Director of Public Prosecutions v Atkinson

[2014] VCC 1129

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01022

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH ATKINSON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 July 2014
CASE MAY BE CITED AS:	DPP v Atkinson
MEDIUM NEUTRAL CITATION:	[2014] VCC 1129

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer

For the Accused Mr M. Kats

HER HONOUR:

1Joseph Atkinson, you have pleaded guilty before me to one charge of aggravated burglary, one charge of causing injury recklessly and three charges of theft.  You have also admitted prior convictions.

2The facts underlined in your offending are as follows.  On 21 November 2013 you and your co-accused, Peter McCreigh, armed with wooden stakes, entered premises at 52 Crevelli Street Reservoir where four people were present, they being Lewis McKenzie and Courtney Tooth, who lived at the house, and the other two, Flynn Gregory and Spencer Bainbridge, were guests.

3On entry the two of you stole three iPhones belonging to McKenzie, Bainbridge and Tooth, as well as a wallet from Bainbridge.  There was an amount of yelling and screaming.  You produced a silver screwdriver and told Gregory to "Shut the fuck up," at one stage whilst McCreigh hit Gregory's forearm with a stake.

4A struggle took place between several of the occupants.  One of the victims, McKenzie, was pushed to the ground with his jumper pulled over his head and punched multiple times, it would seem by the two of you.  Ultimately the stake being held by Mr McCreigh was grabbed from his hands by Mr Gregory, who hit him and told him to get out, and the two of you ran from the house, running in opposite directions along the street.

5McKenzie was later examined by a doctor who noted puffiness around his eyes and symptoms of a concussion, and Gregory, on medical examination, was seen to have suffered contusions to his right forearms and scabby bruises and swollen muscles.  Ultimately you were selected from a photo board by Gregory as one of the persons who had entered the premises and you were arrested by police on 20 January where you conducted a 'no comment' record of interview.

6Your actions in entering the premises, both armed with an offensive weapon, that is the stake, and with the knowledge of the persons present, comprised the charge of aggravated burglary.  The injuries inflicted upon Gregory and McKenzie underlie the two charges of recklessly causing injury and the three charges of theft relate to the theft of the three telephones.

7I now turn to your personal circumstances.  You are 20 years of age and are currently undergoing a six month Youth Justice Centre sentence at Malmsbury.  You are the youngest of four children born to your parents.  At six weeks of age you were placed with your grandfather as your parents, who both had difficulties with drugs, were incapable of caring for you, however your parents did maintain contact with you.  Your father runs his own scrap metal business in between times when he is incapacitated by his addiction.

8Your parents in fact separated when you were about four and your mother has gone on to suffer a number of mental health difficulties for which she has, on occasion, been hospitalised.  She was diagnosed 12 months ago with a serious kidney condition requiring daily dialysis for five hours, and very recently suffered a heart attack and is being held in intensive care in hospital.

9Whilst you were at school it became evident from behavioural problems you were demonstrating that there were difficulties, and ultimately when you were about ten you were assessed as having a mild intellectual disability, and you have been the client of Intellectual Disability Services for some years.

10At the age of 12, after completing primary school, you decided you wanted to live with your mother, and this appears to have been a very unfortunate turning point in your life.  Your mother's position was such that she was unable to provide you with any structure and you began to run wild.  You made a fairly small effort at attending school in Year 7 but really dropped out before the end of that year and have never attended for education since, except for a short stint at an alternative educational facility, The Pavilion.  It appears your mother was incapable of imposing any boundaries upon you.

11You began using cannabis and within two years, by the age of 15, had graduated to the use of ice to which you became addicted in a major fashion.  Thereafter you were using at the rate of about three times a week.  It would appear that for many years your life was one where you used ice on a regular basis, and you demonstrated all the emotional and physical difficulties which inevitably accompany use of that drug, that is you had severe mood disorder, had difficulties with temper and would not abide by any rules.

12It seems that your father and your sisters, who I should add are many years older than you - one sister is a youth worker and the other sister owns her own hairdressing business - have always taken a semi-maternal role in your life, it would appear, but at this time you were running riot and nobody could influence you to change the lifestyle you were then living.  Inevitably offending began to occur.

13It started in your early teens, mostly with driving offences; unlicensed driving, drive whilst disqualified, failing to wear a seat belt and so forth, however also inevitably that offending became more serious as the years went by.  In 2008 you were dealt with for theft of a motor vehicle, shoplifting and entering a building with intent to steal.

14In 2013 you were dealt with on an array of charges including reckless conduct endangering serious injury, affray and failing to assist in an accident where a serious injury occurred.  This apparently arose from an incident where a number of persons attended your mother's home and a fight broke out at the front of her house.  In the course of that fight your dog was stabbed.

15The offender in terms of that particular incident took off and you and another person got into a car which was driven by the other person, initially it would appear to take the dog to the vet, but along the way running over the person who had stabbed your dog.  You then took the decision that rather than assist this person you would take your dog to the vet, and as a result of that particularly unfortunate incident those charges arose and you were placed on a Youth Attendance Order.

