Director of Public Prosecutions v Atkinson (a pseudonym)
[2022] VCC 1314
•16 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARTHUR ATKINSON (A PSEUDONYM) |
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JUDGE: | O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2022 | |
DATE OF SENTENCE: | 16 August 2022 | |
CASE MAY BE CITED AS: | DPP v Atkinson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1314 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence after guilty plea; Threat to inflict serious injury; Recklessly engage in conduct endangering persons; Delay; Offending predates offending for which previously sentenced; Efforts at rehabilitation; Lower sentences imposed to accommodate totality.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Atkinson (a pseudonym) [2021] VCC 762; DPP v Grabovac [1998] 1 VR 664
Sentence: 4 months’ imprisonment, fines of $700
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Guesdon | Office of Public Prosecutions |
| For the Accused | Mr J Rattray | Giorgianni Lawyers |
HIS HONOUR:
Introduction
1Arthur Atkinson[1], on 8 August 2022 you pleaded guilty to one charge that on 20 July 2019 you made a threat to inflict serious injury to Adam Tilley[2], Joshua McManus[3] and Lukas Silas[4] (Charge 1 – a rolled-up charge). You further pleaded guilty that on the same day you recklessly engaged in conduct that placed Adam Tilley, Joshua McManus and Lukas Silas in danger of serious injury (Charge 2 – a rolled-up charge).
[1]A pseudonym.
[2]A pseudonym.
[3]A pseudonym.
[4]A pseudonym.
2The maximum penalty for those offences is five years’ imprisonment on each charge.
3In addition, you pleaded guilty to the related summary offences of failing to store a longarm firearm, carrying a firearm whilst under the influence of alcohol, and failing to notify the Chief Commissioner of Police in writing of a change of address with respect to where firearms are normally stored.
Circumstances of offending
4By way of background, you were the holder of a Victorian category A and B longarm firearms licence. At the relevant time you had 14 firearms registered in your name which were required to be stored at your home at Nullaware.
5At around 7pm on Friday, 19 July 2019, you went to dinner with friends in Warrnambool. You drove there in a white Toyota Kluger which you parked nearby. You were celebrating finishing a TAFE course. You drank wine at dinner and afterwards went to the Warrnambool Hotel where you continued drinking. Sometime later you went to the Seanchai Hotel.
6At approximately 3.05am the following morning, 20 July 2019, you left the Seanchai and got into your vehicle and drove away. About 10 minutes later you returned and parked your car outside the Seanchai in Liebig Street. You got out and walked to the front doors of the hotel and a few minutes later you were seen driving away.
7At 3.30am you drove your vehicle into the car park behind the Seanchai and it is there that you came upon your victims, Adam Tilley, Joshua McManus and Lukas Silas. They were the occupants of a silver Toyota Corolla. Mr Tilley was driving, Mr Silas sat in the front passenger seat and Mr McManus was seated behind Mr Silas in the rear. They were driving around Warrnambool looking for a friend with whom they had lost contact.
8You pulled up next to the victim’s vehicle and rolled down the driver’s side window. Mr Tilley said to you, “What’s the problem? What’s going on? We’re looking for someone.” You replied, “I’m looking for someone too”. Mr Tilley repeated his question, “What’s the problem?” You then reached over and lifted a shotgun up with your left hand. You leaned forward, gripping the shotgun with your right hand, and pointed it at Mr Tilley through the open window of your vehicle. The shotgun was double-barrelled and approximately 60cm in length.
9The distance between the vehicles at this point was only a metre or so. Understandably, Mr Tilley and his friends were terrified. This conduct constitutes the charge of making a threat to inflict serious injury (Charge 1) and the summary offence of carrying a firearm whilst under the influence of alcohol.
10After the shotgun was produced, Mr Tilley immediately accelerated and drove off west along Timor Street. You also took off at speed in pursuit. Mr Tilley drove his vehicle as fast as he could in an attempt to get away from you – at times at a speed exceeding 90km/hr around the central streets of Warrnambool. Mr McManus called 000 as you pursued them.
11The victims passed the police station a number of times but were too scared to stop. After a third lap of the town, you stopped following and drove away. Your conduct at that time gives rise to the second charge on the indictment of engaging in conduct placing persons in danger of serious injury.
12The complainants immediately reported the matter to police, as did a security guard who had witnessed your behaviour in the car park.
