drugs. You were a daily smoker of cannabis by age 17 but, as you started to become paranoid, you ceased to use it and then began to abuse amphetamines, as well as alcohol. He noted that, at age 16, you had attended the Koori Youth Healing Centre for six months to try and undergo rehabilitation, and had also undertaken residential drug withdrawal programs with YSAS.
14 A report from YSAS, dated 24 January 2013 (Exhibit “3”), noted that you had been a client of YSAS since 2008. You had initiated contact with that service again in December 2012 and undergone residential withdrawal treatment from 7 to 22 January 2013, and further follow up treatment by way of admission was arranged from 12 to 25 March 2013. It is unclear whether you ever underwent this further admission. However, it is plain that you had a significant problem with abuse of methylamphetamine three months later at the time of the offending for which I must sentence you.
15 Mr Simmons considered your history of offending to be related to your substance abuse and noted that there had been a period of several years with no offending which coincided with a long term relationship and cessation of use of cannabis and amphetamines. He considered that there was certainly evidence of a paranoid disorder and, according to your self-report, symptoms of this had pre-dated your use of drugs. However, he considered that the extent and origin of such paranoid disorder was unclear and you had difficulties with trust, were very agitated and in need of drug and alcohol counselling and psychiatric investigation.
16 A report from Dr Anthony Cidoni, Psychiatrist, dated 3 January 2012, was also tendered on the plea (Exhibit “2”). He, too, took a history of mood disturbance and longstanding paranoia and noted that you had had no anti-psychotic treatment. He also recorded that, when incarcerated, your mental state deteriorates. He considered that you had an untreated paranoid psychosis and required anti-psychotic treatment, but thought that it might be best to detoxify first. He also considered you to suffer from polysubstance dependence and noted that amphetamines and cannabis are well known to make psychosis worse. However, he believed that you had an independent psychotic disorder, not one that was purely drug-induced. He thought that your condition would significantly deteriorate if you were imprisoned. Unhappily, it appears that Dr Cidoni was correct, in that when you were in custody last year, on 9 August 2013, you were placed in a Muirhead cell for observation as a result of an attempted suicide (Exhibit “9”).
17 Mr Atkinson, the behaviour for which I must sentence you is truly appalling. It is an aggravating feature of the offending that it breaches conditions of an intervention order that you not commit acts of violence against Ms Dowling or damage her property. It was brutal and cowardly and your victim was a young woman whom you purported to love. There had clearly been issues of volatility in your relationship. Indeed, your counsel, Mr Goddard, stated that some months prior to this offending, police had made application for an Intervention Order, on your behalf, against Ms Dowling. According to this application, dated 14 February 2013, following an argument between the two of you, she had asked you to leave and had picked up a steel chain and threatened to smash your possessions and had also picked up a kitchen knife (Exhibit “7”). Ms Dowling was only 18 years old and would appear to have issues of her own, however, she believed that she was in love with you and felt betrayed by you. According to your counsel, Ms Dowling has exhibited an ambivalent attitude towards you in that, as recently as February this year, when you were on bail, she made application to vary an Intervention Order in her favour so that the two of you could have contact (Exhibit “5”). It seems that this application was never followed through.
18 Unhappily, it appears that there have been at least two subsequent episodes of you offending against Ms Dowling. These included offences of intentionally causing injury, contravening an Intervention Order and assault with an instrument, which were part of a number of offences for which you were sentenced in the Geelong Magistrates’ Court on 31 October 2013 to four months’ imprisonment. Indeed, this offending conduct was the reason that you were breached on the Community Corrections Order which you had been given by his Honour Judge Parsons in the County Court on 28 March 2012. As previously mentioned, this resulted in resentencing on 4 July this year to a total effective sentence of 14 months’ imprisonment with a non-parole period of five months. You again offended against Ms Dowling on 28 February 2014. This was the offending which resulted in you being remanded in custody in respect of charges of intentionally damaging property, unlawful assault and committing an indictable offence whilst on bail. Also, as previously mentioned, you were dealt with for these offences at Geelong Magistrates’ Court on 20 March 2014 and given a sentence of 21 days which was reckoned as served. It seems that you were released from custody and then, again, on 29 March 2014, were charged with further offences allegedly committed against Ms Dowling. These charges, which include intentionally causing injury and unlawful assault, resulted in your bail on the matters for which I must sentence you being revoked on 31 March 2014. Your counsel stated that these charges are in the summary list at Geelong Magistrates’ Court, awaiting a contested mention.