16You formed a relationship with another drug user by whom you have two very young sons, the youngest having been born only four weeks ago.  There has been involvement by the Department of Human Services since the birth of your eldest son.  You and your partner have had a very contentious, and often violent, relationship.  It appears that you have not ever set up house together and have worked to co-parent your children.  The mother of your sons was living with her grandmother but continued to engage in drug use, and I have been informed that your sons have now been moved to the care of her aunt.

17In January of this year you were dealt with for offences which included recklessly causing injury, assault and failing to appear, arising from a dispute with you assaulting your then girlfriend, and you received a six month period of detention in a Youth Justice Centre.  That period of time in youth justice appears to have been beneficial to you in that it has kept you off drugs.

18You were 17 when your eldest son was born and at that time you decided you wished to reform your way of life and attempted to be a proper father to your son.  You voluntarily attended the Youth Substance Abuse Service, and in the course of that tried to undergo detoxification but lasted only one day.  Thereafter you attended on the YSAS worker only on a sporadic basis and your ice and other drug use continued on unabated.

19However whilst in custody you have had a number of difficulties, and in fact faced further charges of assault arising from an incident at Malmsbury where you were refused permission to telephone your former girlfriend.  You threw a folder and a cup at a Malmsbury worker and as I have said been charged with assault.

20In the last few weeks however it seems that you have settled down and are engaging in activities there.  In construction you have completed an Occupational Health Certificate and you attend weekly on a psychologist.  You are also taking mood stabilising medication.  The plan is that when, ultimately, you are released, that you live with your grandfather, and it is your hope that you will be able to undertake pre-apprenticeship training before hopefully obtaining an apprenticeship.

21The offending in which you engaged, I was informed, arose from you and Mr McRae's belief that the house that you invaded, and indeed it was a home invasion, was occupied by drug dealers, and this was going to prove a cheap way for you to obtain drugs and/or money.  It would seem you were completely mistaken about the occupants of the house, no drugs were recovered, and so what you did amounted to a completely unprovoked attack upon people who were doing nothing other than living in their home.

22The courts must regard home invasions of the type that you and Mr McRae carried out very seriously.  The notion of drug raids is unfortunately a common one in the community, therefore any court dealing with people who offend as you did must take into account principles such as general deterrence, that is sending out a message to others in the community that if they behave in this way they will be treated severely by the court.

23The courts must also recognise the seriousness of what you have done by condemning it in the way that you are sentenced, and by handing out an appropriate punishment.  I am satisfied that the way you offended on this evening was so serious that you should be dealt with by way of some sort of custodial sentence, that is you should get a form of gaol.  The question was whether it should be adult or youth gaol.

24At the time you committed these offences you were still on a Youth Attendance Order and you were on two sets of bail.  None of those orders had the sort of effect on you they should have, you continued to offend regardless because you had continued using ice.

25I have had you assessed for suitability for a Youth Justice Centre detention.  The report I received was extremely helpful and remarkably full given the period of time that the assessor had.  It was noted that whilst he has been in Malmsbury you have presented as a management problem there, but it was also noted that you have settled down, and it is believed that the services that youth justice can offer you are going to be of more benefit than the much more limited services available in adult custody.

26You told Ms Ryan, who was assessing you, that you were scared about going to gaol and you were worried about the way other prisoners would behave towards you.  Indeed after you were arrested on the matters before this court you were in the cells, both at the local police station and then at the Melbourne Magistrates' cells for two days, which was your first experience of adult custody and which you found frightening and worrying.

27You need to understand, Mr Atkinson, if you keep offending in this way you are going to end up in gaol, firstly because you have been to court too many times, and second because you are getting too old to get youth justice.

28I have decided on the recommendation of Ms Ryan and her contention that your road to rehabilitation is more likely to be successful if you remain in youth justice than if you are placed in adult prison and to deal with you by way of a Youth Justice Centre term, but you get into any more trouble Mr Atkinson you are just going to be too old.

29If you get into trouble again and you are brought back before a court, not in relation to the assault charges over what happened at Malmsbury, but if you get out of custody from youth justice and you commit another offence and you come back before court you are going to go to gaol, I can tell you that as an absolute certainty.  So if you are scared of gaol that is a very good thing.  It is a realistic matter, it is far more difficult in adult gaol, and your chances of ever getting a youth justice place again are all used up now.  Is that very clear?

30OFFENDER:  Yes.

31HER HONOUR:  And you need to keep that in your mind when you are out in the community again.  If things do not go your way, if you get a bit down and you decide the only way I can solve my problems is by using ice you are going to offend again and you are going to go to gaol in what we call "the big house," all right?

32OFFENDER:  Yes.

33HER HONOUR:  That is absolutely what is going to happen if you do not get off drugs, and if you do not make up your mind that you cannot get into trouble anymore.  You are very anxious to establish a relationship with your sons and that is to your credit.

34During the plea I had a discussion with you about the fact that it is not likely that the Department of Human Services will hand your boys over for you to look after, that they will remain with Hayley's aunt for quite some time.  It is important in those years that you build up a relationship with them and get yourself a job and some money and learn how to be a grown up so that when they are a bit bigger it is likely that these young boys can be placed in your care, but unless you do the work that is not going to happen.

