Director of Public Prosecutions v Atkinson

[2022] VCC 1251

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02580 / CR-21-02577

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT ATKINSON

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	4 July 2022
DATE OF SENTENCE:	4 August 2022
CASE MAY BE CITED AS:	DPP v Atkinson
MEDIUM NEUTRAL CITATION:	[2022] VCC 1251

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Armed robbery – Robbery – Causing injury intentionally – Commit indictable offence whilst on bail – Aboriginal offender –  Koori Court – Relevant criminal history – Bugmy principles enlivened – Verdins principles 1, 3 and 5 – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 ss 18, 75, 75A; Bail Act 1977 s 30B; Sentencing Act 1991 ss 6AAA, 18.

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; DPP v O’Neill (2015) 47 VR 484; The Queen v Steelie Morgan [2010] VSCA 14; Director of Public Prosecutions v Heyfron [2019] VSCA 130; Honeysett v The Queen (2018) 56 VR 375.

Sentence:                  Imprisonment for a period of 2 years and 9 months with a non parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E Maguire	The Office of Public Prosecutions
For the Accused	Mr D De Witt	Cahills Barristers & Solicitors

HIS HONOUR:

Introduction

1Brett Atkinson, you have pleaded guilty to:

(a) one charge of armed robbery, contrary to s 75A of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 25 years imprisonment (Charge 1);

(b) one charge of robbery, contrary to s 75 of the Crimes Act, which carries a maximum penalty of 15 years imprisonment (Charge 2); and

(c) one charge of causing injury intentionally, contrary to s 18 of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 3).

2You have also pleaded guilty to two related summary offences, being two charges of commit indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment (both recorded as ‘Summary Charge 5’).

3You have also admitted your Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5You were 27 years old at the time of the offending. You were unemployed with no fixed place of abode.

Charge 1

6On 23 January 2021 at 8:10 p.m., you and co-accused Russell Nelson arrived at the Dan Murphy’s store located at 1 Louisa Street, Coburg. You and Mr Nelson were wearing dark clothing and you were wearing sunglasses.

7The shift duty manager, Deon McGruddy, was suspicious as you both walked in and called 000 immediately.

8You and Mr Nelson then walked to the back of the store and started placing bottles of alcohol into large bags you had brought with you.

9Mr McGruddy was alerted to your presence and started making his way towards you. You and Mr Nelson were walking towards the front of the store.

10Mr McGruddy noticed you were concealing something in your hands. You produced a metal hammer from your jacket and held it above your head. You told McGruddy to ‘stay back’ before swinging it in a downwards motion.

11Mr McGruddy jumped backwards to avoid being hit. You then threatened another store attendant before you and Mr Nelson left the store. It is these facts that relate to Charge 1 – armed robbery.

12You were both met by a white vehicle which had stopped at a nearby intersection.

13A can of coca cola you were observed drinking at the scene was seized and returned a positive DNA result for you.

Charges 2 and 3

14At approximately 2:41 a.m. on 29 January 2021, you attended at the Coles Express Service Station located at 406 Lygon Street, Carlton.

15Abhi Rondla was working alone at the service station at the time. 

16You walked around the isles of the service station. You were carrying a black bag and appeared to be using one hand to try to locate something in your bag.

17A few minutes later, the victim, Peter Breen, walked into the service station. He walked around the isles and at one point, you stopped to talk to him.

18You walked up to the counter and attempted to pay - via tap and go - for a Kit Kat and a Cadbury block of chocolate worth approximately $10.50. However, the card was declined. The victim could hear you getting upset at the counter.

19You then walked over to the victim who was dispensing a coffee from a self-service machine. You stood very close to him.

20You said something to the victim. However, he could not understand you. He told you to ‘fuck off’.

21You picked up a pair of black handled aluminium tongs from the self-service area and held them to the back of the victim’s head aggressively. He pushed you away and the two of you grappled with each other before both exiting the store.

22Once outside, you and the victim continued to grapple with each other. He grabbed your black bag from you and he was wrestled to the ground. When on the ground, you tried to grab the victim’s wallet which was in his pocket. You wrestled with the victim before reclaiming your bag. In the course of the struggle you obtained the victim’s wallet. It is these facts that relate to Charge 2 – robbery.

23You got up and walked away, followed by the victim. You then grabbed a red handled ‘squeegee’ (used to wash car windscreens) from a bin positioned between two petrol pumps. You hit the victim in the head with the squeegee. The victim described it as like being hit with a steel bar.

