Director of Public Prosecutions v Atkinson
[2024] VCC 738
•22 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
KOORI COURT DIVISION
CR-23-00105
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ATHENA ATKINSON |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 October 2023, 6 December 2023, 22 May 2023 |
DATE OF SENTENCE: | 22 May 2024 |
CASE MAY BE CITED AS: | DPP v Atkinson |
MEDIUM NEUTRAL CITATION: | [2024] VCC 738 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Home invasion – Intentionally cause injury – Theft – Plea of guilty – Koori Court Jurisdiction – Aboriginal offender – Category 2 offence – Substantial and compelling circumstances which are exceptional and rare
Legislation Cited: Sentencing Act 1991
Cases Cited:Akoka v The Queen [2017] VSCA 214; DPP v Lombardo [2022] VSCA 204; DPP v Farmer [2020] VSCA 140; R v McKee [2003] VSCA 16
Sentence: Three year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Hogan | Office of Public Prosecutions |
For the Accused | Ms R. Greensill | Robyn Greensill & Associates |
HIS HONOUR:
1Athena Atkinson,[1] you have pleaded guilty in the Koori Court to a charge of home invasion, a charge of intentionally cause injury and a charge of theft.
[1]Also known as Athena Sichounidis.
2Charge 1 is a Category 2 offence with a maximum penalty of 25 years' imprisonment. Charge 2 has a maximum penalty of 10 years' imprisonment, and the charge of theft is also 10 years' imprisonment.
3You have no prior criminal record. Essentially you have no relevant criminal record. I note that there were some subsequent driving matters that
Ms Greensill has told me about but essentially your lack of prior criminal record and limited history overall is very significant in light of the profound disadvantage you experienced in childhood, the exposure to alcohol and illicit substance use from a young age, both exposure to violence and actual violence you experienced, the traumas you experienced and the tender age you commenced illicit substance use as a consequence of these traumas.
Circumstances of Offending
4The facts of the offending are set out in the Summary of Prosecution Opening, which was Exhibit A on the plea, and forms part of these reasons for sentence. I will just briefly touch on them.
5Your offending was committed in company with your older cousin Sarah. You have described Sarah as basically having raised you when you were young. You were close to her and other cousins. Clearly Aboriginal kinship structure has been a feature of your experience.
6You are shocked at your involvement in the offences, I accept that. I accept you have no clear memory and that you were affected by GHB. You were also, to an extent , doing your cousin's bidding.
7Very briefly the facts of the matter are that Sarah Atkinson had a grievance with the unfortunate victim Ms Curic. It was in relation to an iPad. There were allegations of theft. I will not go into all the details that are set out in the Summary of Prosecution Opening, there were various threats and utterances that were made over text message and other means by Ms Atkinson. Clearly you were enlisted to assist and you were in a vehicle with Ms Atkinson, driven by an unknown man, to Ms Curic's house.
8Around 11 pm it was on 17 December 2021, you and Ms Atkinson and another pushed into the house when the door was opened. Ms Curic took evasive action locking herself in the toilet in fear. You and your co–offender kicked the toilet door in, dragged her out by her hair, dragged her across the loungeroom into her bedroom, both then punching and kicking her repeatedly to the head, yelling at her to hand over the iPad. So that brief summary is the home invasion, the intentionally causing injury.
9There is a continuation of that intentionally causing injury charge involving a wooden paint easel that you threw across the room, hit her in the head, causing a large laceration. Before leaving you made a demand and then took
Ms Curic's mobile phone and it is a theft charge.10Once you were arrested you made admissions and said you just went along with it, went with them in the car, you could not remember anything due to being drug affected and had been using GHB. When asked about the assault you said, 'The assault and all that stuff I cannot remember since I've walked in the front door and I've seen her, I just blanked out'.
Gravity of Offending
11I accept that you have had a lengthy and difficult battle with substance use and abuse that goes right back to a very tender age. These offences cause terror and pain and great trauma to your victim Ms Curic. I take those matters into account. I also accept you are horrified by your commission of these crimes and that they were completely out of character for you. Nothing of this nature before or since.
