Director of Public Prosecutions v Atkinson

[2014] VCC 762

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00606

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT ATKINSON

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 May 2014
CASE MAY BE CITED AS:	DPP v Atkinson
MEDIUM NEUTRAL CITATION:	[2014] VCC 762

REASONS FOR SENTENCE
---

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

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. O'Halloran
For the Accused	Ms D. Lamovie

HER HONOUR: 

1Brett Atkinson, you have pleaded guilty before me to one charge of armed robbery and also a charge of theft.  The facts underlying your offending are as follows.  At about 9.45 pm on 1 November 2013, you and your co-offender Peter McRae flagged down a taxi in Preston, McRae getting into the front seat and you getting into the rear.  Mr McRae directed the taxi driver to an intersection in Preston, where McRae got out and went into a nearby house to change his pants while you stayed in the car, returning about five minutes later with a backpack.

2He then directed the taxi driver to a destination in Fitzroy and, after a U-turn was performed in the taxi, said he had forgotten something and the two of you got out and went back to the same house Mr McRae had previously gone to.  About two minutes later, the two of you returned to the taxi, again McRae in the front and you in the back.  The taxi driver drove to Fitzroy and through a number of streets before arriving at Lonsdale Street in the CBD.  During the journey, alcohol in the backpack was passed between the two of you.

3McRae told the taxi driver to stop on Lonsdale Street, at which stage he asked for the fare.  McRae got a knife, a black-handled chef's-style knife with a blade of about 30 centimetres, which he held below the dashboard, saying to the victim, "Do you still need the money," the taxi driver saying, "No."  Mr McRae then told the taxi driver to give him money and eventually the victim handed over $500 from his top shirt pocket.  The two of you got out of the taxi, swapped jackets and walked away.

4The offending was captured on CCTV operating within the taxi.  Ultimately you were arrested by police on 30 December 2013, in a record of interview stating that you did not recall the offending, although you agreed that the CCTV stills showed a back-seat passenger who looked like you and that you had been smoking heroin at that time and could have been affected by drugs. 

5The theft relates to an incident in December 2011 when you were approached by a teenager who gave you money and asked you to buy him cigarettes.  You walked with him to a cafe, but asked to borrow the victim's mobile phone and make a call, which was handed over.  But you eventually refused to give it back, stating "it's mine now".  The victim rang for police, but when they attended the location you had disappeared.  This matter for some reason has not been dealt with, although there has been other offending subsequently by you which has been dealt with.

6I now turn to your personal circumstances.  You are 20 years of age and were aged 20 at the time of this offending.  You were born in Swan Hill but grew up in Healesville and Echuca, being raised by your grandmother who looked after you ever since you were a baby and who you call mum.  You have got two younger sisters and a younger stepbrother.  You told psychologist Warren Simmons, whose report dated 3 April 2014 was tendered on the plea, that you had a happy childhood growing up with your grandmother and her partner, Ron Wise, who you call dad.

7Unfortunately Mr Wise and your grandmother separated when you were about ten or 11 because of his drinking and violence.  Ultimately he was refused entry back into the home because of that and because your grandmother was worried about his effect upon you children, particularly your sisters.  He thereafter committed suicide.  It was then, Mr Atkinson, that you got into trouble. 

8The death of this man whom you called dad continues to affect you to this day but led you to behave in a way that you had not previously.  You started getting into trouble.  You started drinking alcohol.  You started using drugs.  You were expelled from Healesville High School.  You were smoking cannabis.  You truanted from school, you swore at teachers, you were fighting with other kids.  You then went to a school in Healesville for Koori students who had behaviour problems, but that was as far as your education went.