13Later that afternoon, investigators located a Boito 12 gauge shotgun in a bedroom at your residential address. The presence of the gun at that address gives rise to the summary offence of failing to store a firearm correctly. They also located the remaining 13 firearms which were registered in your name at a property at Nullaware. They were located in a gun safe along with rifle and shotgun ammunition. All firearms and ammunition were seized and removed.
14As I have indicated, the required storage location on your firearms licence was in fact your previous address at Nullaware, and your failure to notify of the change of address as to where the firearms were normally stored gives rise to the last summary offence to which you have pleaded guilty.
15Police interviewed you about these allegations on 20 July 2019 and you essentially stated that you had no memory of the shotgun incident and that you have problems with your memory when you drink alcohol.
Victim impact
16One of the complainants, Mr Tilley, provided a victim impact statement which he did not want read aloud in court. Suffice to say that he understandably found the incident very frightening and unnerving, particularly because he and his friends had done nothing to justify or provoke your actions.
Nature and gravity of the offences
17Ms Guesdon, who appeared on behalf the Victorian Director of Public Prosecutions, submitted that this was a serious example of the two offences on the indictment given that it involved the pointing of a firearm at the victims whilst you were affected by alcohol at 3 in the morning, and the dangerous pursuit of the them through the streets of Warrnambool whilst they were in fear of being shot.
18In my view, these are indeed serious examples of these offences. The combination of drinking, driving and the brandishing of a firearm made for a highly volatile and dangerous situation that terrified your victims. There is no explanation as to why you behaved in this way and it simply cannot be tolerated.
Procedural history
19The procedural history of this matter is unfortunate.
20On 11 June 2021 I sentenced you to a total effective sentence of 3 years and 3 months imprisonment and fixed a non-parole period of 21 months for the offences of arson, contravention of a family violence safety notice, failing to stop a motor vehicle, and dangerous driving. Those offences were committed on 30 October 2019, about four months after the matters for which you now fall to be sentenced.[5]
[5] DPP v Atkinson(a pseudonym) [2021] VCC 762 (Atkinson No. 1).
21I was told that at the time of imposing that sentence, this matter was listed as a contested hearing in the Magistrates’ Court. It resolved and was to proceed as a plea, however I was informed that the Magistrate hearing the matter refused summary jurisdiction and a further delay ensued whilst the matter came into this court.
22In the meantime you became eligible for parole in around August 2021, but remained in custody serving the balance of your head sentence which would be due to expire in January 2023.
23It was suggested that you were not granted parole either because this matter remained to be resolved and/or because you are a New Zealand citizen and may be liable to deportation. I am not to know with any certainty why you continue to serve the balance of your sentence and were not given the opportunity for parole, however it is clear that you have been significantly disadvantaged by not having this matter dealt with at some earlier juncture. That is so because ordinarily the application of the principle of totality would afford you a measure of concurrency in the sentences imposed. That is now more difficult to achieve but I will return to that issue shortly.
Previous matter
24The matter for which you were sentenced in June 2021 involved you destroying yours and your former wife’s family home by fire. You met your wife in New Zealand in 1999 and you moved together to Australia in 2004. You were married in 2009 and there are 3 children of that relationship, now aged approximately 12, 8 and 4.
25In 2018 you purchased a house in Warrnambool with your wife and moved into those premises on 5 November 2018. In the time leading up to October 2019, it was said that you had experienced quite significant problems with depression and alcohol abuse which took their toll on your relationship with your wife and your children.
26On 17 October 2019 you separated from your wife at her request and went to live in a caravan on family friend’s property. After you sent some abusive text messages to your former wife, you were served with a family violence safety notice by police and you were also taken for assessment under the Mental Health Act 2014 (Vic).
27The discharge summary from the Swanston Centre, a mental health facility in Geelong, of 29 October 2019 described your principal diagnosis as “crisis presentation with multiple psychosocial stressors and co-morbid alcohol use disorder”. The predominant concern of those treating you appeared to be the fact that you suffered intrusive thoughts of harming yourself and others.
Turning to the offence of arson and the contravention of the Family Violence Safety Notice, on the afternoon of 30 October 2019 you left the Warrnambool Mental Health Unit and walked directly to your former wife’s home. CCTV footage from a camera situated at nearby premises shows that you arrived there at 3.24pm. [Your former wife] had left the house earlier that afternoon. The family pet cat and two pet birds were inside the house when she left.
