Director of Public Prosecutions v Atkinson

[2023] VCC 2025

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

KOORI COURT DIVISION

CR-23-01207

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEIKAH ATKINSON

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2023
DATE OF SENTENCE:	30 October 2023
CASE MAY BE CITED AS:	DPP v Atkinson
MEDIUM NEUTRAL	[2023] VCC 2025

REASONS FOR SENTENCE

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Subject: CRIMINAL Law - Sentence

Catchwords:                   Intentionally Damage Property – Aggravated Burglary – Plea of Guilty – Koori Court Jurisdiction – Application of Verdins

Legislation Cited:           Sentencing Act 1991; Crimes (Mental Impairment and Unfitness to be Tried) 1997; Mental Health and Wellbeing Act 2022

Cases Cited:     R v Verdins [2017] VSCA 62

Sentence:Total Effective Sentence of 375 days’ imprisonment in combination with a  two year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. D. Hogan	Office of Public Prosecutions
For the Accused	Mr M. Haralambous	Victoria Legal Aid

HIS HONOUR:

1Neikah Atkinson, you have pleaded guilty before me in the Koori Court to a charge of destroying or damaging property, two charges of aggravated burglary and relevant summary offences, contravene a personal safety intervention order, committing an indictable offence whilst on bail and contravening a conduct condition of bail.

Circumstances of Offending

2You have admitted prior convictions and your criminal record.  The facts of the matter are set out in the Summary of Prosecution opening for plea which was Exhibit A on the plea and forms part of these Reasons for Sentence.  In briefer terms, on 2 October last year you attended at an address in McEwan Road in Heidelberg Heights and rang the doorbell.  Your victim, Mr Rohan, came towards the door.  You asked to be let in and that was refused.  You then became aggressive, knocking loudly on the door and trying to force it open, kicking at the wire screen door.

3Mr Rohan who was known to you as an associate from some years before asked what you were doing.  You kicked through the wire screen door and tore it off where it was attached.  That is the criminal damage charge.  You entered the house and assaulted your victim by punching him to the face and head multiple times.  His partner was upstairs and could hear the altercation.  She heard him call out for help and to telephone the police.  That forms the basis of the first aggravated burglary.

4You were pushed out of the house into the driveway area by Mr Rohan and he was telling you to leave.  Whenever he let go of you, you would come back towards him, hit him and try and get back inside the house.  A neighbour came out and assisted your victim in removing you from the property and you then left.  Your victim had cuts to his legs and arms as a result of the assault.  He was in considerable fear that you would come back and try something similar again.  It was inexplicable conduct from his perspective.  He had known you for some six to seven years earlier through trade school and neither he nor his partner had anything to do with you, as I understand it, in more recent times at least. 

5On 4 October an interim personal safety intervention order was issued.  One of the conditions prohibited you from going within 200 metres of your victim's address and that was served on you.  You were bailed after being arrested.  On 6 October you were bailed from the Magistrates Court and one of the conditions of bail was not to attend within 100 metres of your victim's address.

6On 25 October you did just that and attended the house again, looking through the living room windows of the ground floor.  You were detected on the doorbell camera.  You were seen to unlock the front door and enter the house without permission and that forms the second aggravated burglary and indeed the relevant summary offences also.

7Your victim's partner locked herself in the bedroom due to fear and called the police.  Your victim walked downstairs and asked you what you were doing there.  You rushed at him and punched him in the jaw with a closed fist and rushed past him up the stairs before you were tackled.  You again punched your victim several times.  He continued to hold you.  You were held there until police attended.  You refused to be interviewed in relation to that incident.  Your victim had several red marks on his thumb, hands and face as a result of the assault.

8The maximum penalty for aggravated burglary is 25 years imprisonment.  The maximum penalty for criminal damage is 10 years imprisonment.  In relation to the relevant summary offences the maximum penalty for contravene an interim personal safety intervention order is two years imprisonment.  The maximum penalty for commit an indictable offence whilst on bail is three months imprisonment and the maximum penalty for contravene a conduct condition of bail is three months imprisonment.

9This was baffling behaviour and the behaviour is to a significant extent explicable by your deteriorating mental health over what in hindsight appears to be years. It is significant in the context of this case that it was not until your second remand in relation to your arrest after the second aggravated burglary that serious mental health illness was detected and treatment commenced.