9You told Mr Simmons you have never worked, telling Mr Simmons also that you saw no likelihood that you would get work because of your criminal history.  The other issues which, it seems to me, were important in terms of your offending history were that you were introduced to sniffing glue when you were 16; you started using methamphetamines or Ice just before you turned 18, at which stage you were injecting the drug about twice a week; you began drinking alcohol when you were 14, saying that you would drink until you were "wrecked".  You were also taking Xanax.  Essentially your life as a result of what is called poly-drug use - that is use of lots of drugs - that is alcohol, speed, heroin, amphetamines, methylamphetamines or ice - have led you to offend. 

10You have got a criminal history which is starting to get serious.  You were first dealt with by the courts in 2009 in the Children's Court for charges such as burglary and theft and shop steal.  You were placed on probation.  You then went on to be dealt with in the Magistrates' Court adult courts for unlawful assault.  You have been dealt with in 2012 for recklessly causing injury.  You were put on a youth supervision order in 2012 for shoplift, armed robbery, failing to answer bail and again in October 2012 for robbery, attempted robbery, theft and recklessly causing injury.

11During the plea, your counsel outlined to me the circumstances surrounding that sort of offending, which always appears to have occurred in the CBD, in the Southbank area, when you have been using some sort of substances and when you have been in the company of other people.  On one occasion it involved a group of you mugging Asian students; on another occasion, it was picking on a person walking along the street.  You have never stolen very much in the armed robberies, but you have inflicted violence on people, you have taken their belongings from them and left them very shaken up.  The problem is, Mr Atkinson, you have done it over and over.

12This offending occurred not long after you were released from gaol in 2013.  You had been gaoled for, as I have said, armed robbery, theft from shop and breaching a community corrections order.  That was on 29 April 2013.  You were apparently released on your birthday.  Your mum had moved up to Echuca to live some years before and the plan was that you were to go up there; however, you decided you were going to hang around the city for a bit.  You almost immediately started using drugs again.  Ultimately, your counsel told me, you can hardly remember anything about this offending because you were smoking heroin at the time.

13You have been in gaol since December of last year and that has done you some good.  When you turned up at court today everybody agreed you were looking terrific.  You had on a shirt and tie, your face was clear.  Your mum/nan - if I can call her your nan so everyone knows - said that she had not seen you looking that good in a long while.  You have undertaken courses in gaol.  You have had some trouble in gaol because you get angry.  You have also been looked after by some older members of the Aboriginal community.  Also in the Koori Court session today you got fairly emotional and said you just want to get out because you are really missing your nan.

14You have been to a course in the Northern Territory which was only two weeks but you said was good, but in that time your nan told us that you rang her saying that you missed home and wanted to come back.  You are very, very attached to your nan.  You said to me when we first started the round‑table conference that the worst thing about being in gaol was that you were away from her and that you wanted to look after her as well.  The reason why you are not there is because you decided not to go back to Echuca the last time you got out of gaol.  Isn't that right?

15I said to you when we were in the round-table conference what is worrying me with you, Mr Atkinson, is that this is now the fourth time you have come before a court on charges of some sort of robbery with violence.  The courts regard robbery with violence, whether it is your fists or whether it is with a weapon, really seriously.  Armed robbery is so serious that it actually cannot be dealt with by the Magistrates' Court, it has to be heard before the County Court.  You are too old to go to the Children's Court any more and you are nearly too old to get Youth Training Centre.  So every time you come back before a court now on this sort of offending, you can expect to get long gaol sentences.  All the chances are gone now except for today.

16You have pleaded guilty at an early stage.  You have got good structure to go to and you are youthful and you are remorseful and you presented very well.  I am prepared to give you one last chance.  The offending was, it seems to me, fairly crude offending.  You played a minor role.  It is to your credit that you pleaded guilty when you cannot even remember what happened.  You are charged on the basis that you knew that Peter McRae had a knife, not that you were wielding one.  At the same time there is nothing on CCTV footage about you leaning over the back seat and saying "put that knife away, Peter, and give that man back his money", but still it is to your credit that you pleaded guilty.

