Director of Public Prosecutions v Atkinson
[2021] VCC 1507
•6 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01575
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY JAI ATKINSON |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2021 | |
DATE OF SENTENCE: | 6 October 2021 | |
CASE MAY BE CITED AS: | DPP v Atkinson | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1507 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – aggravated carjacking and dangerous driving while pursued by police – early plea of guilty – admissions in record of interview – Bugmy v The Queen (2013) CLR 571 considerations – reduced intellectual capacity – whether 'special reason' to justify displacing of mandatory non-parole period – no 'special reason'
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:Bugmy v The Queen (2013) CLR 571; R v Verdin (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169; R v McKee (2003) 138 A Crim R 88, 94
Sentence: Imprisonment for a period of four years with a non-parole period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Tao | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr T. Marsh | Victoria Legal Aid (Shepparton) |
HER HONOUR:
1Ricky Atkinson, you have pleaded guilty to an indictment containing a single charge of aggravated carjacking, which offence carries a maximum penalty of 25 years' imprisonment, and a single charge of dangerous driving whilst pursued by the police, and that offence carries a maximum penalty of three years' imprisonment.
2Aggravated carjacking is a category 1 offence under the Sentencing Act. In sentencing an offender for a category 1 offence, a court must make an order under division 2 of part 3 (other than a sentence of imprisonment imposed in addition to the making a community correction order in accordance with s44), unless the court finds under s10A of that Act that a special reason exists.[1]
[1]See s 5(2GA).
3Section 10A requires that term of imprisonment be imposed for an offence against s79A, which is the aggravated carjacking charge, and that a non-parole period of not less than three years be fixed under s11, unless the court finds under s10A that a special reason exists.
4
Ricky Atkinson, you admitted your prior criminal history, and I noted four previous court appearances that span a period between 15 April 2016 and
30 October 2019.
5In the past, you have been dealt with by a variety of dispositions, including adjourned undertakings without conviction, as well as combination sentence of imprisonment and imprisonment.
6On 30 October 2019, at the Shepparton Magistrates' Court, you were convicted and sentenced in respect to theft of a motor vehicle and drive whilst disqualified to a period of four months' imprisonment.
7On that occasion, you were also dealt with for contravening a community correction order. The order was cancelled, and you were re-sentenced in respect to the offending, the subject of the order, to an aggregate term of eight months' imprisonment, with a non-parole period of six months being fixed. You completed that sentence, and you were released in mid-2020.
8Of relevance to the sentencing exercise today is that you do have a relevant prior appearance for the charge of dangerous driving whilst being pursued by police, and that was dealt with at Shepparton Magistrates' Court on 15 April 2016. On that occasion, in respect of that charge and other driving offences, and a theft of a motor vehicle, charge, you were, without conviction, placed on an adjourned undertaking for a period of one year.
9The circumstances of your current offending are set out in the summary of prosecution opening that is dated 3 September 2021.[2]
[2]Exhibit 1.
10The offending occurred in the evening of 27 April 2021.
11You were then aged 27, you are now aged 28.
12I will now proceed to sentence you in accordance with the facts outlined by the prosecutor and contained within that opening.
13The offending commenced at approximately 8.15 pm. At that time, you were walking along the street with two others, Bailey Austin and Audrey Bamblett, in the vicinity of the Mooroopna Primary School.
14Previously, you were going to use a vehicle to drive back to Shepparton but that was no longer available. Bailey Austin was angry and did not want to walk back to Shepparton. It was he who suggested that you steal a vehicle, when he saw the victims in their vehicle at the Mooroopna Primary School.
15
You and Bailey Austin approached the victims, who are husband and wife,
Mr Mudiyanse and Mrs Mudiyanse. The couple had just completed their task as cleaners at the school and were attending to leave the premise together in their vehicle.
16Mr Mudiyanse drove his silver Kia Sonata towards the school gate, that was in a secure carpark at the school. He exited the vehicle to open the gate and, as he returned to his driver's seat, you walked through the school gate and approached his driver's side door.