Koori Court Sentencing Conversation

10You pleaded before me in the Koori Court sentencing hearing on 12 September this year.  At the time of that plea I was provided with a report form Dr Darjee, forensic behavioural assessment and consultation services. Dr Darjee's report was a recent report at that time.  I will refer to some aspects of Dr Darjee's report which was a very thorough report in relation to your then situation.  In relation to the offending before me, Dr Darjee noted that there was no apparent reason for you going to the address or attacking the victim.

11In your account to Dr Darjee in relation to your return to the address you stated that you kicked down the door as they had a dispute.  You said they used to be mates at trade school.  When asked the nature of the dispute you said, "I just did.  It was stupidity.  I got given an IVO."  You later said that in relation to the breach of that IVO and the return to the address you told Dr Darjee that you were in dispute about life and how come they were not mates.

12Dr Darjee noted that your mental state had deteriorated between his consultations which was May this year and the second being September this year.  In relation to your mental health at that stage, that is, by the stage of the September consultation, he stated you clearly suffered from a first episode of psychosis which started in early 2022 and despite treatment you remain unwell and lacking in insight now.  In relation to you Dr Darjee  wrote:

"He meets criteria for a diagnosis of schizophrenia with evidence of a marked change in his mental state and behaviour including withdrawal and isolation.  A suspiciousness likely due to delusions of reference and persecution, becoming vague and perplexed, talking to himself likely due to experiencing auditory hallucinations.  Unable to give reasons for his behaviour over the last year but also alluding to feeling his thoughts were disturbing and being interfered and having problems sleeping.

Associated behaviours have included sudden outbursts of anger and aggression and banging his head and limbs against doors and walls.  His difficult and disturbed behaviour in custody especially from late October to January was very likely due to him being acutely psychotic.  He has been on anti-psychotic medication now for about six months but he clearly remained unwell and lacking in insight when I saw him recently.

I could not discern any real improvement in his mental state over the four months between my two meetings with him and if anything he had deteriorated somewhat.  If he were to be released from prison soon he would need immediate compulsory treatment in hospital.  It is difficult to give an opinion about his prognosis at this stage.  It is unclear to me if he has been suitably treated and monitored by mental health services in prison.  Notably, he has not been in a prison mental health unit recently but has been receiving outpatient treatment while in the mainstream prison which may well be inadequate to meet his mental health needs."

13Dr Darjee went on at that stage to note that there would clearly be a risk of further similar random assaults if he was living in the community soon without a marked improvement in his mental state, level of insight and commitment to treatment. In relation to the connection between your serious mental illness and the offending Dr Darjee wrote:

"His mental illness was both necessary and sufficient to account for his behaviour in committing the offences and I cannot identify any other factors that significantly contributed to him behaving as he did at the four incidents.  In my view, although he knew what he was doing on each occasion, he did not know that the conduct was wrong and that he could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong.

Indeed in my previous report my view was that he had a defence of mental impairment available to him in relation to all the charges he was facing.  His severe mental illness clearly very significantly impaired his judgement, his ability to make calm and rational choices, his ability to think clearly, his appreciation of the wrongfulness of his actions and made him disinhibited."

14Dr Darjee went on to opine that if released you would require compulsory treatment and opined that you would require treatment in a hospital at that time and at an absolutely minimum, treatment under a community treatment order.  Dr Darjee also offered opinion as to your experience of custody due to your serious mental illness and the limitations on treating the illness in custody and I accept that treatment in custody has been suboptimal and there has been deterioration in your mental illness as compared from what it would be with more optimal treatment.

15You attended the Koori Court plea having indicated you would plead guilty at an early stage, that is, at the committal mention stage and as was noted in your representative's written submissions and chronology attached, there was a basis for perhaps running a mental impairment defence and this was considered with you, and no doubt those supporting you, and you elected to accept criminal responsibility for the offending rather than to run a defence of mental impairment, which if successful would have placed you under the operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Mental Health and Wellbeing Act 2022 (Vic).

