Director of Public Prosecutions v Atkinson
[2012] VCC 453
•17 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TERRY ATKINSON |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 April 2012 | |
CASE MAY BE CITED AS: | DPP v Atkinson | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 453 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Doyle | |
| For the Accused | Mr Nibbs |
HER HONOUR:
1 Terry Atkinson, a jury found you guilty of one charge of trafficking in a drug of dependence, that is amphetamine, and two charges of trafficking in a drug of dependence, namely MDMA. The facts underlying this offending are as follows.
2 Essentially, I will be repeating an amount of what I stated in relation to Mr Knight. In 2009 police conducted an investigation known as Operation Pinger, the primary target of it being your co‑accused Robert Knight, who was suspected of trafficking drugs from the Ultimate Fighting and Fitness Centre Gymnasium located at Miller Street, Epping. During the investigation Knight was identified as a large-scale supplier of both methylamphetamine and MDMA (ecstasy tablets) who used other people to traffic drugs on his behalf.
3 A police undercover operative using the assumed name Mick Farnsworth made six purchases of methylamphetamine and ecstasy tablets between 19 May and 30 June 2009 from Knight, a co‑accused Darren Perry, and yourself. On 19 May, Mr Mick Farnsworth attended a personal fitness training session with Knight, at the end of which he asked Knight if he could supply amphetamine who told him he had “a couple of boys” at his gym who trafficked amphetamine, ringing him later that afternoon.
4 Eventually, Mr Farnsworth was introduced to Darren Perry who he was told was the man who could “help you out”, and he bought some amphetamine from him at that time and then later that day. He also purchased methyl-amphetamine from Perry on 23 May 2009, but Perry then moved back to Swan Hill shortly after 29 May 2009.
5 On 18 June 2009, at about 10.45 am, Farnsworth attended the gym where he met Knight; who introduced you to him as the man who could now help him. Farnsworth told you and Knight he wanted to purchase three or four bags at a time, which in parlance meant 3 to 4 ounces of methylamphetamine at a time, Knight stating it would not be a problem, as “they had plenty”. You, Knight and Farnsworth then went into Knight’s office inside the gym, where Knight produced a freezer-bag containing a quantity of tablets which he told Farnsworth were ecstasy tablets.
6 He then produced a plastic Gladbag containing a pink-coloured powder substance which you said was methylamphetamine. Farnsworth purchased 4 ounces of methylamphetamine, which was weighed-out by Knight whilst you were present, Mr Atkinson, for $12,000 cash which he gave to Knight. Farnsworth also purchased 100 ecstasy tablets which were counted out by Knight. You were present throughout the transactions in Knight’s office, they comprising Charges 1 and 2 on the indictment, you being charged and found guilty on an aiding and abetting basis.
7 Subsequent analysis revealed that Farnsworth had purchased 112.3 grams of methylamphetamine and 100 tablets of MDMA comprising a weight of 26.5 grams.
8 At the end of the transactions, you gave Farnsworth your mobile telephone number and told him that when calling you should say you wanted to catch for feed whenever he wanted purchase amphetamine or ecstasy in the future.
9 On 30 June 2009 Mick attended the gym and met with Knight, arranging to buy 1000 ecstasy tablets for $12,000. He returned to the gym later in the day, after first picking up Knight, who had telephoned him to say he had run out of petrol, you waiting for them when they arrived at the gym. The three of you went inside, you stating that your “bloke was ten short”. This is alleged to refer to the quantity of the ecstasy tablets. You went to a rubbish bin next to the reception desk and retrieved a plastic bag from it, and you and Mick walked into Knight’s office whilst Knight remained in the foyer area of the gym. In the office you handed Farnsworth a plastic freezer-bag containing a quantity of tabs purporting to be 990 ecstasy tablets. Farnsworth gave you $11,880 in cash, at which time Knight entered the office, and you asked him whether he wanted the money counted, Knight responding that it was not necessary. The three of you returned to the foyer area where you had a conversation regarding the further supply of ecstasy and amphetamine, you telling Farnsworth the next time he wanted to buy ecstasy tablets he should ask to “catch up for a feed” when talking on the telephone to you.
10 Subsequent analysis of the tablets showed there were 1015 MDMA tablets and seven tablet portions of MDMA with a total weight of 297.7 grams. This transaction comprises Charge 3 on the indictment.
11 Essentially your defence was that on the first occasion comprising the first two charges you were simply present when the transaction took place between Farnsworth and Knight. In relation to Charge 3 it was submitted to the jury that although you had been brought into the transaction there was no evidence that you knew what you were handing over was MDMA or that there was any intention by you to traffic, as the money handed over by Mick ultimately went to Knight. These defences were obviously rejected by the jury.