17You opened the door and put a knife to his throat and you said to him, 'Get out you bloody bastard'. You then took the keys out of the ignition and grabbed Mr Mudiyanselage out of the car and hit him to the head twice, causing him to feel dizzy.
18Bailey Austin then grabbed his wife out of the passenger side of the vehicle and pushed her away. As he did so, he grabbed her handbag, containing her wallet, as well as her husband's wallet and their mobile phones.
19Audrey Bamblett remained standing at the front gate during this time. It is not alleged that she was a party to the aggravated carjacking.
20You and Austin then entered the car. You sat in the driver's seat, with Austin sitting next to you in the front passenger seat. You then exited the school grounds, stopping to collect Ms Bamblett, who then sat in the rear passenger seat. You the proceeded to drive the vehicle away out of the carpark (Charge 1, aggravated carjacking charge).
21The victims then ran across Park Street and knocked on some doors in an attempt to ask for help. Subsequently, they flagged down a police vehicle that was patrolling the area. Police observed the victims to be visibly distressed, standing in the middle of the road waving their arms for help. They spoke to the victims, who later attended the police station and provided statements.
22Approximately an hour or so later, you were seen driving the stolen vehicle at a fast rate of speed in Mooroopna. A marked police vehicle being driven by Sergeant Willis activated its lights and sirens. You failed to stop and therefore a police pursuit was initiated.
23Another police vehicle pursued your vehicle when it ran through a red light in the Mooroopna town centre. You continued to drive east on McLennan Street at a speed of approximately 80 kph in a 50 kph posted speed zone. You avoided traffic by mounting the grass median strip, cutting across multiple lanes of traffic, and into the opposite lanes of traffic. You continued to drive on Watt Road at speeds of approximately 100 kph in a 60 kph zone, intermittently crossing onto the wrong side of the road. When the vehicle came into Riverview Drive, you reached speeds of 150 kph in a 60 kph zone. Your vehicle crossed into oncoming traffic momentarily before crossing back onto the correct side, avoiding a collision (Charge 2, dangerous driving whilst pursued by police).
24Ultimately, the police terminated the pursuit due to the serious and dangerous manner of your driving.
25A short time later, police located the stolen vehicle abandoned in Davis Court, Shepparton. The vehicle was left abandoned with its headlights on.
26Ultimately, you were arrested at a nearby residence and taken to the Shepparton police station, where a formal record of interview was conducted on 28 April 2021.
27During your interview, you told police the context to the offending was that you had borrowed a friend's car, but she had taken it back. You had begun to walk back to Shepparton with Austin and Bamblett. Austin was mad and said he did not want to walk. When you were walking towards the primary school, Austin saw the couple getting into the car and said that you needed wheels and looked at you as if to go to the other side of the car. You admitted grabbing the driver out of the car and pulling him out of the car and having a knife. You could not remember what the knife looked like. You said that Austin had given you the knife. You described your driving whilst being pursued by police as being 'horrendous'. You admitted that you nearly lost control a few times.
28Bailey Austin was interviewed and made a 'no comment' record of interview. His matter is proceeding in the committal mention stream. It is currently unresolved and listed for a contested committal mention on 12 January 2022.
29Audrey Bamblett was interviewed and made full and frank admissions. She was aware the vehicle had been stolen but was not party to the aggravated carjacking. Her matter has resolved to a charge of theft of a motor vehicle and is listed as part of a consolidated plea hearing in the Shepparton Magistrates' Court with other unrelated matters on 26 November 2021.
30Mr Atkinson, I consider that these are serious examples of both offences. Whilst I accept that you did not conceive the original plan to steal the car, you nonetheless actively and enthusiastically participated in the aggravated carjacking by grabbing Mr Mudiyanse out of the car and placing the knife against the elderly victim's throat before removing his keys from the car's ignition, and thereafter you gratuitously struck him twice to the head. Meanwhile, Bailey Austin physically removed the elderly victim's wife out of the car and stole her handbag containing their wallets and the mobile phones. In relation to the aggravated carjacking, I consider that your role is equal to that of Mr Bailey Austin.