17I do accept that you have got a good future if you want one, that you understand things have come to a point where, if you do not change your ways, if you do not attend to your drug problem and your alcohol problem in particular, you are going to get many years of gaol.  I know it is a bit boring; courts say it a lot, but you are at the crossroads.  You are either going to go that way or that way, Mr Atkinson.  That way, one way, is going to lead you straight back to gaol; the other way is going to leave you in a position where you can start doing a few really good things like the TAFE course in carpentry you were going to do the last time you got out of gaol.  You never even got there, because you decided to hang around in Melbourne.

18I was impressed that your cousin and your uncle were here, that they are people who support your mum, who support you and who understand, as you seem to understand now, that coming down to the city is no good for you at all.  The plan is that you are going to go back to Echuca and you are going to go and live with your mum.  The problem is there are drugs in Echuca, just as there are anywhere else.  The problem in Echuca is ice.  Ice is a dreadful drug, because people get so incredibly addicted to it and they get violent when they use it.  The only person who is probably going to be on the end of that violence, if you get onto ice, is your nan, so there is a good chance that you will hurt her if you use that drug.

19So on top of everything else, if you keep using drugs you are going to offending; and because you have offended before, you are going to get a gaol sentence.  But on a personal level, you could hurt the person you love most in your life and who has looked after you and given you really a very good childhood. 

20It seems that the issues surrounding Mr Wise's death are still with you, that you are still grieving and still not coping with that very well.  So in the order, I am going to make a condition that you have to have counselling.  I also want you to have counselling for drug and alcohol issues.  I am going to order that the community corrections order be on foot for two years and nine months.  So if you get into trouble in the next two years and nine months, Mr Atkinson, you will come back in front of me.  I will sentence you for this all over again and you will get a big sentence from me.  You understand that?

21So two years and nine months and I have to tell you what the conditions of the order are, because I can only give you the order if you agree to be on it.  The first condition is that within 48 hours of being placed on the order you must report to the Community Correction Centre, which will be up in Echuca.  That means you are reported in by Wednesday or Thursday of this week; I am not sure how quickly you will be able to be released from gaol.  Number (2) is that if there is any change of address or occupation, you have to tell the Office of Corrections about it within 48 hours.  Whilst you are on the order, you must not commit any offence for which you could punished with imprisonment. 

22If you knock off a box of matches, that will be enough either inside or outside Victoria.  You cannot leave Victoria without the permission of the Community Corrections Office and you have to report to and receive visits from the Community Corrections Office as they tell you.  You must obey all lawful directions of the Community Corrections Office.

23I am going to order that you perform 250 hours of unpaid community work over the next two years and nine months.  I am going to order that, as a special condition, you also, as I said, attend for assessment and treatment for drug and alcohol abuse and for psychological counselling.  I have also recommended that you be looked at for educational programs.  The order found that even though the person who was assessing you said "he has mucked up a community corrections order before", what they said was this.  They said that you were found suitable because "he is a young offender and appears to have good insight into his offending and its causes".

24So the plan is that you are on this order for the next two years and nine months.  You do not drink, you do not use drugs and you live in Echuca with your nan and you do your carpentry course.  You do your unpaid community work and you do your drug and alcohol counselling and you behave yourself.  All this goes away and you lead a good life.  That is the plan.  What could go wrong is you deciding "I'm bored this weekend; I'm going down to Melbourne", find a few mates in the CBD, head off down to Southbank, start drinking, start using; and, sure as eggs are eggs, you are going to offend again.  That is where the plan will go wrong, or if you team up with some beaut, new mates in Echuca and decide you are going to use ice.  All those things are up there. 

25It is all about you making the right choices, but the plan is that you stop using drugs, stop drinking, train to be a carpenter, live with mum and behave yourself and have a good life.  That is the plan.  I am also going to order that there be supervision and I am going to order judicial monitoring.  Judicial monitoring means that you have to come back in front of me - I am going to order every nine months so that I am keeping an eye on how you are going.  So it is not the last time we have seen each other, Mr Atkinson.  If I find that you have not been sticking to the orders, I will take your hide off.  Do you understand me?  You are to do as you are told over this.