12 I now turn to your personal circumstances. You are 55 years old, and have been married for 31 years. Your counsel informed me that you are a leader in the Aboriginal community in the Ballarat area, but so deeply ashamed of your involvement in this offending and subsequent conviction that you resisted all attempts by your legal representatives to obtain references from those organisations in which you have involved yourself. Ultimately, today, your counsel handed over three deeply impressive references which I intend to refer to, you apparently, having been persuaded to approach other persons about what has occurred and provide some further information to the court about your background.
13 Your wife and children were present to support you throughout the trial as indeed they are on this day of sentence and I have no doubt this is extraordinarily difficult for them. They are very impressive people, your family. You have a 19‑year-old son who undertaking an induction course in the Department of Justice in Corrections. You have a 20‑year-old daughter who is undertaking tertiary education, and a 23‑year-old son who is undertaking a pre‑apprenticeship course with a view to obtaining an apprenticeship in mechanics. None of your children or your wife have been in any trouble and they are a great credit to you.
14 You have a prior criminal record mainly involving street offences and drunkenness and some driving offences in the 1990s, at which time you were experiencing difficulties with alcohol. Your counsel informed me that you made a conscious decision to cease drinking, and have been abstinent for 13–15 years. I accept that nothing in your prior criminal history has any relevance to the sentencing exercise before this court.
15 I am going to turn to the references now because there is material in them that was not available at the time of the plea. The first reference I received is from your brother, Mervin Atkinson, who is a former member of the Victoria Police force, where he served for almost twenty-five years and is currently a justice of the peace serving in the Ballarat community. His current role is the executive officer of the Grampians Region Advisory Committee within the Justice Department based at Ballarat. He is your younger brother. He described how you were both born at Swan Hill and lived on an Aboriginal reserve before being taken by police and held in cells over a weekend prior to being made wards of State when you aged around four to five years. You were taken to an orphanage in Mildura before being transferred to the Ballarat orphanage in 1964. He said you attended school in the Ballarat orphanage and later attended secondary school. He said that you attended the Ballarat East High School and were later fostered by a family in Geelong, where you completed school. He said “we lost contact but later rekindled the family bond.” What he states is this: "In the early 1980s, Terry qualified as a signwriter, a very good one at that. He proceeded to be a good worker and as a result had the respect of the business community in Ballarat for who he did work for. He became restless and moved away to Swan Hill to be closer to more family. After about 12 years he moved back to Ballarat to raise his family in a better environment. He said I noticed that Terry had changed somewhat to less than enthusiastic worker and appeared to be tormented. I felt this torment was from his time in the Ballarat orphanage and the death of his favourite uncle who he admired so much to this day. This is the uncle who taught Terry a lot about his culture." He said, "Terry has been the go-to person for many people who had problems within life. These people are from the Koori community and family, a burden that I believe has been too much for him." He talked about the great sense of pride you have in providing for yourself and your family which he described as a family that has never been away on a holiday together. He said, "in recent times, Terry has been involved in a Justice related program for a number of years, the Murray River marathon program, assisting with the day to day running and maintenance of six large kayaks." He wrote of how you would also speak to youth that participated in a one on one basis about their culture and the importance of staying out of the criminal justice system. "His part in the program has been missed since the charges were laid for which he appears before you." He said, "this program is all about Aboriginal youth at risk of entering the criminal justice system. The youth are teamed up with police officers from their community and talk and learn about each other by participating in a most gruelling paddle race in the world. Many great outcomes are derived from this program and helps both Kooris and police to bridge the gap." He said, "Terry voluntarily stepped down from the program to allow us to keep the program's integrity intact, saving us a stressful situation."
16 Your brother said, "I must say I was very disappointed with Terry on learning of his arrest, something I thought would not happen. He has shamed himself, his immediate family, his extended family and the Ballarat community in general. This shame will never go away from us all but he is family and we've all supported him through this process as best we can." He said that your time in custody and remand broke your spirit to the point of self-harm thoughts and he believes that you need to undertake many counselling sessions with professional help to help you move forward in life. He believes you are extremely remorseful. He said you are "well aware that he has disgraced himself, family and friends." He stated, "Terry and the rest of the family are all from the Stolen Generations. Some have moved on and others struggle daily with this occurrence in our lives."