31Through your actions, you placed both victims in great fear. Your behaviour was aggressive, demanding, and threatening.
32Both of the victims were vulnerable. They were elderly, alone at night, seeking to leave their place of employment. There were no other members of the public present who could have come to their aid when you effected the aggravated carjacking.
33No victim impact statements have been filed. Both victims were asked and declined to make such a statement.
34It is, however, having regard to common sense and also having read the depositional statements evident, that both Mr Mudiyanse was placed in great fear because of your actions and thought that he would die. In his statement he said, 'At the time the male had the knife to my neck I was so scared that I thought the male would murder me, and I felt scared for my wife, and helpless'. And that is in his statement taken 27 April 2021.
35In his wife's statement, she that she was very scared, scared for her life and for that of her husband. She saw you holding the knife to her husband's throat. She described the other male who approached their vehicle as being very angry, yelling very loud and very aggressive. She remains very scared, particularly whenever it is dark. And working is very scary for her now and she does not feel safe.
36Rick Atkinson, your behaviour on this occasion must be condemned. Deterrence, denunciation, and community protection are all every important sentencing considerations.
37Mr Marsh appropriately conceded, on your behalf, that it would have been quite a traumatic and terrifying experience for both victims who had no expectation about what was about to unfold.
38In assessing the gravity of the offending, your counsel, Mr Marsh, submitted that the nature of, and the way the weapon was used places the seriousness of the offending at the lower end of the scale of seriousness, though not at the least serious category of carjacking.
39Given the circumstances, as I have described, I find that the offending is serious, and I do not consider that it is at the lower end of the scale of seriousness.
40I also consider that the driving charge is a serious example of this sort of offence. You failed to stop driving, notwithstanding that you were aware a police pursuit had been initiated. I have already described your driving. It was erratic and dangerous driving, travelling through a red light intersection, driving in a built up zone at speeds well in excess of the posted speed zones, mounting grass median strips, crossing across multiple lanes of traffic into opposite lanes of traffic, and intermittently crossing onto the wrong side of the road, and crossing back before avoiding a collision. The pursuit had to be terminated because of the serious and dangerous manner of your driving.
41You conceded in your record of interview that your driving was 'horrendous' during the chase, and that is an apt description.
42Mr Marsh stated that the stolen vehicle was a former driver instructor's car with dual controls, including a brake pedal being replicated on the passenger side of the vehicle, where your co-accused sat during the chase. You believe that Austin may have unwittingly contributed to the erratic driving of the car during the chase by inadvertently braking. That does not appear to be consistent with the factual basis that I have earlier described. I consider that you are responsible for the driving on that occasion.
43It is only by good fortune that the pursuit ceased, and you were able to stop driving and abscond without posing any risk of injury to yourself, the other members of your group who were present in the car at the time, and any other person who was driving in the vicinity.
44At no stage in the past have you held a licence to drive. I find that your diving on this occasion was dangerous and must be condemned.
45I have had regard to your personal history and circumstances.
46Ms Alison Mynard, the clinical psychologist, in her report of 29 August 2021, sets out in comprehensive detail information about your background, education, medical history and personal circumstances, as well as your history of substance abuse.
47You are Aboriginal and identify as Yorta Yorta through your mother's heritage.
48You have strong connections to the Mooroopna and Shepparton area.
49You were born in Kyabram. You are the eldest of five children and have two younger sisters and two younger brothers.
50You have had very little contact with your father growing up and, in the past, there was only some limited access when you were a young child. You state frankly that you do not know your father.
51In the past your mother re-partnered, and you lived with her, your stepfather, and your siblings until you were aged 11. During that time, you witnessed domestic violence between your mother and stepfather. Your mother has a significant alcohol and drug addiction problem. She currently lives alone and you have a very difficult relationship.