12I accept that without the influence of your older cousin and without the influence of illicit substance use, you would not have offended. Your moral culpability for each of those contributing factors needs to be assessed in light of your background. I will go into that in a little bit more detail when I come to your personal circumstances.
13The objective gravity of the offence is high of course, home invasion is a Category 2 offence, it carries a maximum penalty of 25 years' imprisonment. I have seen circumstances such as these charged as aggravated burglary simpliciter but, nonetheless, you have pleaded guilty to home invasion and thus placed yourself in that presumption of effectively a head sentence and a
non–parole period.14It is a very grave offence, people are entitled to feel safe in their homes. This had a vigilante aspect to it, the classic confrontation, entry, and the courts need to condemn such behaviour and denounce them and deter others from engaging in that criminal conduct.
Personal Circumstances
15I will not expand on your personal circumstances in detail, particularly given the traumas you have experienced in your life. You are a proud Yorta Yorta woman who grew up, I am satisfied, in circumstances of profound disadvantage. Your parents were afflicted with drug and alcohol problems. I was told you grew up in the Preston/Reservoir area where I understand a high population of Aboriginal families found their way to those areas, Housing Commission areas, after places such as Daish's Paddock and Lake Tyers and other places of abode on country were razed and not available anymore, and families relocated to places such as Preston and Reservoir and your family fell into that category.
16Your mother Marita was a well-known Yorta Yorta woman in the community. Unfortunately, she battled heroin use, alcohol abuse and mental illness throughout her life. Your father was a violent man. I will not go into the family structure, Ms Greensill has done that in her initial Outline of Submissions on Plea in relation to siblings and your mother's earlier partners.
17You were in and out of foster care from around the age of six. I received as an exhibit a Forensicare report dated 2 April 2024 which goes into more detail in relation to your personal circumstances. You described to the author of that Forensicare report your childhood as a 'very rocky road' and that your father was a full-blown alcoholic and you acknowledged your mother's significant difficulties with polysubstance misuse. You were witness on occasions to your mother becoming uncooperative and difficult, physically attacking Child Protection workers when you were in and out of foster care. You saw your mother pass out, overdose on numerous occasions and ambulance officers attending to revive her. You were the victim of sexual abuse at the hands of two family members. I will not go into the details in relation to that, they were touched on in paragraph 11 and also in the pre–sentence report and
Ms Greensill's outlines.18You were placed into care at one point in time with a paternal grandmother in Swan Hill. You were not happy there and inhaled petrol with a plan to pass out and get to hospital and run away but that did not succeed.
19Schooling was very difficult for you. You, I accept, had early diagnosis, or met the criteria, for ADHD and also Foetal Alcohol Syndrome. Your description of your schooling was that you were the class clown and had difficulties settling in given you would move to a lot of different schools. Year 9 you relocated to the Collingwood Alternative School where you received individualised learning and behavioural supports. You completed Year 11 equivalent and you were planning to undertake a Certificate 4 in hairdressing but you were unable to continue with formal education, falling pregnant with your first child at 16. Your second child was born some five years later.
20Your daughter was born one month premature and spent some time in the neonatal intensive care unit. Sadly, both children have been removed from your care around the time of the current offence and you spoke about this in detail at the sentencing conversation and of your desire to reunify as a family and that is a motivating factor for you to work towards.
21You commenced marijuana use at eight years of age, attending drug dealers with your parents or parent, often being left in the yard of drug dealers while activities were going on. You used methamphetamine or ice in later adolescence and GHB a few years prior to offending. I was told that at the peak of your use you smoked up to a quarter of cannabis along with two to three points of intravenous methamphetamine and 250 millilitres of GHB daily. You described yourself as a 'pay day user' and this is reflected in your absence of a criminal record.
22I accept in your case that there is a direct link between early exposure to negative influences, early gravitation towards drug use and the offending in this case. There is a strong connection between those factors. I also accept in your case based on the materials, and I will not go into all of the materials before me, but in particularly your mother's experience and an experience that you have now continued in relation to having difficulties reunifying with your own children whilst battling your own substance use issues, and not confined to those considerations, also considering what has been referred to in the materials of your mother's other connections, other partners but also your own family, cousins, uncles and so on and so forth, that intergenerational trauma has been a feature of your experience.