Your conduct in attending the house constitutes Summary Charge 3: contravene Family Violence Safety Notice.
Once you arrived you went into the garage, started your motorcycle and parked it with the engine idling outside the house. It was left in that position for approximately five minutes, after which you left on the motorcycle.
Some 15 seconds or so after you left, a neighbour heard a loud bang and saw flames coming out of the front window of the house.
When your former wife returned from collecting the children from school, she saw smoke coming from the direction of their house. She was stopped by a neighbour who informed her that it was her house on fire.
The fire was extinguished at around 4.00pm. Police also attended and found your mobile phone in the mailbox. When your former wife returned to the house at around 9–9.30pm that evening, she saw that the garage door was open and that one of two petrol cans that had been on a table in the garage was missing.
Expert analysis suggested that the fire had been started in the lounge room of the house, probably using combustible material on the upholstered couch. Direct ignition by a match or cigarette lighter was the probable source of ignition.
The fire caused extensive damage to the inside of the house and the roof, spreading from the lounge room to the kitchen and master bedroom and causing roof and ceiling damage to the rest of the house. Heat and soot damage was evident in every other room of the house and throughout the roof space. The two family pet birds and pet cat were found deceased inside.[6]
[6]Ibid [12]–[19].
28After leaving the scene you also engaged in some dangerous driving to avoid police.
29Needless to say, your actions in respect of that matter had a profound effect on your former wife and your children.
30The reasons for sentence imposed on the last occasion set out your personal history in the following terms:
You were 47 years old at the time of this offending. You are now 48 years of age, having been born in October 1972.
You grew up in a small town on the North Island of New Zealand and had a relatively unstable upbringing. You told your assessing psychologist, Mr Warren Simmons, that you grew up in, 'Rough areas', that you moved house at least seven times and that you did not have a particularly happy childhood. Your parents separated when you were in your early 20s.
You have one sister. Your older brother passed away after a motorcycle accident in 1990. Your mother passed away in 2013 and your father has multiple health issues. Your sister is the only member of the family with whom you remain in contact.
You describe both of your parents as alcoholics and say you grew up around, 'A great deal of drinking'. Your father was violent and abusive, especially when he had been drinking.
Mr Simmons opined that your childhood left you vulnerable to substance abuse. You were introduced to alcohol at age 10 by your father and began drinking regularly at age 13. By your early 20s you were drinking to the point of intoxication most nights, a pattern which continued through your move to Australia in 2004, although you briefly stopped after the birth of your second child.
You have some limited but relevant previous criminal convictions that reflect your problems with alcohol. For example, you have been dealt with by a court twice for damaging property. In 2004 you damaged a pillow in a cell where you were placed after being arrested for being drunk and disorderly. In 2005 you were convicted of damaging property after breaking a window at a pub at which you had been drinking. In 2006 you were also convicted of dangerous driving and driving whilst intoxicated.
Although these are relevant matters, they were committed in quite different circumstances to the matters before me and occurred many years ago. In my view they are of limited relevance to this sentencing calculus. There was an additional matter of interfering with a motor car that occurred in 2016 and which arose out of dispute concerning a car parking spot. You were placed on an adjourned undertaking and again that has limited relevance.
Aside from your problems with alcohol, there has been some other substance abuse. You started using cannabis in your late teens and began using amphetamines in your mid-20s. The abuse continued when you moved to Australia, but you say you have not used drugs since Christmas of 2018.
At school you struggled academically but completed the equivalent of Year 11. Mr Simmons estimated your intellectual functioning to be in the low to average range. After leaving school you worked in the automotive industry until age 25. You subsequently held numerous jobs in mechanical, engineering and welding companies.
Your employment was affected by your substance use and flare-ups of what was thought to be a bipolar mood disorder, for which you were taking a mood stabilising drug. Mr Simmons notes that you did not appear to be on a stable level of medication at the present time.
You met your wife when you were 26 and she was 17. Your move to Australia in 2004 appears to have been motivated by the desire to make some positive changes in your life and get on top of your substance abuse.
You say that you achieved a greater measure of stability in your relationship once you had settled in Australia. You were able to maintain ongoing employment, including running your own business as a mobile diesel mechanic. You also completed a course which enabled you to teach at TAFE.