52When you were young, your mother exhibited violence towards you and you would often abscond from home to escape her violence and alcoholism.
53At around age 11 you moved in to live with your maternal grandmother where you remained until you were 16.
54But that relationship fell down because of your heavy illicit drug use, including ecstasy and ice.
55Since the age of 16 you have lived independently, often homeless with no fixed address. Effectively, you have been living effectively on the streets in Mooroopna and Shepparton since that time.
56Your youngest siblings currently live together with your 22-year-old sister.
57You have two children born from a relationship, two boys aged five and four, respectively. You were in a relationship with their mother for some eight years. Unfortunately, that relationship was impacted by both drug use and violence, and the relationship broke down. Some of your past criminal convictions relate to charges relating to your former intimate partner.
58The two children have been removed from your former partner's care and are placed with a maternal uncle and aunt.
59There are currently the subject of Children's Court proceedings in relation to a permanent care order.
60You had not effectively had any contact with your two sons in the two-year period leading up to this incident.
61You have indicated that your strong desire is to regularise your relationship with your sons, to rebuild your life such that you, upon your eventual release, want to pursue full-time employment so that you can be a more positive role model in your sons' lives.
62You have a long and concerning history of substance abuse, commencing smoking cannabis when you were aged nine. By 12 you were using daily and, in addition, you were drinking alcohol, bingeing on weekends. Around the age of 14 you were using ecstasy, usually whilst drinking, and by mid-adolescence you were using methamphetamines.
63The context to the offending was that you had been using GHB for several weeks, as well as ice. You told Ms Maynard that you did not think at all of the consequences of your actions and just saw a stupid opportunity. You told her that you were going to Shepparton and needed a way to get there. You had been driving your girlfriend's car, but that car wasn't available and you had no other way of getting back to Shepparton.
64Whilst this context provides an explanation for your behaviour, it in no way excuses your behaviour.
65In your favour, you indicated to Ms Maynard that you felt terrible for the victims. You acknowledged that they were just cleaning the school, and then they were exposed to the offending. You recognised that your actions would have affected them badly, and you told her that you felt very distressed thinking about the situation. You acknowledged to Ms Maynard that when you were using the drug ice, you do stupid things. Your comments reveal a degree of insight and victim empathy and an understanding of how drugs impact upon your behaviour.
66Overall, I accept that you do have good insight into your offending behaviour and you have expressed a high level of remorse for your actions, and I have taken that into account in your favour.
67You are currently situated in Fulham Prison at Sale, and you have been there since July 2021. You are working in a responsible role as a billet in your unit, and you have settled well in that institution.
68Ms Maynard undertook her assessments on 20 and 28 August 2021 via video link. She confirmed you had basic educational skills and that you are not very good at reading and writing, and you left school at Year 8 level. You attempted a TAFE course in conservation and land management but were unable to complete the course. You have engaged in very little formal employment since you left school. You enjoyed one role, undertaking labouring, assisting Dallas Terlich, doing fencing and spraying weeds.
69It is evident that you had not been formally tested before, and you have not had any medical treatment in the past in respect to mental health or physical health.
70Ms Maynard concluded, following her assessment and testing that you are estimated to have an intellectually impaired range of functioning classified as a mild intellectual disability. She has overall assessed your IQ score as being under 70.
71She said, in summary, that you have global deficits in your intellectual functioning, as well as executive functioning skills, that impact upon your daily life significantly in your comprehension, memory, relationships, impulsivity, decision-making and communication skills.
72Her opinion was that you have found yourself in a downward spiral since your mid-teens, with difficulties with your family of origin, being exposed to traumatic experiences when growing up. It appears that you suffered from ADHD from a young age and that disrupted your education experiences and your ability to focus and take information in. Your situation has been compounded by your homelessness and your heavy use of illicit substances. At the time of your offending, you were affected by GHB and methamphetamines, which impaired your decision-making.
