Director of Public Prosecutions v Atkinson

[2024] VCC 1308

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00886

DIRECTOR OF PUBLIC PROSECUTIONS

v

ATKINSON, Geoffrey

-

JUDGE:	His Honour Judge Palmer
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	31 July 2024
DATE OF SENTENCE:	20 August 2024
CASE MAY BE CITED AS:	DPP v Atkinson
MEDIUM NEUTRAL CITATION:	[2024] VCC 1308

REASONS FOR SENTENCE
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Subject:Criminal Law - Sentence

Catchwords:                 Theft – Aggravated burglary – Threat to inflict serious injury – Intentionally causing injury – Affray – Unlawful assault – Family violence – sustained physical and verbal attack – objectively serious offending – repeated violence and assault – deterrence denunciation and punishment required even with mitigating factors – Aboriginal offender – Difficult childhood – Substance Abuse - Cognitive impairment reducing general deterrence – Poor prospects of rehabilitation

Sentence:  3 years 9 months imprisonment with a non-parole period of 2 years and 10 months

6AAA:6 years imprisonment 

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S MacDougall	Office of Public Prosecutions Victoria
For the Accused	Mr K Foote	Tyler Tipping and Woods

HIS HONOUR:

Circumstances of offending[1]

[1] The offending is set out in more detail, and in chronological order, in the Summary of Prosecution Opening for Plea (8 July 2024).  I have also read and taken into consideration Outline of Submissions on behalf of the Accused on Plea (30 July 2024); and Sandra Cokorilo, Psychological Assessment Report (30 May 2024) and Supplementary Report (16 August 2024).

1. Geoff Atkinson, on 13 August 2023 you and your then partner Shianne Burgess-Tracey, went to the First Choice Liquor store in Moe.  An employee asked Ms Burgess-Tracey to leave.  You grabbed a bottle of Jim Beam on the way out, and refused to pay (charge 1).

2. On 15 August 2023, at around 5.30 pm, you went to Ms Burgess-Tracey’s boarding house.  You were holding a large drill bit in your hand, and used it to bash on the front door, and then to smash a small window in the door. You reached in through the broken window to open the door, entered (charge 2), walked to Ms Burgess-Tracey’s room yelling out “Shianne”, and then repeatedly used the drill bit to stab the door to her room.  You left within two minutes of arriving.

3. About five minutes later, you boarded a bus for Moe.  Ms Burgess-Tracey got on at the next stop.  You met her at the door and immediately started an argument with her. 

4. During the course of this, you elbowed her in the face, held your elbow against her throat, elbowed her in the arm, slapped her in the face and used your body to bump her back into her seat, to shove her against a window, and to trap her in the back of the bus (charge 4, which includes all the acts of physical violence against Ms Burgess-Tracey on the bus).  At one point you threatened to “bleed” her and to put her head through the window (charge 3).

5. You continued to attack Ms Burgess-Tracey, including:

   a.Punching her in the face, and knocking at least one of her teeth out;

   b.Grabbing her by the back of the head and marching her down the aisle towards the front of the bus;

   c.Yelling at her to get off the bus;

   d.Dragging her by the hair (and in the process, pulling out a chunk of her hair);

   e.Punching her in the nose and mouth with a closed fist; and

   f.Smashing the back of her head into the window.

6. When two of the passengers on the bus – Ebony Nowell and Cyndi Diaz – intervened to try and deescalate the situation and to protect Ms Burgess-Tracey, you:

   a.Told Ms Nowell to stop staring at you, and spat at her (related summary charge 4, which also includes the other assaults of Ms Nowell);

   b.Pulled Ms Nowell by the arm;

   c.Began swinging punches at Ms Burgess-Tracey around Ms Nowell;

   d.Struck Ms Nowell;

   e.Pushed Ms Diaz on several occasions (related summary charge 8, which also includes the other assaults of Ms Diaz); and

   f.Grabbed Ms Diaz by the shoulders and pushed her off the bus when she tried to block you from getting back on.

7. Other passengers must have been terrified by your conduct (charge 5), including:

   a.Several passengers who fled from the bus when the driver opened the doors;

   b.The bus driver; and

   c.Melissa Sinclair, who was hugging her seven year old daughter to try and protect her. 

8. You eventually got off the bus.  Ms Burgess-Tracey’s injuries included:

   a.A swollen lip;

   b.A couple of missing teeth;

   c.A lump on her head, possibly from where the clump of hair had been pulled out;

   d.A mark and scratch on her neck; and

   e.Bruising to her face, including her nose and eye.