However, the births of your children presented challenges with which you did not cope well. You continued to drink heavily in the setting of periodic depressive episodes, which had a progressively corrosive impact on your relationship with your wife and children. Although there were periods of relative stability, eventually your family situation became untenable and culminated in your wife asking you to leave. This in turn precipitated the crisis that led to this offending.
Mr Simmons made some useful comments in his report about your state of mind at the time of this offending. At paragraphs 25 and 26 of his report he states:
'Mr Atkinson said that he is pleading guilty to the current charges, although he went on to reveal that he has poor recollection of what occurred, having some blank spots during the day. He recalled at the time that he felt like killing himself, explaining that he is not certain why he acted as he did as there was no reason to do it. He explained that he was still co-owner of the house and, although he understands that the relationship was under stress, he cannot fully comprehend what occurred. To that extent, Mr Atkinson has only limited understanding of his offending behaviour. It was noted that on the day of the offences, he had been given 15 milligrams of prescribed diazepam, although he had been given diazepam in the days leading to his offences and therefore, the levels in his system would have been higher as it takes 48 hours for half a dose to be excreted from the body.
'The information contained in the medical files is unclear as to a diagnosis at the time. The file from Barwon Health clearly identified Mr Atkinson as presenting with suicidal ideation in the context of a depressed mood. He was having thoughts of harming his wife which he found distressing. Three differential diagnoses were considered; however, as Mr Atkinson was transferred to South West Healthcare, a final diagnosis was not established. It would seem that South West Healthcare considered Mr Atkinson to be possibly suffering a situational crisis, although the offending occurred before a formal diagnosis was arrived at'. [7]
Mr Simmons also notes that you continue to be afflicted with significant symptoms of depression including low mood, weight loss, struggling with memory and concentration, slowness of thought and speech and an overall slowness of movement.
Despite your mental health difficulties and the restrictive prison regime imposed in response to the COVID-19 pandemic, you have managed to undertake and complete an impressive number of vocational and educational courses whilst you have been in prison. The letter from Caraniche of 23 February 2021 confirms that you have completed 27 sessions of individual counselling, which you commenced on 31 March 2020 after completing the 24-hour Drug Treatment for Men program. The report confirms that you are motivated to address your, 'Substance use and underlying issues'.
Certainly the number of vocational courses you have completed in areas such as information technology, engineering, cleaning and construction, suggests you are motivated to rebuild your life.[8]
[7] Report of Warren Simmons, 22 April 2021, [36].
[8]Atkinson No. 1 (n 1) [32]–[48].
31Since the time of those remarks in June 2021, you appear to have continued to apply yourself to such vocational and rehabilitative programs that have been open to you. Mr Rattray relied on large number of certificates and letters confirming that you have been engaging well. In particular, a letter from a clinician, Meredith Watts, of 8 June 2022 states that you had engaged in 76 individual counselling sessions directed to dealing with your substance abuse and offending behaviour. It also confirms your completion of a relationships program, an anger management program and various alcohol and drug programs during this year.
32Reliance was also placed on a document titled ‘Brief summary of the lead up to my offending 10th June 2022’, which you authored. In that document you state:
“My incarceration has left the community and my loved ones safe and also allowed me to get control of my life. I am a different person now and on release will be a valued member of the community as a result of the many gains I have made in prison.”
33I have also had regard to the letters of support provided by Ian Wallace, Jamie Mackieson, John Anderson, Malcolm Croft and Wendy and Bill Couch.
34In my view, the extent to which you have applied yourself to dealing with the problems that led to your offending has been impressive and augurs well for your rehabilitation.
35I will also take account of the matters in mitigation put on the last occasion and which generally continue to apply. They were:
· your plea of guilty;
· your impaired psychological state at the time of the commission of the offence;
· your reduced moral culpability for that offending;
· the restrictive COVID-19 prison regime and isolation to which you have been subject;
· your precarious mental health and the negative impact imprisonment appears to have had on your condition;
· the uncertainty created by the prospect that you may be deported upon release;
· that whilst you have a relevant criminal history it has limited utility for the purposes of this sentencing exercise;
· your employment history, which is encouraging;
· your motivation and the application you have shown in prison to seek treatment and rehabilitate yourself; and
· what I regarded as your reasonably good prospects for rehabilitation.