73She concluded that in the offending, your use of drugs would have been prominent in terms of impacting upon your behaviour. She also noted that you presented with ADHD and impaired cognitive functioning as well, and those conditions are lifelong and permanent and impact on you daily. Those symptoms would have been operable at the time you offended, and your ADHD impulsivity and your mild intellectual disability presentation would have impacted upon your lack of problem-solving skills and impaired ability to monitor your own behaviour, including consequential thinking skills.
74She recommends that you would benefit from access to NDIS support, housing support, and a support worker to assist you daily living, psychological support, and case management. She recommends attending a regular general practitioner to assist managing your mental health and any medical issues that may arise. She recommended a Disability Justice worker.
75In formulating the appropriate sentence, I have taken into consideration her expressed opinion, and recommendations.
76I have also had regard to the mitigating factors highlighted by Mr Marsh.
77I accept you entered a plea of guilty at the earliest stage at committal mention. You are entitled to a demonstrable discount on sentence, particularly given the utility accorded to pleas of guilty in the context of the COVID-19 pandemic.
78I also have had regard to the fact that you were fully cooperative with the police at the time of your arrest and made full admissions in the record of interview.
79I am satisfied that the plea of guilty is evidence of genuine remorse, and that is reflected in the fulsome answers you gave in your record of interview, as well as in your discussions with Ms Maynard. The plea demonstrates a willingness to facilitate justice, and an acceptance of responsibility, and therefore the sentence will be discounted accordingly.
80I consider, notwithstanding the diagnosis of mild intellectual disability, that you are somebody who does have the ability to reflect and have insight into their behaviour and its impact, and that you were, at the time of the offending, aware of what is right and what is wrong, and that was understood at the time you undertook the aggravated carjacking and also the driving in relation to the charged offence relating to the police pursuit.
81You admitted in the record of interview that you thought it was really disgusting regarding everything that had happened that night.[3]
[3]Q&A 321 and 325.
82I consider having regard to the history that the Bugmy[4] principles apply. You suffered profound dysfunction, disadvantage, and abuse during your formative years, and that is relevant, and I have taken that into account in assessing your moral culpability. Those impacts do not diminish with the passage of time and further offending. Although, on the other hand, the importance of community protection must also be acknowledged.
[4]Bugmy v The Queen (2013) 249 CLR 571 (“Bugmy”).
83I am also prepared to make a finding in relation to the Verdins'[5] principles to moderate your moral culpability. The offending was fuelled by the impact of you being affected by GHB and methamphetamines that reduced your reasoning skills and reduced your capacity for clear thinking. The genesis of your addiction to drugs started at an early age, and I am mindful of the authorities allowing for some mitigation of moral culpability where drug addiction commences at an early age and relates to mental health difficulties and criminal offending.[6]
[5]R v Verdins & Ors (2007) 15 VR 269 (“Verdins”).
[6] R v McKee (2003) 138 A Crim R 88, 94 [21] (Buchanan JA).
84I accept Mr Marsh's submissions in relation to the applicability of the Bugmy principles and Verdins[7] limbs 1, 3, and 4. I have therefore reduced your moral culpability and moderated the need for general and specific deterrence.
[7]R v Verdins & Ors (2007) 15 VR 269 (“Verdins”).
85I do consider that there is real reason for some hope for you in terms of your rehabilitation prospects. You have shown some capacity to reflect, and you do have insight into your offending behaviour and its effect, and you have shown victim empathy; you are remorseful, and you are committed to change for the future. You have indicated your willingness to engage with organisations such as Dardi Munwurro, involving their men's behaviour change behaviour program and also other services to support you in the community.
86You have long-term goals to seek employment and you want to be able to become a better role model for your two young sons.
87You continue to enjoy strong family support. Whilst in prison you have been able to maintain contact with both your sister and maternal grandmother, both of whom remain supportive of you.