Sentencing Conversation

16Your participation in the Koori Court conversation was to your credit and a matter that I have taken into account, notwithstanding that there were some limitations in your engagement which I put down entirely to the impacts of mental illness and your medication and working through the illness.  But you were very well supported during the sentencing conversation.  Uncle
Dr Wayne Atkinson, your father Graham, Aunty Marlene Burchell, and your mother appeared remotely.  All were there to support you and all participated thoroughly in the Sentencing Conversation which was of great benefit to the Court which enabled me to get a real sense of the family support you enjoyed and a real sense of your life and the sad deterioration due to mental illness, which was not obviously apparent to everyone at the start of that downward spiral which seems to be for the last five years or so.

17Aunty Thelma Austin and Uncle Trevor Gallagher conducted the Sentencing Conversation and spoke in glowing terms of your family and your family's prominence in the Yorta Yora community but wider Aboriginal community, their leadership over the years and knowledge and it was noted the many forebears you share of prominence including leaders and advocates such as Thomas Shadrack James, William Cooper and others.

Personal Circumstances

18Your father spoke of you being a happy child growing up and you have got your older brother and you are getting on well with him up until more recent years and then you had been engaged in working at Parks Victoria and to commence in firefighting training.  But things clearly fell apart, which I put down entirely to the onset of the mental illness.  Your criminal record needs to be viewed in this light also.

19You have been supported by your mother and your father and wider family throughout this journey, but no doubt it had been puzzling for them at particular times. You withdrew, withdrew within yourself.  In that sense your apprehension and placement in custody and the work that Forensicare has been able to do in order to identify your need for medication and interventions has been a turning point at a point from which I am now satisfied that properly supported you will have the ability to engage with mental health services and move forward with your life.

20There are still insight problems.  You still have limited insight but I am satisfied that there is enough other protective factors including what I am satisfied is an understanding on your part that orders are to be abided by that give me some confidence that you can engage in the community and I have further confidence that the treatment of your serious mental illness is better managed in the community than it is in custody.

21I consider that further incarceration will either result in deterioration in your mental health or at best a stunting of your recovery and in those circumstances consideration such as the protection of the community, specific deterrence and rehabilitation are not met by further incarceration.  At the time of the Koori Court plea, given the nature of Dr Darjee's opinion, it was not possible to consider releasing you at that point unsupported as it was and whilst there was still considerable uncertainty in relation to your stability. I received a Forensicare report from Dr Lim.  That report was dated 19 October and in that report Dr Lim provided a succinct and helpful summary of your background, in particular focusing on what I have just touched upon, the years of deterioration dating from roughly four to five years ago when you became disengaged.

22At the start of that period you were a trainee ranger with Parks Victoria prior to training as a firefighter.  You then ended up on Centrelink.  You were isolating, not helping at home.  There has been an acceptance that there are alcohol and drug issues.  You became more withdrawn but also prone to outbursts of anger, becoming verbally and physically aggressive and that resulted in intervention orders.  It was clear that you were experiencing symptoms of paranoia, hypervigilance and misinterpreted the actions and words of others.  You became fixated on religion and become a born again Christian. 

23Dr Lim in her thorough analysis concluded with this recommendation:

"In the event of a non-custodial disposition I would recommend that
Mr Atkinson continue on his anti-psychotic depo at the very minimum.  Given his ongoing residual psychotic and negative symptoms and his poor compliance of oral medications consideration should be given to a second depo.  Mr Atkinson should be linked into an area mental health service where treatment should be enforced until sufficient therapeutic rapport has been achieved with an improvement in insight.

Mr Atkinson should also engage with drug and alcohol services to remain abstinent of any substances.  It is recommended that Mr Atkinson should remain engaged with a psychiatrist and area mental health service for an ongoing assessment of his mental statement, response to medication and further treatment.  His lack of insight may require him to be subject to a Mental Health Act treatment order.

If he is released by the courts, mental health area response service clinicians can assist in making appropriate links with the local mental health services and assess him for a possible assessment order."

24Dr Lim also noted the benefits of having an NDIS package which is not a matter that I can make any direction in respect of. 

25Forensicare had noted on 12 September but also again today and last week that treatment in the community under the auspices of the Mental Health Advice and Response Service was appropriate, that a compulsory order was not required and I have noted already this morning the receipt today of the
Mental Health Advice and Response Service report dated 25 October 2023 and I read part of that out.