17 I also received a reference from Wayne Bell, the state chairperson of the Aboriginal Community Justice Panels, chairperson of the Palawarra Aboriginal Community Justice Panel in Heywood and a client service officer for the Victorian Aboriginal Legal Service, and he basically just said, "I now make my statement on how disappointed I am with Terry's involvement within this court matter. I cannot understand, for the life of me, why he would be caught up with this, how much of his good work, whether paid or voluntary, would suffer, his own family, friends, respected partnership that he has forged over many years, how they will suffer, all of his knowledge that he has passed on will now be questioned from the very person he has entertained in the past." He talked about how you let people down. He said, "he knows he has done the wrong thing in the eyes of his family and friends." He said you “have been very down on yourself in the meantime." He said, "my work within the justice system, I do see the effects of what drugs do to the Aboriginal community and I'm sure that Terry seen the damage also in his time. The Terry that I know did not need money to be rich and wealth. He has never had money. He had the riches within his culture. He breathed, dreamed and lived the oldest culture in the world. I do not know how deep Terry was involved in this activity but I know that something much stronger turned him into a person that I know him not to be."
18 Finally, I received a reference from a Ted Lovett, a community elder, who wrote how you grew up in an orphanage, that you worked for alcohol and drug dependent services, health department and other aboriginal rehabilitation services for many years. He talked about you undertaking your signwriting apprenticeship in Ballarat and that you were involved with the Ballarat and District Aboriginal Cooperative as a board member and worked voluntarily with the local Aboriginal community in the areas of justice and education. He said when you moved to Swan Hill, you worked for the Office of Adult and Further Education, again being involved in the Aboriginal community, doing voluntary work in the areas of drug and alcohol and justice. He said when you returned to Ballarat, you worked as a Family Violence worker, then formed an indigenous men's behavioural change problem program, engaging men in drug and alcohol programs, family violence program, employment, education, stolen generation programs, and representing them at all levels of the courts and assisting them when they came out of prison.
19 He said, "Terry worked with clients who had extensive criminal histories as did some of his immediate family whom he had reconnected with after leaving the orphanage. He learned not to judge these people and not to get involved in their criminal activities but try to help them change their lives."
20 He said, finally, "Terry finds it very difficult to talk about himself but I would like to stress that he has helped a lot of people over many years."
21 You were an active footballer. You played on a professional basis for the Maribyrnong Park Football Club. You have also been active in an organisation called Payback Records, which is an indigenous hip-hop label formed by the Essendon footballer, Nathan Lovett Murray, in order to provide indigenous youth with their own record label.
22 You promote Payback records within the Aboriginal community assisting in organisations when bands perform. Your counsel said you had been humiliated in the face of your own community by the charges of which you have been found guilty and I must say, in these references, it is very clear that you have incurred a great deal of criticism by those organisations and yet it is also clear that throughout your life, you have worked to help other people within your situation and within your community and I find that extremely impressive.
23 You have known Robert Knight, your co-accused, and the main target of the police investigation, on a life-time friendship basis, he belonging to the same tribe and area as you. Knight was building the gym as part of his business and the facilities were to be made so young indigenous men could be brought down to train there, giving them structure and discipline. Counsel informed that you had been involved in assisting in the gym because of the benefits to indigenous youth and that you did not appreciate the limited role you played in the transactions between Knight and the undercover operative Farnsworth meant that you were trafficking in drugs. It is conceded of course, that all the drugs were supplied by Knight and all the profits and money went to him.
24 Your counsel said that Charge 3 related to the last occasion on which the undercover operative Farnsworth had any dealings with you. He tried to organise further deals but you had decided you no longer wanted to be around drugs. Your counsel then pointed to a conversation picked up on the intercepts relating to a second occasion that Farnsworth had dealings with you whereby you were talking to him about the importance of getting off drugs, Farnsworth, obviously having presented himself as a drug user, that is, ironically, you were counselling him about getting off drugs at the same time as assisting in passing them on.
25 Your counsel described you as a man who has pride in yourself and who you are. He said you were always punctual, always well mannered, well groomed, and that throughout the trial, you had difficulty sleeping and found the whole experience deeply troubling and now stood humiliated in front of the family, in whom, understandably, you have great pride.
26 Since you were arrested on these matters, you have been involved in no further offending. He said you now suffer from anxiety and depressive issues and your counsel submitted your offending in this way was an aberration and I accept that.
27 The Prosecution has submitted that your actions comprise serious involvement in serious trafficking although it conceded they could not prove that you got anything out of it. There does not seem to be any argument that your involvement was confined to assisting Knight.
28 Particular reference was made to a conversation obtained by listening device at the farm rented by Knight in Epping Road, Wollert on 12 June 2009, where you were involved in a discussion with one Trent Challon about cooking amphetamine, although my reading of that transcript is that essentially – Challon is telling you about how he cooks amphetamine and you are simply responding.
29 Later in that same conversation, you talk about drugs of pseudoephedrine being held at a chemical factory in Ballarat which has no security, Challon suggesting a possible burglary to obtain it. It was your counsel's submission it was simply a discussion, there never having been an attempt to obtain this material and he suggested it could be categorised as "simply men's talk".