23You participated fully in the Koori Court Sentencing Conversation, participating with Aunty Yvonne Luke who urged you to try and break the cycle. You had been to rehabilitation prior to the sentencing conversation, you had been to Bridgehaven and I will go into that in a moment but you discussed that with Aunty Yvonne Luke and discussed in particular your motivating factor of – the motivating force of trying to get your kids back. You wanted to study community services, engage with VACCA. You had a goal, you told Aunty Yvonne Luke, to become a youth justice worker. Absence from your children was stressing you out and that you knew you had to get the ball rolling, do better and to be there for your children. I accept that that is a strong motivation for you and you know that to do that you want to address your drug vulnerability.
24At the time of the Sentencing Conversation I deferred sentence and you have been on bail for an extended period now and you have taken steps to address your drug problem. The offending was committed in December, you were 22. Since that time you had entered the Bunjilwarra program. I received two letters from Bunjilwarra, 3 June 2022 and 9 October 2023. Prior to the attendance at Bunjilwarra you did a two week detox at Western Health. Back in 2018 you had previously done five weeks and successfully completed the Bunjilwarra program.
25Whilst on bail for this matter you attended Bunjilwarra between 15 July and 6 October 2022, that is a residential program. A letter dated 9 October 2023 sets out your participation;
‘While in the program, Miss Sichounidis engaged with an individual trauma counselling, drug and alcohol individual counselling and psychoeducational groups and regular consultations with Dr Stephanie Ryan through headspace Frankston to progress goals relating to her physical and mental health particularly emotional regulation and substance abuse. Miss Sichounidis displayed the ability to self-regulate her emotions when she identified she was becoming heightened, utilising grounding techniques in order to self-calm and open communication techniques to address triggers.
I found Miss Sichounidis to be a pleasant and insightful young woman who has a history of exposure to family violence and alcohol and other drug dependence. Miss Sichounidis presents with a desire to address past trauma, reobtain custody of her children.'
26Unfortunately, you did not complete the program on that occasion. You made other efforts in 2023. You would engage with Wadamba Wilam at the time of the Koori Court plea hearing and a letter dated 9 October, which was the day before the Koori Court Sentencing Conversation, was provided. At that point you had indicated that you were interested in going back to residential rehabilitation at Bridgehaven and that Bridgehaven had a bed available. You had done a stint in Bridgehaven, 7 June last year to 4 September last year but, again, had self–exited. I will not read out from the letter dated 9 October but it provided useful information. I received an updated letter from Wadamba Wilam on 3 April this year which also provides useful information. I will not read from it but I have had regard to the contents therein.
27What emerged over a fairly lengthy bail period then of appearances before me which showed a significant degree of compliance with court supervision in itself, what emerged is I am satisfied that you are of the view that court ordered intensive residential drug rehabilitation perhaps will not work for you, that you need to be motivated enough to engage yourself and there is some merit in that, in my experience that is often the case. You have continued to engage, you have not been perfect in your efforts to commit but I do understand that there are other things going on in your life, particularly with regard to your children and so a significant aspect of the outcome in this matter has been that extended period of bail and very real attempts to engage in drug rehabilitation, some of which involved residential rehabilitation which invoked some small Akoka mitigation.[2]
[2]Akoka v The Queen [2017] VSCA 214.
28I am not going to refer in detail to the Forensicare report or the extended
pre–sentence CCO report which again I have found very useful, particularly in relation to the sorts of programs and plans which will be beneficial in helping break the cycle in your case.
Mandatory Sentencing Provisions
29Category 2 offence effectively means that I must sentence you to a term of imprisonment other than a sentence of imprisonment imposed in addition to a Community Correction Order, unless there are substantial and compelling circumstances that are exceptional and rare and that justify not making such an order.[3]
[3]S 5(2H)€ Sentencing Act 1991 (Vic) (‘Sentencing Act’).