36Likewise I have regard to your plea of guilty in this matter and the utilitarian benefits that flow from having made that plea in the context of this Court managing a backlog of matters caused by the pandemic. There was, it appears, some prevarication as to the timing of your plea, but I have taken a practical approach such that overall your sentence will be substantially reduced because of your plea.
37Mr Rattray submitted that the proper application of the principle of totality[9] should result in the imposition of a sentence for these matters which does not extend your current term of imprisonment. If I was to accede to that submission, and accommodate totality as your counsel suggests, I would need to impose sentences of imprisonment that in my judgement would be lower than demanded by the nature and gravity of this offending. Ordinarily that is to be avoided.
[9] In essence, the principle guides sentencing judges when dealing with an offender for multiple offences to adjust the sentences in order to avoid an excessive aggregate. See Thomas, Principles Of Sentencing (2nd ed) at 56–57.
38In Grabovac[10] Ormistan JA considered that sentencing judges should generally avoid imposing artificially inadequate sentences when seeking to apply the principle of totality. Instead, it is preferable to pass appropriate individual sentences and then to make those sentences wholly or partially concurrent and in that way avoid an excessive aggregate.
[10] DPP v Grabovac [1998] 1 VR 664.
39That is so for three reasons. First, artificially low sentences may give rise to the impression that those offences were not being treated seriously. Second, if one or more of the sentences is set aside the remaining sentences will not be inappropriate. Third, artificially inadequate sentences may give rise to feelings of injustice among other offenders charged with similar conduct.[11]
[11] Ibid 681.
40However, his Honour’s comments were premised on the basis that the course endorsed was “preferable” and should be applied “where practicable”.[12]
[12] Ibid 680.
41In this case, the delay in the finalisation of this matter has rendered that method of application of totality impractical. Had your matter been dealt with it as it should have been, soon after the sentence imposed in June 2021, the sentences imposed would have resulted in a measure of cumulation of the head sentence and the setting of a new non-parole period. However, because you have nearly served the balance of your head sentence, such a sentence is impractical.
42It therefore follows that the only way to properly apply totality is to adopt the practice of which Ormistan JA disapproved and impose artificially low sentences, recognising in these reasons that that is the only way to avoid the imposition of an excessive aggregate of all sentences. That is regrettable for the very reasons articulated in Grabovac, but it is in my view the only way to rectify the problems caused by the more than three-year delay in the finalisation of this matter.
43Having regard to the seriousness of this offending, I would have imposed a total effective sentence in the order of 12 months, comprising 9 month sentences on each of the 2 charges on the indictment with a measure of cumulation in the order of 3 months. I would then have considered how much cumulation would have been necessary to achieve a just and appropriate aggregate head sentence and new non-parole period.
44However, because you have in the interim already served a term of imprisonment beyond the length of any new non-parole period that might otherwise have been set, I will impose lower sentences. The sentence imposed will be what is often described as a straight sentence; that is, there will be no non-parole period. In so doing, I recognise that the imposition of this sentence will have the effect of extinguishing any opportunity of being granted parole before most of the sentence you are currently undergoing has expired.
Sentence
45Taking all relevant matters into account you will be sentenced as follows.
(a) On Charge 1, threatening to inflict serious injury, you will be convicted and sentenced to a term of imprisonment of 4 months.
(b) On Charge 2, conduct endangering persons of serious injury, you will be convicted and sentenced to a term of imprisonment 4 months.
(c) On Related Summary Offence 11, failing to store a firearm correctly, you will be convicted and fined $500.
(d) On Related Summary Offence 14, carrying a firearm whilst under the influence of alcohol, having regard to the penalty imposed on charge one on the indictment, you will be convicted and discharged.
(e) On Related Summary Offence 15, failing to notify the Chief Commissioner of a change of address as to where firearms were stored, you will be convicted and fined $200.
46I should make clear that it is my sentencing intention that the sentences imposed on Charges 1 and 2 be served concurrently with each other and with the sentence which you are currently undergoing.
47Given that you are undergoing sentence, it is not possible to make a declaration under s 18 of the Sentencing Act 1991, however I have had regard to the fact that you have been in custody whilst awaiting the determination of this matter, albeit for a separate matter.
48I will declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty you would have been sentenced to a total effective sentence of 2 years and 6 months with a non-parole period of 18 months.
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