24The victim was bleeding heavily and walked home. The victim’s housemate called the ambulance and he was taken to the emergency department.

25The victim sustained a 5cm laceration across the top of his head requiring stitches, bruising around his eye and bruising around his body and rib cage. It is these facts that relate to Charge 3 – intentionally cause injury.

26Police attended at the service station and seized a set of tongs and a window squeegee. They also obtained blood swabs from the scene.

27Police identified you from surrounding businesses CCTV as a person of interest. Police compiled a photo board and the victim selected two images, one of which was yours.

28On 11 March 2021, DNA obtained from the black tongs returned a positive match for you.

29You were arrested on 11 April 2021 at Lilydale train station for unrelated offending.

30You were on police bail at the time of both offences for the charge of contravening a family violence safety notice.

31You were not interviewed in relation to the offending on 29 January 2021. You were interviewed in relation to the armed robbery occurring on 23 January 2021 and denied that it was you.

Nature and gravity of the offending

32The three offences on the indictment reflect serious violent offending committed by you on two separate days, some six days apart.

33As to the first incident, it was submitted on your behalf that the offending was ‘unsophisticated’. However, it is clear that the offending involved a degree of planning, including the obtaining and concealing of the hammer in your jacket before you entered the store, and by arranging to be picked up by a vehicle outside following the offending. It was also submitted on your behalf that the offending can be distinguished from armed robberies where a knife or a firearm is used or where high value goods or money is taken, suggesting that in this instance the offending is in lesser category. While your offending did not involve theft of great value, in my view holding a hammer as a weapon above your head and swinging it down towards the victim in order to complete your theft of alcohol, is serious violent behaviour committed on a person who was simply doing their job, serving in a store. In my view your offending on this occasion remains a relatively serious example of this type of store armed robbery.

34As to Charges 2 and 3, the robbery followed by the infliction of injury, in my view is also serious violent offending committed in public. While I accept that the offending in this instance was spontaneous, it commenced as a result of you intimidating the victim. Nonetheless, after a struggle you took the victim’s wallet and in order to stop him pursuing you, you struck him to the head with the metal squeegee causing the injuries as described above.

35In relation to both incidents you were on bail and subject to a community correction order, adding to overall seriousness of your offending.

36No victim impact statements were obtained however the prosecution referred to comments of the victims taken from their statements. In relation to the armed robbery, the victim noted that he felt distressed for himself and his co-workers and in relation to the second incident, the victim stated that he believes that he was in the wrong place at the wrong time and feared that he could have lost his eye given the nature of the injury he sustained.

Personal circumstances

37You are now 28 years old. You are a Yorta Yorta and Barkindji man, born in Broken Hill to teenaged parents. Both of your parents struggled with substance dependency and frequently interacted with the criminal justice system. You were removed from their care at five months old and only met your father for the first time while on remand at the Melbourne Assessment Prison when you were 19 years old. You have one biological sister, two half-sisters and two half-brothers.

38As noted, you were removed from your parents’ care when you were five months old and were raised in Healesville by your maternal grandmother, Lennette Atkinson, and her partner, Raymond Wise, from infancy. You report witnessing domestic violence perpetrated against your grandmother by Mr Wise. Your grandmother was an alcoholic and Mr Wise, who was a father figure to you, died by suicide when you were 14 years old. You were profoundly affected by this, reporting that you felt ‘abandoned and alone’. Your mental health deteriorated and you made several suicide attempts during this period.  You were referred to a psychiatrist and had a very negative experience. This has caused you to be more apprehensive about engaging with counselling services as an adult.

39It was during this period of heightened risk that you were removed from your grandmother’s care by the Department of Health and Human Services and placed in residential care in Mooroolbark. You were deeply traumatised by this separation from your family and found the home unsafe. Soon after you arrived at the residential unit, you were introduced to drug use by other residents. You made numerous attempts to run away back to Healesville, only to be collected by the police and returned to residential care. During this period of your life you reconnected with your mother, who was living in Richmond and struggling with heroin addiction. You stayed in residential care until you turned 18 however by the time you left, you were severely drug dependent and suffering from untreated mental health issues. 

40In terms of your mental health history, you report receiving treatment from a very early age due to concerns regarding the impact upon you of your mother’s substance use and drinking during pregnancy. You first saw a psychologist at age nine for behavioural problems and were diagnosed with Attention Deficit Hyperactivity Disorder at age 12. You report diagnoses of anxiety, depression and schizophrenia over the years and were prescribed Mirtazapine, an antidepressant.