26I do accept that what is contained therein it does raise concerns of course.  There are risks, as do the Community Corrections Order Assessment refer to high risk.  There are risks and those risks are anchored in insight and the ability of the mental health service to treat Mr Atkinson which relies to a large extent on his engagement with them and abiding by directions.  That is why I propose to impose a sentence which carries with it a Community Corrections Order that mandates that engagement with the mental health service.  The MARS report states this:

"It's respectfully recommended that the mental health condition be mandated as part of any Community Corrections Order.  This was discussed with him in today's assessment and he agreed to this condition.  Such treatment is available to him via an area mental health service.  He can be effectively managed by Corrections given his current mental health need and his mental state does not appear to impede his ability to engage with Corrections.  He does not need immediate or emergency mental health follow up."

Objective Gravity of Offending

27In combination with that report I also received a Community Corrections Order Assessment Report which assesses you as suitable for a
Community Corrections Order.  Offences of aggravated burglary are inherently serious offences.  You have committed that offence twice within a short space of time in relation to the same victim.  They are inherently serious offences because they involve the uninvited entry into a person's home.  A person's home is sacrosanct and people are entitled to feel safe in their dwellings without members of the community bursting in, breaking in, forcing their way in and confronting the occupant, assaulting, as occurred in this case.

28For all those reasons this is very serious offending and there is as such a need for general deterrence.  The seriousness of the offending is reflected by the maximum penalty of 25 years imprisonment.  In your case I do accept based on essentially on Dr Darjee's report that your moral culpability or subjective culpability it is sometimes referred to, your responsibility for the offending is very significantly reduced due to the psychotic episode I accept you were experiencing.

29That being the case, the need for general deterrence is significantly moderated, as is the need for denunciation.  It was noted by Dr Darjee that you may well have had a mental impairment defence.  It is not relevant for me to make any finding in that regard, save to acknowledge that such a defence could have been run, which in turn reflects on the significance of the plea of guilty, but it also highlights that whilst criminal responsibility has been accepted, it is a criminal responsibility that is greatly reduced than it would otherwise be for a person who was not suffering from that mental impairment.

Matters in Mitigation

30You have pleaded guilty at an early stage.  As I have indicated, it is also mitigatory that you have participated in the Koori Court Sentencing Conversation which would not have been easy for you.  I also accept the applications of the Verdins principles limbs 1 to 6.[1]  The prosecution concedes that limbs 1 to 5 and also note that 6 may well apply.  I am satisfied that further incarceration would see a deterioration in your mental health from what it would otherwise be being treated in the community.  That of course is premised on an assumption that you will comply with the requirements, which I fully expect you will do.

[1]      R v Verdins [2017] VSCA 62.

31Taking into account all of those matters I propose to sentence you as follows, Mr Atkinson.  You will be sentenced to an aggregate sentence notwithstanding the lapse in time between Charge 1 and 2 on the indictment and Charge 3 and associated summary offences.  Given the nexus of your mental health illness I am satisfied there is sufficient connection between all of the offending before me, indictable and summary, that justifies the imposition of an aggregate sentence.

Sentence

32So I sentence you in combination as follows, for the charges before me you are to be imprisoned for 375 days in combination with a two year
Community Corrections Order. Special conditions of that Community Corrections Order will include 75 hours of unpaid community work.  You are to reside at your father's address.  You are to be subject of mental health assessment and treatment as directed.  You are to attend your GP appointment this Thursday.  Is it Dr Hess, Mr Haralambous?

33MR HARALAMBOUS:  Yes, Your Honour.

34HIS HONOUR:  You are to attend for alcohol and drug assessment and treatment as directed.  There will be a curfew that is to be reviewed.  The curfew will be imposed in relation to the Community Corrections Order for you to remain at the address where you are living between the hours of 10.30 pm at night and 6 am in the morning.  I will review that curfew at a judicial monitoring hearing to be held at 9.30 am on 20 December.  At that hearing if reports are positive and you are engaging and you are complying with the requirements of the Community Corrections Order, I will likely remove that curfew. 

35Another special condition and this is under a non-association condition which I am of the view I can make in respect of a Community Corrections Order is that you attend within 100 metres of the McEwan Road address and that you not be within 50 metres of Chris Rohan.  I will allow 50 hours of therapeutic attendances to be credited towards those community work hours.