19 Obviously, I must not take into account the matters which are unresolved. Nor must I punish you for other offences for which you have already been sentenced. However, the two subsequent episodes of offending against Ms Dowling for which you have been sentenced, seem to indicate that you have not learned anything about respecting females, particularly Ms Dowling. You now have a history of significant violence and seem to think it appropriate, particularly when hyped up on methylamphetamine, to regard Ms Dowling as your property. Domestic violence is a huge issue in our community. In sentencing you, this Court must denounce your conduct and place emphasis on general deterrence so that anyone like you who is minded to engage in such shameful, brutal behaviour towards a female, with whom they are supposed to be in a loving relationship, will be aware that they will be appropriately punished.
20 In sentencing you, emphasis should also be placed upon specific deterrence, in the light of your history of violent offending. As mentioned during the sentencing hearing, I consider the primary factor in your offending to be your abuse of methylamphetamine. However, I accept that both Mr Simmons and Dr Cidoni consider you suffer from some form of paranoid disorder, which predates your substance abuse issues. I considered whether an up to date psychiatric assessment should be obtained, but concluded that any underlying psychiatric state has probably been so clouded by your substance abuse that, now, it would be difficult to tease out any relevant aetiology. However, your counsel did say that you had been psychiatrically assessed whilst in custody and had not been placed on any medication, albeit that you are apparently attending some form of counselling. In the light of the material from Mr Simmons, Dr Cidoni and Exhibit “9”, relating to your attempted suicide on 9 August 2013, I accept your counsel’s submission that principles 5 and 6 in R v Verdins[1] have application in your case. That is, I accept that serving a term of imprisonment with psychological difficulties like yours means that it is likely to be more burdensome for you than for a person without such difficulties. Also, it may well be that imprisonment causes a deterioration in your psychological state.
[1](2007) 16 VR 269
21 Mr Atkinson, it is plain from the Victim Impact Statement of Ms Dowling made on 5 August 2014 that your offending has had an adverse psychological impact upon her. Moreover, she mentions that her chances of obtaining public housing have been set back by the damage that you have caused. It is difficult for me to find that you have any insight into the impact of your offending. Your victim was put through cross-examination at committal on 24 October 2013. It was effectively put on your behalf that the offending alleged by Ms Dowling had not occurred and was all made up as some sort of “payback”. Although I accept that, at that time, you were charged with aggravated burglary and a second charge of assault which did not appear on the plea indictment, you did ultimately plead guilty to the bulk of conduct alleged by Ms Dowling against you. Following the committal, you apparently indicated that you were prepared to plead guilty to making a threat to inflict serious injury, a summary offence of unlawful assault and contravention of the Intervention Order. It was only very shortly prior to this matter being listed for trial that you ultimately entered pleas of guilty to the charges for which I have to sentence you. Although you are entitled to credit for those pleas, as they have ultimately saved the cost of a trial and your victim has been spared being put through further cross-examination, I have grave difficulty in regarding them as remorseful pleas.
22 Since the commission of the offences for which I must sentence you, I take into account that you have spent a considerable amount of time in custody. You are entitled to have 143 days of that time reckoned as time already served under the sentences imposed this day. In addition, you served four months imprisonment imposed by the Geelong Magistrates’ Court on 31 October 2013, 21 days imprisonment, which was the subject of the “time served” sentence imposed by Geelong Magistrates’ Court on 20 March 2014, and a further four months referable to the sentence of imprisonment imposed by his Honour Judge Parsons in the County Court when he resentenced you on 4 July 2014 (at which time his Honour reckoned 53 days pre-sentence detention as time already served). I consider that it is appropriate to take into account as a matter of totality these other periods which you have spent in custody.
23 There is no doubt that the only appropriate sentence for your offending is a custodial sentence, of which there must be an immediate custodial component. I am conscious that, in sentencing someone of your young age, rehabilitation normally would be the predominant sentencing principle. However, I have considerable reservation about your prospects of rehabilitation in the light of your prior and subsequent convictions, albeit that it would be wrong of this Court to “write off” your prospects of rehabilitation at the age of only 22 years.
24 I take into account that you have had a disrupted upbringing and that, quite apart from your substance abuse, you suffer psychological problems of an ill-defined paranoid nature. It may be that a significant period where you do not abuse drugs is the only way that rehabilitation will ever be achieved. Your counsel stated that you have remained free of drugs since you were remanded by a Bail Justice on 29 March 2014 (in relation to the matters still awaiting hearing in the Magistrates’ Court), that is, since shortly prior to having your bail revoked on 31 March 2014 in relation to the matters which are the subject of this plea. If you can maintain a commitment to stay away from all drugs whilst in custody, then your ability to ultimately engage in rehabilitative treatment is likely to be enhanced.