41Two reports authored by psychologist Ms Gina Cidoni, were tendered on the plea, dated 26 May 2020 and 27 June 2022 respectively.

42In the first report Ms Cidoni assessed your general intelligence at 79 which is borderline range and translated means that 92 per cent of your age related peers would do better. In the second report, Ms Cidoni refers back to the scores of the first report confirming that while you have scores in the borderline range you do not appear to have an intellectual disability.

43You have a long history of substance use. You started drinking at age 14 following the death of Raymond; your consumption escalated and continued to age 22. You started using cannabis at age 14 and fell into heroin use at age 16. You have also reported using ice and GHB. You have been prescribed Methadone in the past, although I note you reported to Ms Cidoni that you do not use your prescribed medications when in the community, including your antidepressant medication. Ms Cidoni also noted your history of suicide attempts from age 14; on a few of these occasions you were hospitalised.

44Ms Cidoni identifies your relapsing drug addiction as a key barrier in your rehabilitation, noting in particular your lack of ‘coping resources to deal with drug cravings and psychosocial stressors’, your association with negative peer groups and your aversion to seeking help. In Ms Cidoni’s second report she confirms that you present with symptoms of PTSD and anxiety and that you meet the diagnostic criteria for Generalized Anxiety Disorder.

45The current offending took place in the context of your relapse into drug use following your release from custody in July 2021 on a community correction order. Your relapse was fuelled by a sense of guilt relating to your grandmother, who suffered a stroke while you were in custody.  You ultimately overdosed on buprenorphine and heroin, requiring overnight hospitalisation. A few days later, you were injured after being attacked by two men at a motel; you lost a tooth and sustained a laceration to your arm, however you did not seek medical attention. Your mental health deteriorated significantly, you were unable to access Centrelink and were stealing to support your alcohol dependence.

46You have a relevant and extensive criminal history commencing in 2012. Your history includes armed robbery, robbery and injury charges. In 2015 you were sentenced in this court for armed robbery and in June 2020 you were sentenced to a term of imprisonment together with a community correction order which you were completing when you committed these offences.

47Since being remanded you have experienced a decrease in your levels of anxiety and paranoid ideation. You have recommenced Methadone and are also taking your antidepressant medication. You indicated to Ms Cidoni that you have ‘found comfort’ whilst in custody and are settled. Whilst you report some suicidal ideation, you have said you ‘won’t follow through’. In the past you have found peace in the creation of art, something you have resumed doing in custody. You stated to Ms Cidoni that you have plans to sell your Aboriginal art in the Geelong area upon your release and could also find some labouring work at the Old Geelong jail. Some examples of your artwork were tendered.

48Also tendered on the plea were a number of negative urine screens and certificates in relation to courses you have undertaken in custody. A letter tendered from Peter Steven, pastor at City on a Hill church in Geelong confirms that you will be supported in his church if you choose to make a fresh start in Geelong.

Sentencing considerations

49I first take into account your plea of guilty to these offences. This matter resolved at the committal mention stage and no witnesses have been cross-examined. Your plea of guilty has saved the court considerable time and expense. Further, your plea provides evidence of your acceptance of responsibility and willingness to facilitate the course of justice.

50The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169 at [39].

51I take into account the fact that you have experienced significant disadvantage in your life from a very young age and I accept that the principles articulated in Bugmy v The Queen should be given weight in the sentencing consideration.[2]  As noted in Bugmy, the effects of a deprived background as you have experienced, do not diminish over time and should be given full weight in the determination of an appropriate sentence.

[2] (2013) 249 CLR 571, [44].

52Mr De Witt, who appeared on your behalf, submitted that as a result of your psychological diagnosis, Verdins principles limbs 3 to 5 have application. Further, that limb 1 ought be given some weight as a result of your cognitive testing. Ms Maguire, who appeared on behalf of the Director of Public Prosecutions, submitted that while it is accepted that you have been diagnosed with psychological disorders, you have also been diagnosed with substance abuse disorders that were in play at the time of the offending. In the circumstances, Ms Maguire submitted that there is not an evidentiary basis to moderate general and specific deterrence in this instance. I accept that submission. In my view the evidence does not provide for a link to be made between your psychological conditions to have ‘materially diminished your capacity to reason appropriately at the time of the offending’.[3] However, your psychological issues which are undoubtedly linked to your deprived background, are matters I take into account in the general discretion.