30When making the evaluative assessment of whether there are substantial and compelling circumstances that are exceptional and rare, it is necessary to have regard to sentencing considerations applicable to cases of home invasion since in order to justify not imposing imprisonment, the circumstances would need to surmount those principles.[4]
[4]DPP v Lombardo (“Lombardo”) [2022] VSCA 204 at [63]-[64]; DPP v Farmer [2020] VSCA 140 at [47]-[48].
31In your case I have had regard to the circumstances of the offending, what I regard as towards the lower end of home invasion which is a very serious offence, but particularly your role in it being secondary, in my view, to Sarah Atkinson and being substantially affected by substances a matter for which you are not as morally culpable as for another person who has not experienced your childhood disadvantage and what that disadvantage led to.
32So I have borne in mind those circumstances of offending when making this evaluative assessment. When I take into account the following factors in summary;
1) Profound disadvantage which includes trauma, exposures to negative influences and neglect;
2) Intergenerational trauma, in particular in relation to extended family, experience and the kinship operation that was at play to a degree in this matter;
3) Poverty and disadvantage that you experienced which could be linked back to those intergenerational traumas and drug use entrenched within your extended family;
4) ADHD, PTSD, potential Foetal Alcohol Syndrome I accept are features of your cognitive profile and are relevant to this offending. Next the early drug use – commencement of drug use from a very young age and the links to this offending, and I refer to the case of R v Brooks and McKee.[5]
[5]R v McKee (“Brooks and McKee”) [2003] VSCA 16.
5) The connection of each of the above factors; so that is, intergenerational trauma, profound disadvantage, cognitive features and functioning, and early drug use, the connection of each of those factors to the offending, but particularly the drug use – – –
33MS GREENSILL: Your Honour.
34HIS HONOUR: Yes?
35MS GREENSILL: Can I just interrupt, my client's had to go to be ill in the bathroom and so she's going to come back but she's just indicated that she's sorry she's had to leave the screen for a minute.
36HIS HONOUR: I will just pause.
37MS GREENSILL: I thought I would warn Your Honour because it wouldn't be fair for Your Honour to be talking and not realise that she's not there for a little moment.
38HIS HONOUR: It is all right. Probably got about five minutes to go.
39MS GREENSILL: Yes.
40HIS HONOUR: Should we just pause? These reasons will be published of course.
41MS GREENSILL: Yes, I'm – if Your Honour wants to keep going – – –
42HIS HONOUR: They will be revised and published.
43MS GREENSILL: – – – I'm more than happy but – – –
44HIS HONOUR: And you are here.
45MS GREENSILL: Yes.
46HIS HONOUR: I want to speak to her at the end so maybe we will just give it a minute or two. Is she in text message contact with you, Ms Greensill?
47MS GREENSILL: Yes, yes, she is. I'll just tell her what's happening, Your Honour.
48HIS HONOUR: Yes, maybe just say, look, get herself together. I know that gastro, all of a sudden you feel like you might be able to come back but then you are off again so I do not expect her to labour through that but if she is going to be right in a couple of minutes, we will wait.
49MS GREENSILL: Thank you.
50HIS HONOUR: I think Ms Atkinson is back now.
51OFFENDER: I'm so sorry, Your Honour.
52HIS HONOUR: That is all right.
53OFFENDER: I just had to go to the bathroom.
54HIS HONOUR: That is okay, I understand. I will continue on.
55In determining whether there are substantial – I was going through a list, I will complete my list that I have taken into account; your role in the offence, no prior convictions in light of all of the above factors, the deferral of sentence, no reoffending over that period of deferral save for the driving matters Ms Greensill told me about, the efforts at drug rehabilitation over that period of deferral and the efforts at family reunification over that period of deferral, your participation in the Koori Court Sentencing Conversation and willingness to engage in cultural supports and your plea of guilty.
56In determining whether there are substantial and compelling circumstances, I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in s 5(1) of the Sentencing Act. I must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence. I must not have regard to an early guilty plea, prospects of rehabilitation or parity with other sentences. I have had regard to your plea of guilty but not the early nature of it.