9. I have watched CCTV footage of the episode on the bus.  It is far more harrowing than my words, or the words of the prosecution summary, convey.  The entire incident lasts for approximately 14 minutes.  You are constantly shouting at, threatening and attacking Ms Burgess-Tracey; and Ms Burgess-Tracey is screaming and crying, and covered in blood. 

10. Watching the footage, I felt moved by the heroic courage of Ms Nowell and Ms Diaz, who both kept putting themselves in harms way to try and protect Ms Burgess-Tracey from you.  I have no doubt that their bravery saved her from more serious harm.  If it were in my power, I would award them both medals. 

11. You were arrested on 16 August 2023, and made full admissions (limited by the fact that you were not able to remember all of your offending).  You said that on 15 August you and Ms Burgess-Tracey had been drinking together earlier in the day, and you could not remember why you were angry with her.   

12. The incident has had a serious and ongoing impact on Ms Burgess-Tracey. [2]  The permanent damage you inflicted on her mouth and teeth continues to affect her physically, financially, emotionally, socially and psychologically. 

    [2] Victim impact statement (19 August 2024).

13. You offending also impacted on other people on the bus, including Ms Diaz, who explained that it has worsened her own PTSD – as a survivor of domestic violence, herself – and has, among other things, made her too afraid to take public transport. [3]

    [3] Victim impact statement (30 July 2024).

14. You have pleaded guilty to the following charges:

    a.Charge 1: theft, contrary to s 74 of the Crimes Act 1958, the maximum penalty for which is ten years’ imprisonment; and

    b.Charge 2: aggravated burglary (person present and intent to assault), contrary to s 77 of the Crimes Act 1958, the maximum penalty for which is 25 years imprisonment;

    c.Charge 3: threatening to inflict serious injury, contrary to s 21 of the Crimes Act 1958, the maximum penalty for which is five years imprisonment;

    d.Charge 4: intentionally causing injury, contrary to s 18 of the Crimes Act 1958, the maximum penalty for which is ten years imprisonment; and

    e.Charge 5: affray, contrary to s 195H of the Crimes Act 1958, the maximum penalty for which is five years imprisonment.

15. You have also pleaded guilty to two related summary offences of unlawful assault (charges 4 and 8), contrary to s 23 of the Summary Offences Act 1966, the maximum penalty for which is six months imprisonment, or a fine of 25 penalty units.

Objective seriousness and current sentencing practice

1. In my view – and in the view of counsel – the most serious part of your offending is what you did on the bus (charges 3, 4 and 5, and related summary charges 4 and 8).  It is really a single extended episode of offending, and it would be difficult and artificial for me to try and separate out the individual criminal acts.  For that reason, both counsel also agreed that it would be appropriate for me to impose an aggregate sentence in relation to the bus offending.  I intend to do so. 

2. I find that your offending is objectively very serious:

   a.You committed numerous, repeated acts of violence towards Ms Burgess-Tracey;

   b.You did not allow her to escape from you;

   c.You assaulted two women who came to her aid;

   d.Your behaviour would have terrified other people on the bus, including a mother and child; and 

   e.You engaged in this behaviour over an extended period of time.

3. The theft and aggravated burglary were both unsophisticated offending, of limited duration.  I consider that only a small amount of cumulation is necessary.

4. In sentencing you, I am required to take into account current sentencing practice.  Your counsel referred me to three comparable cases.[4]  Of course, none of these cases are identical to yours; and current sentence practice is neither a controlling factor nor a yardstick.  Nevertheless, the cases do have several features in common with your own offending:

   a.The offenders were Aboriginal men with extensive criminal histories;

   b.The offenders pleaded guilty to a number of offences arising out of one or more serious incidents of violence against their intimate partners, committed (in at least two of the cases) while they were under the influence of drugs; and

   c.The offenders were able to rely in mitigation on the principles in one or both of Bugmy and Verdins, and in one of the cases, on their youth.

   [4] See Geoff Atkinson – Comparative Case Table: DPP v Kerr [2024] VCC 721 (Judge Chambers); DPP v Mitchell [2024] VCC 505 (Judge Cahill); and DPP v Mitchell [2023] VCC 1807 (Judge Wraight).

5. The offenders received total effective sentences of three years and three, six or nine months imprisonment, with non-parole periods of two years and zero, four and six months respectively.  

6. These cases confirm that conduct such as yours must be deterred, denounced and punished; and that even where there are significant mitigating factors, a substantial period of imprisonment must be imposed.  

7. It is an invidious task to attempt to grade and compare the violence inflicted on their intimate partners by you and these other offenders.  However, I accept that yours was not the most serious violence.  On the other hand, your violence extended to and affected other people, in particular those on the bus. 