26Everyone is worried about you.  Everybody is scared that you are going to go down the wrong path.  At the same time, everybody believes you have got an enormous amount of good and potential in you.  People love you very much.  People really want you to succeed.  As long as you have the sense to make the right choices, I have got no doubt you will succeed and become the sort of leader within the Aboriginal community that the elders spoke to you about today.  All right? 

27Thank you.  Now, do you agree to be placed on this order?  Yes, thank you very much.  We will just prepare it.  I am also going to order that there be a retention of the DNA sample.  You have got no problems with that?   

28Were there any other orders that you needed from me, Mr O'Halloran?

29MR O'HALLORAN:  No, thank you, Your Honour.

30HER HONOUR:  That was just a retention sample.  All right.  We'll just get that sorted for you. 

31MS LAMOVIE:  Your Honour, there is just one small thing.  According to Echuca Corrections, I'm just concerned whether there's a constant presence in Echuca that if he were to report by Wednesday there'd be somewhere to report to.  That's the only thing that comes to mind.

32HER HONOUR:  Well, all right. 

33MS LAMOVIE:  I mean he's willing - I understand that arrangements can be made.

34HER HONOUR:  No, it says here Shepparton.

35MS LAMOVIE:  Well, that would be fine.  I just thought Your Honour said Echuca. 

36HER HONOUR:  No.

37MS LAMOVIE:  Thank you.

38HER HONOUR:  Well, I meant it - - -

39MS LAMOVIE:  I just wanted to check.

40HER HONOUR:  It's the Shepparton Community Corrections Services.  I just put in "at any educational quarters as directed".  It's all right.  I'm going to fix this.  Don't worry about it.  It's all right.  We use this one.  Give us a look.  All right, they're good.  We'll just get you to sign this now, Brett, all right?  Is the other one for the theft just being printed out now?

41ASSOCIATE:  Yes.

42HER HONOUR:  All right, that's fine.  Before I leave the Bench, I want you to stand up and tell me what the story is with you now.  What will happen?

43OFFENDER:  Just go home and listen to mum, I guess.

44HER HONOUR:  Yes?

45OFFENDER:  Try and find a course, do all my drug and alcohol - community work.

46HER HONOUR:  What do you reckon might happen if you - - -

47OFFENDER:  Sign in, yeah.

48HER HONOUR:  What do you reckon might happen if you go down to the city?

49OFFENDER:  Get locked back up again.  Facing you, I guess, yeah.

50HER HONOUR:  Yes, and you've got two - the order lasts for how long?

51OFFENDER:  Two years and nine months.

52HER HONOUR:  Yes, good on you.  And what happens in that two years and nine months if you commit even the tiniest shoplift?

53OFFENDER:  Locked straight back up.

54HER HONOUR:  Yes.  All right.  So got that in your head somewhere.

55OFFENDER:  Yeah.

56HER HONOUR:  Speed, alcohol, heroin, ice equals gaol.  All right?  You got it?

57OFFENDER:  Yep.

58HER HONOUR:  Family, of course - got that, have you?  All right.  Did everything I say make sense in the sentence?  Good.  Thank you so much for coming down.  Thank you for your enormous help today.  This makes my sentencing so much easier when I can hear from the family and really get a look at who I'm sentencing.  It's why I enjoy - I wish all the pleas I did were like the Koori Court models.  I reckon we do a much better job.  We get much more chance to see who we're actually dealing with.  Thank you for coming and being so much a part of it.  It really helped me. 

59I hope I never see you again except at judicial monitoring.  I expect when I see you on judicial monitoring you look terrific with your tie on and no trouble.  Good.  All right.  We'll stand down.

- - -