25 I note that the report from YSAS (Exhibit “3”) mentioned that, back in December 2012, you had shown insight into needing to commit to a rehabilitation program and had shown a number of strengths and reasons for identifying the need for change. Further, whilst in custody, you have undertaken several courses. Tendered as Exhibit “8” were a number of certificates. One is a progress report from Kangan Institute where you commenced literacy studies in July 2013. Although the report is only dated two months later, it noted that you were applying yourself enthusiastically and showed a positive attitude to learning. Another certificate from Kangan Institute noted that you had completed a course in work safety in the construction industry. A further certificate noted that you had completed a YMCA work planning and life skills training program. Finally, there was a certificate from the Metropolitan Remand Centre that you had undertaken a three hour offending behaviour program run by the Department of Justice, aiming to increase your ability to problem solve and anticipate consequences. It is to your credit that you have utilised your time in custody to try and improve your insight and skills and to address your offending behaviour. However, I consider that, until such time as you commit to not abusing alcohol and drugs, your rehabilitation is unlikely to progress. It is extremely unfortunate, to say the least, that you have not, in the past, taken advantage of the many rehabilitative dispositions offered to you to try to address your substance abuse.
26 Although a custodial sentence is clearly warranted, you have not, in the past, had the opportunity to demonstrate that you can successfully complete a parole period. In my view, it is in the interests of your rehabilitation and ultimately, of the community that you do undergo a period of supervision by way of parole. This will be a reminder that, if you again engage in lawless behaviour, you will be sent straight back to prison. In this regard, it will be necessary for me to set a new non-parole period in the light of the fact that you are still serving the sentence imposed by his Honour Judge Parsons on 4 July 2014.
27 Would you stand up please?
28 On Charge 1, threat to kill, you are convicted and sentenced to be imprisoned for a period of six months.
29 On Charge 2, criminal damage, you are convicted and sentenced to be imprisoned for a period of six months.
30 On Charge 3, unlawful imprisonment, you are convicted and sentenced to be imprisoned for a period of 12 months.
31 On Charge 4, threat to kill, you are convicted and sentenced to be imprisoned for a period of nine months.
32 On Charge 5, assault, you are convicted and sentenced to be imprisoned for a period of seven months.
33 The sentence of 12 months imposed on Charge 3 is the base sentence. I direct that one month of the sentence imposed on Charge 1, one month of the sentence imposed on Charge 2, three months of the sentence imposed on Charge 4 and one month of the sentence imposed on Charge 5 be served cumulatively upon the sentence imposed on Charge 3 and upon each other.
34 Pursuant to s6F of the Sentencing Act I cause to be noted in the records of the Court that in respect of Charge 4, you have been sentenced as a serious violent offender within the meaning of s6B of the Sentencing Act 1991. Pursuant to s6D of the Sentencing Act, in determining the length of the sentence for Charge 4, I have regarded the protection of the community from you as the principal purpose for which that sentence is imposed. However, I agree with the prosecutor that, in order to achieve that purpose, it is not necessary to impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. I have had regard to the provisions of s6E, which directs that every term of imprisonment imposed by a court on a serious offender for a relevant offence, must, unless otherwise directed, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed either before or at the same time as that term of imprisonment. However, I consider that your young age and the principal of totality militate against total cumulation in relation to Charge 4. Hence, the period of three months cumulation which I have already announced.
35 The total effective sentence imposed this day is thus 18 months’ imprisonment.
36 I direct that four months of the sentence imposed this day be served concurrently with the sentence which you are currently serving. Pursuant to s14 of the Sentencing Act 1991, I fix a new non-parole period in respect of both sentences of 14 months.
37 I declare a period of 143 days pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
38 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed this day would have been 30 months with a non-parole period of 20 months.
39 Pursuant to s78(1) of the Confiscation Act 1997, I order that forfeiture to the state of the property referred to in the schedule. I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
40 Mr Atkinson, it will be a matter for the prison authorities and the Parole Board as to when and if you are granted parole. On my calculations you should become eligible for parole in approximately six and a half months time. I urge you to stay free of illicit drugs whilst in custody and to continue to undertake courses to assist with your rehabilitation and employment prospects. If you are released on parole at the first opportunity, you will have 14 months of strict supervision. I further urge you to not regard your parole officer as an enemy, but someone who will be trying to assist you to readjust to life back in the community and to adopt a law-abiding lifestyle. If you do not take advantage of this opportunity you will go on being a menace to the community and are likely to find yourself back in prison with longer and longer sentences and your life will be a wasted one. You are only 22 years old and you can still turn your life around to be a productive one, but it is up to you.
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