Personal circumstances and other subjective matters

1. You were born in 1986 and are now 38 years old.  You are a member of the Gunai Kurnai/Yorta Yorta mob.  Your mother died when you were three years old, and you were then raised by your grandmother.  You had no relationship with your alcoholic father. 

2. Although you report having had a stable and positive early environment,[5] both counsel agreed that your childhood was objectively difficult, and that the difficulties of that childhood continue to affect you.  I give that weight in the sentencing process.[6]

   [5] Cokorilo report, [56].

   [6] Bugmy v The Queen (2013) 249 CLR 571; Newton v The King [2023] VSCA 22 at [45].

3. You began drinking in Year 7, and have a serious alcohol problem.  You have also used cannabis and methamphetamine from time to time, and at the time of the offending were using methamphetamine on a daily basis.  You were affected by alcohol and methamphetamine at the time of the offending. [7]  This, as your counsel accepted, is to explain, but not to excuse your conduct. 

   [7] Cokorilo report, [37].

4. As a child you were diagnosed with attention deficit disorder.  More recently, you have been diagnosed with stimulant and alcohol use disorder, mild anxiety and depression, and various cognitive impairments.  These impairments undermine your ability to make rational choices and to exercise appropriate judgment, and have a disinhibiting effect on you.[8]  They also reduce your suitability as a vehicle for general deterrence. [9]

   [8] Cokorilo report, [62]-[63]; and Cokorilo supplementary report, [4]-[5].

   [9] R v Verdins (2007) 171 A Crim R 227, limb 3.

5. While your intoxication and methamphetamine use clearly contributed to your offending, I accept that your cognitive impairments had an independent impact on you and in that way contributed to your offending.  This somewhat reduces your moral culpability. [10]

   [10] R v Verdins (2007) 171 A Crim R 227, limb 1.

6. You have not worked since the age of 18, and have never lived independently, living with your grandmother when you are not in custody.  You have three children from two previous relationships.  You maintain some contact with the youngest of them. 

7. You have been in custody since your arrest on 16 August 2023.  During your time at Fulham Correctional Centre you have engaged in, and contributed to, Aboriginal cultural activities.[11]  You have also been entrusted with the role of head billet in your unit. 

   [11] See letter from Vivianne Everett (30 July 2024); bundle of certificates; and photographs of your paintings.    

8. You have a lengthy criminal record which includes offences involving violence, family violence, indecent assault, theft and property damage; and you have already served several terms of imprisonment, including a sentence of five years and nine months imprisonment imposed in 2016. 

9. At the suggestion of your counsel, I read the reasons for sentence in that case. [12]  They confirm what appears evident from the other material: that the victims of your violence are usually your intimate partners; and that you are a decent human being when you are not abusing substances, which sadly only seems to be the case when you are in custody. 

   [12] DPP v Atkinson [2016] VCC 1879 (Judge Maidment).

10. In light of the above, your prospects for rehabilitation are poor, if not yet extinguished.  Your record also confirms the need for community protection, and for some specific deterrence. 

11. However, the person who needs to be deterred is not so much the contrite man appearing in this court room from Fulham, but the man who will eventually be released back into the community, and who will be exposed once more to the temptations of substance abuse. You must know that if you continue to use alcohol and methamphetamine, you will continue to behave in this way that has made you ashamed of yourself, and you will continue to be sent back to prison. 

12. You indicated your intention to plead at the earliest reasonable opportunity.  Your plea saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience and uncertainty.  This is particularly important at a time when the courts are still dealing with the after-effects of the pandemic. 

13. That your plea is also evidence of remorse was confirmed by your demeanour when the CCTV footage was being played in court: you appeared ashamed of your conduct, as you should have been.    

Orders

1. Had you not pleaded guilty, I would have imposed a total effective sentence of six years imprisonment.  Instead, I impose the following sentence:

   a.On charges 3, 4 and 5, and related summary charges 4 and 8, I convict you and impose an aggregate sentence of three years and 8 months imprisonment (this is the base sentence);

   b.On charge 1, theft, I convict you and impose a sentence of six months imprisonment, to be served concurrently with the base sentence;

   c.On charge 2, aggravated burglary, I convict you and impose a sentence of 18 months imprisonment, one month of which is to be served cumulatively on the base sentence;

   d.That makes for a total effective sentence of three years and nine months imprisonment;

   e.I direct that you serve two years and ten months imprisonment before becoming eligible for parole; and

   f.I declare that you have already served 370 days by way of pre-sentence detention.