[3] DPP v O’Neill (2015) 47 VR 484, [59].

53As to your general intelligence assessed as falling within the borderline percentile, again, while I take this into account in the general discretion, in my view the evidence does not allow for a finding that your impairment contributed to the offending in a way that makes you less blameworthy for your conduct.

54I take into account your participation in the Koori Court. The Court of Appeal has recognised that the 'Sentencing Conversation' in the Koori Court is designed to 'further the reformation of an Aboriginal offender'[4] and is rightly considered to be a mitigating factor.[5]  More recently, these principles have been reiterated in Director of Public Prosecutions v Heyfron.[6]After referring to the principles outlined in Honeysett v The Queen, Kaye JA stated:

In the present case, those factors apply, in fair measure, to the manner in which the respondent has participated in the Sentencing Conversation in the course of the plea hearing.  While the participation of an offender, in that process, is by no means a ticket to freedom, nevertheless, as a matter of sentencing principle, it is appropriate to take it into account for the reasons explained by the Court in Morgan and Honeysett.

[4] The Queen v Steelie Morgan [2010] VSCA 14 at page 11.

[5] Honeysett v The Queen (2018) 56 VR 375 at [54].

[6] [2019] VSCA 130.

55As to you prospects of rehabilitation, based on your history, they are relatively poor. However, having listened to you in the sentencing conversation, I am of the view that you are genuine in your desire to break the chain of drug use and offending. It appeared to me that despite your intellectual difficulties, you have developed appropriate insight in relation to the links between your offending and your drug use, and you are committed to change. You have plans to further develop your artwork and you are open to receiving support upon your release. Despite your long and relevant criminal history, in my view, if you maintain your commitment to improve your life in the way that you conveyed during the sentencing conversation, your prospects can be assessed positively.

56I take into account the ongoing impacts of the pandemic in relation to your time on remand and any further periods of imprisonment you will be required to serve. You have been subject to periods of isolation, lockdowns and reduced access to courses and education. It is only very recently that you have been able to receive in person visits.

57Mr De Witt submitted that you be considered for a community correction order in relation to Charges 2 and 3 with time served in relation to Charge 1. The submission included that as part of the community correction order you be assessed for a placement in the Wulgunggo Ngalu Learning Place (‘WNLP’). While you were assessed a suitable for a community correction order, WNLP found you unsuitable for the program as you are currently prescribed opiate replacement therapy. WNLP are unable to provide specialised clinical support or manage your therapy.

58While rehabilitation remains an important sentencing consideration, in all the circumstances, including the seriousness of the offending and your prior criminal history, general and specific deterrence, denunciation of your conduct and protection of the community remain prominent sentencing considerations.

59In my view, even if you were found to be suitable for the WNLP program, the suggested sentencing proposal is unable to meet the relevant sentencing considerations in all the circumstances. As such I accept the submission of the prosecution that a head sentence with a non parole period is the only available sentence. However, I am also of the view that a longer parole period would be of benefit to you as you continue your rehabilitation.

60Finally, pursuant to the principle of totality, I take into account that while you have some 316 days available to you as presentence detention pursuant to s 18 of the Sentencing Act 1991 (‘Sentencing Act’), you have been in custody since 11 April 2021, some 15 months. This is as a result of you being sentenced on another matter to a period of 164 days which is unable to be formally declared in relation to this offending.

Sentence

61Mr Atkinson, would you please stand.

62Brett Atkinson, on Charge 1, armed robbery, you are convicted and sentenced to 2 years and 3 months imprisonment.

63On Charge 2, robbery, you are convicted and sentenced to 12 months imprisonment.

64On charge 3, causing injury intentionally, you are convicted and sentenced to 8 months imprisonment.

65In relation to the two related summary charges of committing an indictable offence whilst on bail, you are convicted and sentenced to 14 days imprisonment on each charge.

66I direct that 6 months of the sentence on Charge 2 be served cumulatively on Charge 1 making for a total effective sentence of 2 years and 9 months. I further direct that you serve 18 months before becoming eligible for parole.

67Pursuant to s 18 of the Sentencing Act, I declare that 316 days be reckoned as the period of imprisonment already served under the sentence I have imposed.  That does not include today.

68Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 4 years with a non-parole period of 3 years.