36Pursuant to s6AAA of the Sentencing Act 1991 (‘Sentencing Act’), were it not for your pleas of guilty I would have sentenced you to a head sentence of four years imprisonment with a non-parole period of two and a half years. Pursuant to s 18 of the Sentencing Act I declare that you have served 375 days as pre-sentence detention.

37There are no other special orders are there?

38MS HOGAN:  No, Your Honour.  Just in relation to the non-association condition, I was advised in the intervening period that Mr Rohan has actually changed address.

39HIS HONOUR:  Yes.

40MS HOGAN:  So perhaps if it could that address or any other address to be advised.

41HIS HONOUR:  Yes.  Look, I didn't inquire about that because I mean that's the known address.

42MS HOGAN:  Yes.

43HIS HONOUR:  See, the thing is it may well be better for all concerned if
Mr Atkinson doesn't know that address.

44MS HOGAN:  Yes.

45HIS HONOUR:  I'm happy to say - I can still put an order in that he not attend within 100 metres of his address or place of work.  The problem with that is he might not know.

46MS HOGAN:  Not know, kyes.

47HIS HONOUR:  But it would be knowingly.  I mean I think that - I think I will make that order just on the understanding that I doubt Corrections will breach him for an inadvertent attendance and I certainly wouldn't find a breach proven an inadvertent attendance.

48MS HOGAN:  Yes.

49HIS HONOUR:  I will alter that.  So the non-association will be not to attend within 100 metres of - I will word it this way, not to attend within 50 metres of Chris Rohan and not to attend within 100 metres of his residence or place of work.

50MS HOGAN:  If the court pleases.

51HIS HONOUR:  All right.  Mr Atkinson, Mr Neikah Atkinson, do you consent to being placed on a Community Corrections Order?  I will just wait till we unmute you so I can hear you, because I can't see you close enough there.  Do you consent to being on a Community Corrections Order?

52OFFENDER:  Yes, Your Honour.

53HIS HONOUR:  All right.  So what that means is, I am going to sign that order and it will be sent out to you for your signature.  But what all of that means is that you have served your time in prison but your sentence doesn't end today.  Part of your sentence is a Community Corrections Order which will run for the next two years.  That Community Corrections Order has some conditions in it.  Some of them are part of the punishment in relation to this matter, but they're really for the most part aimed at trying to help you and support you to reintegrate in the community and have your illness treated appropriately there.

54I include in that the community work.  I haven't really been looking to make this order a punitive order given what I have said about the relationship between your mental illness and the offending, but in my view some community work which will in all likelihood probably end up being about 25 hours community work because I am crediting 50 hours if you attend all your mental health assessment and treatment hours and all your alcohol and drug assessment treatment hours, 50 hours of those attendances can be counted against the community work.

55So a little bit of community work will be good for your rehabilitation.  You will also have to have a curfew at least for the next six weeks or so until I get you back before me and if you have settled in well and it's all looking good I will remove that curfew.  But the most important thing is, and I am really emphasising this because I have got reports that indicate there is still some uncertainty as to how much you really understand about your illness, so I am going to make it very clear to you that it is an order of me, it is an order of the court that you are not to go anywhere near Chris Rohan or anywhere near where he lives.  If you do you will be back here and you will run the risk of being in custody again.  So that is as simple as I can make it.

56What I expect is going to happen, Mr Atkinson, is so that order gets written up, the Community Corrections Order.  I will sign it and we'll send it to Corrections.  You will be released from custody but you are to go to Corrections within two days and they will ask you to sign it when you're there, but you have already consented to it to me and agreed to it so there will not be any difficulty there.   Is there anything else that I need to cover?

57MS HOGAN:  No, Your Honour.

58MR HARALAMBOUS:  No, Your Honour.

59HIS HONOUR:  All right.  So I will be seeing you at 9.30 am on 20 December, Mr Atkinson.  I will indicate now too, during the Corrections Order Assessment judicial monitoring wasn't recommended and I agree with that.  I am happy to go along with that.  I am really bringing you back in December just so I can have some confidence that it is working and that we can review that need for the curfew and if all of that falls into place from that point I will not be requiring judicial monitoring.  Yes, thank you, we will adjourn the court.

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