88All those features combine to mean that you do have potential to change and reform, but you do need to accept help and assistance of a kind that was suggested in Ms Maynard's report. I recommend that prior to your release from prison, that you do prepare a program so that you can be culturally supported upon your release by such programs as Dardi Munwarro, and any other programs offered by Rumbalara Health Services to address your underlying drug addiction and other complex needs.
89I have had regard to the difficult circumstances of your confinement and the fact you have been held in custody on remand during the COVID-19 pandemic with associated restrictions on personal visits and limitations in terms of program delivery. It has been accepted by courts that the pandemic has increased anxiety for prisoners and their families.[8]
[8] Worboyes v The Queen [2021] VSCA 169 (“Worboyes”).
90Given the current situation, it is clear that the pandemic will be continuing to impact correctional facilities for some time to come, and I have taken that into account.
91Mr Marsh sought to rely on Ms Maynard's expressed opinion to submit that the court ought to find that a 'special reason' existed, namely that your impaired mental functioning applied such as to exempt you from the mandatory application of s10AD of the Sentencing Act.
92He submitted the diagnosis of mild intellectual disability was present at the time of the commission of the offence and contributed in a causal sense to the offending.
93Mr Teo, the prosecutor, submitted it is accepted that you that you have an impaired mental functioning, as defined by the Act, namely mild intellectual disability. Further, it is accepted that the impaired mental functioning was causally linked to the commission of the offence; however, he submitted that it cannot be said that that impaired functioning substantially and materially reduced your moral culpability. I accept that submission.
94I have had regard to Ms Maynard's expressed opinion, and I accept that you do have a mild intellectual disability that was operable at the time of the commission of the offence that is causally linked to the commission of the offence.
95
However, on your own admission, you had been using methamphetamines and GHB prior to the offending and you were affected by those drugs at the time.
Ms Maynard describes that as being prominent in terms of the offending and the impact upon your behaviour.
96Whilst I consider your mild intellectual disability and ADHD explains the offending to some extent, in that you do act impulsively and lack the ability to problem solve and use consequential skills, I consider that your behaviour on this occasion was caused substantially by self-induced intoxication, and therefore I cannot find that there are special reasons as required by s10A(2)(c) of Sentencing Act.
97I am not satisfied that your impaired mental functioning substantially materially reduces your culpability and special reasons are not established.
98Therefore, the mandatory application of s10AD in respect to the aggravated carjacking applies.
99In formulating the appropriate sentence, I must impose just punishment. I have had regard to the gravity of the offending and the sentencing principles to which I have earlier referred and the totality principle.
100I will now announce my formal court orders:
101Charge 1, aggravated carjacking, you will be convicted and sentenced to three years and 6 months' imprisonment.
102Charge 2, dangerous driving while pursued by police, you will be convicted and sentenced to 12 months' imprisonment.
103I direct that six months of the sentence imposed on Charge 2 be cumulative upon Charge 1, making a total effective sentence of four years' imprisonment. I fix a non-parole period of three years and three months.
104I declare that you have served 162 days of pre-sentence detention.
105Pursuant to section 89(3) of the Sentencing Act, I cancel any licences that you may hold and disqualify you from obtaining a licence for a period of 12 months in relation to Charges 1 and 2.
106I make a declaration pursuant to section 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a term of imprisonment of six years to serve with four years and 6 months non-parole period.
107That concludes my sentencing remarks.
108In summary, Ricky Atkinson, the sentence in total is four years' imprisonment and a non-parole period fixed of three years and three months and the time that you have already served in custody of 162 days is already reckoned as being served so I hope that is clear to you, Mr Atkinson.
109The sentencing remarks are necessarily long because of the statutory requirements that I must go through. That concludes the sentence.
110Mr Marsh, if possible did you want to have a quick talk with Mr Atkinson before we discontinue the link?
111MR MARSH: I would be grateful for that, Your Honour. I just want to confirm that he understands the sentence.
112HER HONOUR: Yes, I understand completely. We will now formally adjourn the court, I ask that everyone else apart from Mr Marsh and Mr Atkinson leave the link.
113COUNSEL: If it please the court.
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