57In determining whether there are substantial and compelling circumstances under sub–s(2GA), I must have regard to the intention of Parliament that a sentence of imprisonment should ordinarily be made and whether the cumulative impact of the circumstances of the case would justify departure. Such a sentence must have regard to the two–stage test set out in Lombardo, I will not read that out. In particular I have had regard of course to the prosecution submission on the last occasion given the history of the matter and the reports that were, at that stage, to hand that they concede the test could be met. So that was a significant concession.
58So, I am satisfied that there are substantial and compelling circumstances, exceptional and rare that justify not placing a young, vulnerable Aboriginal woman such as yourself in prison for an extended period of time given all of those circumstances.
59Nonetheless, I must still reflect general deterrence and denunciation and in order to do that I have to impose a lengthy community correction order that does have some punitive aspects to it. I note that community work was not recommended, however given the seriousness of the offence in my view a community work component should form part of this community correction order.
60I sentence you as follows, Ms Atkinson, if you can bear with me. If you need to leave you can do so.
Sentence
61On the indictment charges home invasion, intentionally causing injury and theft, I am going to impose an aggregate sentence given that they were part of the one criminal transaction, I am sentencing you to a three year Community Correction Order. There will be 100 hours of unpaid community work pursuant to that order.
62You will be subject to supervision. You will also be subject to judicial monitoring, initially a three month period. There will be treatment and rehabilitation conditions, drug assessment and treatment, mental health assessment and treatment and offending behaviour programs. Up to 75 hours of treatment work can be credited towards the unpaid community work.
63Now I know you are not feeling well, Ms Atkinson, so I am not going to go on for much longer but I must tell you that if you breach that order – first of all, do you consent to be on that order? You can just nod.
64OFFENDER: Pardon, what was that sorry?
65HIS HONOUR: Do you consent to be on the community correction order,
Ms Atkinson?66OFFENDER: Yes. Yes, I do, Your Honour.
67HIS HONOUR: I have to ask you, you see. You consent, good. If you breach the order, if you do not attend when you are supposed to attend, if you commit offences, all of those matters may breach the order and you will be brought back before me for resentence, so you do not want that to happen. I will be seeing you in three months' time for a judicial monitoring session which will be a 9.30 session. You can appear remotely like this and we will hear what has been put in place for you and how things are going.
68It has been noted in the Corrections assessment that the protective factors are the Family Drug Treatment Court and the Neami support service, you have got Wadamba Wilam, so keep using all the services. You will probably be referred for more, in fact you will be, just remember it is a court order. It is a sentence. It is a sentence instead of imprisonment and so what Corrections ask you to do in terms of drug assessment and treatment in particular but all the conditions, you are required to do. Understand?
69OFFENDER: Yep.
70HIS HONOUR: Section 6AAA, if it was not for your pleas of guilty, Ms Atkinson, I would have sentenced you to two and a half years in prison with a 12 month non–parole period. All right.
71Were there any other orders sought, Ms Hogan?
72MS HOGAN: No, Your Honour.
73HIS HONOUR: No. All right, thank you. Ms Greensill, does that cover everything?
74MS GREENSILL: Yes, Your Honour. If the order were to be emailed to me, I could actually take it to her and get her to sign it and then I can scan it back which is probably the better way because she's only got her phone at home but she's not very far, I can go to where she is quite easily.
75HIS HONOUR: Well thanks for volunteering that, Ms Greensill, that puts the responsibility on you.
76MS GREENSILL: Never mind, that's all right.
77HIS HONOUR: So I'll sign it now, it will be emailed to you for her signature – and of course, Ms Atkinson, you need to report to Corrections within two days to commence this order. If you do not do that you will be trouble and be back before me.
78OFFENDER: Yep.
79HIS HONOUR: But Ms Greensill will get you that order to sign but I have taken your oral consent as consent.
80OFFENDER: Yep.
81HIS HONOUR: But we will get that signature on it as well. Thank you, Ms Greensill. Yes, we will adjourn the court. You can take care of yourself now, Ms Atkinson.
82OFFENDER: Thank you, Your Honour.
83MS GREENSILL: Thank you, Your Honour. Thank you for your help this morning with the link, thank you a lot. If we could be excused.
84MS HOGAN: Your Honour pleases.
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