30 Certainly, I am satisfied the discussion does demonstrate a degree of knowledge by you about the manufacturing and trafficking of amphetamine. What I do not agree with is the prosecution's submission that this conversation somehow makes the offending of which you have been convicted more serious. The conversation does not reflect well upon you but simply goes to underline your knowledge of the large scale trafficking amphetamine activity in which Knight was involved and which itself involved a number of other men whom you knew and whom were used by Knight in this way.
31 I accept there is a certain dichotomy in your presentation, in that you have held yourself out as a proud family man who has been married for many years, has raised productive, successful and law-abiding children, that you take pride in this, and that you have actively involved yourself in welfare activities within the Aboriginal community in the Ballarat and Swan Hill areas.
32 On the other hand, you have also involved yourself in drug trafficking.
33 I accept that you had a lifelong association with Robert Knight, a member of your tribe, and that as an indigenous man you in those circumstances have a particularly strong bond with him, and that may to some extent explain your participation in a type of offending, totally uncharacteristic of your history.
34 I accept that your involvement in the gym did relate to the welfare work you have carried out with young Aboriginal men over a number of years, and that your involvement in Knight’s trafficking activities appears to have arisen from your association with the gym and with Knight itself. Certainly the offending before me does not involve any hint of personal gain by you, and indicates that what involvement there was, as far as you were concerned, was confined to an assisting role. I am satisfied that you have already been chastened by the fact of having been charged and then found guilty of this offending. I accept in this regard that you have very good prospects of rehabilitation, you having remained out of trouble since your offence, you enjoy the support of a close-knit family and I accept that you are deeply remorseful and shamed.
35 Your offending, peripheral though it may have been in terms of sourcing the drugs and gaining profit from their sale – that is, I am satisfied, was confined essentially to Knight, was nevertheless serious. You were prepared to be introduced to the undercover operative as the contact for Knight in terms of future drug transactions that might be conducted. I am satisfied you gave your telephone number to Farnsworth for that purpose. You made suggestions about a means of reference to drugs when talking on the telephone, which sought to conceal the purpose of such a call, and I am perfectly satisfied that you were aware of the transactions that took place between Knight and Farnsworth where you were present, that you indeed aided and abetted Knight in those transactions comprising Charges 1 and 2, and you took a more active role in relation to Charge 3.
36 You have been convicted of three serious offence charges, and, notwithstanding the mitigatory factors advanced on your behalf – and I regard them as significant – the only way in which I can deal with you is by way of the imposition of a sentence of imprisonment to be immediately served.
37 In sentencing you I take into account what I accept is out-of-character offending by you, your admirable efforts within the Aboriginal community, what I accept was a lack of appreciation by you of the serious nature of the offending in which you were involved particularly in relation to Charges 1 and 2, that your role was reasonably peripheral, involved no aspect of gain to yourself, that you have suffered considerable humiliation and loss of face within your own community, and that you have, as I have said, very good prospects of rehabilitation.
38 Notwithstanding the fact that you did not enter a plea of guilty to these charges, I do accept you are ashamed of your actions, and that the need for specific deterrence is somewhat reduced in your case. However, as I have said, your offending is serious. It involved assistance in the proliferation of a damaging drug, and assistance to a man who was clearly engaged in widespread trafficking of amphetamine and ecstasy. I therefore sentence you as follows.
HER HONOUR: Could you stand up, please?
Charge 1, you are sentenced to 2 years' imprisonment.
On Charge 2, you are sentenced to 2 years' imprisonment.
On Charge 3, you are sentenced to 2 years and 6 months' imprisonment.
I order that 6 months of the sentences imposed on Charges 1 and 2 be served cumulatively to the sentence imposed on Charge 3 and to each other, giving a total effective head sentence of 3 years and 6 months.
Because of the significant mitigatory factors in your case, I order that you serve 12 months of this sentence before becoming eligible for parole.
Thank you.
Is there anything else I need to attend to?
MS DOYLE: Your Honour, pre-sentence attention in that matter is 80 days.
HER HONOUR: 80.
MS DOYLE: 80.
HER HONOUR: I direct that 80 days of that sentence has already been served by way of pre-sentence detention.
MS DOYLE: And there's a disposal and a 464ZF order that was sought, Your Honour.
HER HONOUR: Yes. I need to tell you, Mr Atkinson, that I have ordered that police can take a saliva sample from you for the purposes of the database, DNA database, and if you do not consent whilst that is been taken, police may use reasonable force to obtain it. All right. Thank you.
(At this stage the court proceeded with another matter.)
PRISONER REMOVED
HER HONOUR: Yes, thank you, counsel are excused.
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