35Therefore in all the circumstances I am going to sentence you to a term in a Youth Justice Centre as I stated.  I am going to sentence you on an aggregate basis and I am going to sentence you to a term of 12 months in a Youth Justice Centre.

36In sentencing you I take into account your plea of guilty and I accept that you are remorseful for your actions.  I also accept that you are a young offender, that you have an intellectual disability, that you have good prospects of rehabilitation as long as you give the drugs away, and that you have a lot of very positive family support.

37You have got sisters in your family who have done well in their lives and have learnt how to look after themselves and have careers and children, there is no reason why you cannot do the same.  But it is not going to happen if you keep using, and it is especially not going to happen if you use ice.

38In his submission the prosecutor pointed out that I need to take into account parity, that is the sentence to which I imposed upon your co-accused Peter McRae.  When I sentenced Mr McRae he faced a number of other serious charges in addition to those faced by you and had more serious prior criminal offending on his record.  In the circumstances therefore it is my view that it is not appropriate that I sentence you to 14 months, as I did him, but that you should receive an aggregate term of 12 months.

39Pursuant to s.6AAA of the Sentencing Act I declare that had you not pleaded guilty I would have sentenced you to a term in a Youth Justice Centre of two years and ordered that you serve a minimum term of 16 months.  So Joseph - is it Joe or Joseph?

40OFFENDER:  Joseph.

41HER HONOUR:  Okay.  Joseph this is it.  You come in front of a court again it is gaol, it is Port Phillip gaol, all right?

42OFFENDER:  Yes.

43HER HONOUR:  You might get in the intellectual disability ward there but it is still going to be adult gaol.  You have been told that once you are 21 you cannot be found suitable for youth justice, it is all over Red Rover, if I could put it that way.  So you just think about that because that is a place that you do not want to go, all right?  And if you go there you are going to lose your boys forever, DHS will say they will not even let you see them.  So you just think about all those things.  All right, thank you very much.  I thank counsel for their assistance in this matter.

44MR PLUMMER:  Your Honour just a couple of matters quickly?

45HER HONOUR:  Yes.

46MR PLUMMER:  The application for the retention of the forensic sample?

47HER HONOUR:  Yes I'll sign that now.

48MR PLUMMER:  And there's pre-sentence detention of three days.

49HER HONOUR:  I declare that three days of this sentence - Mr Atkinson?  You can't be chatting whilst you are still here in court thank you.

50OFFENDER:  Sorry.

51HER HONOUR:  I declare that three days of this sentence have already been served by way of pre-sentence detention.  The other point I want to raise with you Mr Atkinson - sorry Mr Plummer - is this.  If you play up in the Youth Justice Centre, if you play up at Malmsbury, they can move you across to adult gaol.  Do you understand?

52OFFENDER:  Yes.

53HER HONOUR:  So you better keep your nose clean while you are there.  You want to stay out of adult gaol, you want to stay out of Port Phillip so you do what you are told, all right?  Okay have a seat.  Sorry Mr Plummer.

54MR PLUMMER: Your Honour just a query regarding the aggregate sentence, I just note that the co-accused, Your Honour imposed individual sentences on the co-accused but I just note s.9 of the Sentencing Act. I just want to confirm s.9(3)(a) says that if an aggregate sentence is to be imposed - I'll just read it.

55HER HONOUR:  Yes, sure.

56MR PLUMMER:  "If a court proposes to impose an aggregate sentence of imprisonment it must, before doing so, announce in open court in language likely to be readily understood by the offender the decision to impose an aggregate sentence, and the reasons for doing so, and the effect of the proposed aggregate sentence."  I just needed to confirm with Your Honour that the reasons for doing so have been stated clearly.

57HER HONOUR:  All right, certainly.  The reason why I am imposing - stand up please Mr Atkinson?  What I have done is I have given you an overall sentence, it is called an aggregate sentence, it just means I give you one sentence for all those charges, all right?  The reason I have done that is because they all arose out of the same incident, okay?

58So there is an aggregate burglary for going in, then there is the two injuries that you caused while you were in there, and then you stole three phones.  So it all arose out of the one incident of the one date in the one time, that is why it is an overall sentence, all right?  Have a seat thank you.  Thank you Mr Plummer.

59MR PLUMMER:  Thank you Your Honour.

60HER HONOUR:  I always get a bit messy when it comes to aggregate sentencing, thank you.  Now is there anything I have to give back?  Yes I've got a whole lot of reports here I should - what have I done with those?  Here we are.  I'll return those to you, thank you Mr Kats.

61MR KATS:  Thank you.

62HER HONOUR:  And those, thank you.  I thank counsel for their assistance in this matter.

63MR KATS:  As Your Honour pleases.

64HER HONOUR:  I thank you for your assistance Ms Ryan and I thank the family for their assistance.

65MR PLUMMER:  Thank you Your Honour.

66HER HONOUR:  Good luck Joseph.  I hope this is the last time, okay?

67OFFENDER:  Yep.

68HER HONOUR:  You need to straighten up and get on with it.  Thank you, we'll adjourn to 9.30 tomorrow morning.

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