Director of Public Prosecutions v Atkinson (a pseudonym)
[2021] VCC 762
•11 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARTHUR ATKINSON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2021, 9 June 2021 | |
DATE OF SENTENCE: | 11 June 2021 | |
CASE MAY BE CITED AS: | DPP v Atkinson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 762 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Arson; Contravention of Family Violence Safety Notice; Failing to stop a motor vehicle; Dangerous driving; Arson aggravated by family violence context; Lack of insight into offending
Legislation Cited: Mental Health Act 2014 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins & Ors [2007] VSCA 102
Sentence: Total effective sentence of three years and three months' imprisonment with a non-parole period of 21 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Lawrence | Office of Public Prosecutions |
| For the Accused | Ms E. Rutherford | Giorgianni & Liang Lawyers |
HIS HONOUR:
Introduction
1Arthur Atkinson[1], you have pleaded guilty to one charge of arson, in that on 30 October 2019, you intentionally and without lawful excuse damaged yours and your former wife's family home by fire.
[1] A pseudonym.
2You have also pleaded guilty to the related summary offences of contravening a Family Violence Safety Notice, failing to stop a motor vehicle on police direction and driving at a speed and in a manner which was dangerous to the public.
3Ms Rutherford, who appeared on behalf of the Director of Public Prosecutions, tendered and read to the court a summary of prosecution opening for plea. Mr Lawrence, who appeared on your behalf, accepted that summary as accurate and that it could form the factual basis for sentence and what follows is largely based on that summary.
Background
4You met and commenced a relationship with a person I will refer to as Leslie Atkinson[2] in New Zealand in 1999. You moved together to Australia in 2004 and you were married in 2009. There are three children of that relationship, now aged 11, seven and three.
[2] A pseudonym.
5In 2018 you and your wife purchased a house in Warrnambool. You moved into those premises on 5 November 2018.
6Over some time leading up to October 2019 you apparently experienced quite significant problems with depression and alcohol abuse, which took their toll on your relationship with your wife and your children.
7On 17 October 2019 you separated from your wife at her request and went to live in a caravan on a family friend's property. On 25 October 2019 you sent a series of abusive text messages to Leslie Atkinson. In one of those messages, you said, 'Wanting to make you suffer has made me live in for a while and well I'm thinking pissed'. Another stated, 'You are going to pay for this you cunt', and yet another, 'I'm going to drive my ute through the front door if you don't answer.' Ms Atkinson did not respond but requested that police conduct a welfare check on you.
8Police attended where you were living and served you with a Family Violence Safety Notice which nominated Leslie Atkinson, as a protected person and prohibited you from attending at the address in Warrnambool. They also determined that you should be transported to the Warrnambool Mental Health Unit for assessment.
9It appears that at some stage you were declared an involuntary patient under the Mental Health Act 2014 (Vic). You were taken for assessment to the Swanston Centre, a mental health facility in Geelong, on 28 October 2019 and discharged back to the Warrnambool Mental Health Unit on 29 October 2019.
10The discharge summary from the Swanston Centre describes your principal diagnosis as, 'Crisis presentation with multiple psychosocial stressors and comorbid 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.
11Once you returned to Warrnambool Health you remained as a voluntary patient.
Charge 1: Arson and Summary Charge 3: contravene Family Violence Safety Notice
12Turning 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 3.24 pm. Leslie Atkinson had left the house earlier that afternoon. The family pet cat and two pet birds were inside the house when she left.
13Your conduct in attending the house constitutes Summary Charge 3: contravene Family Violence Safety Notice.
14Once 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 motor bike.
15Some 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.
16When 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.
17The 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.
18Expert 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.
19The 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. This conduct constitutes Charge 1: arson.
Summary Charges 4 and 5: Fail to stop vehicle on police direction and drive in a manner dangerous
20After leaving the house that afternoon, you were seen riding your motorbike on the Princes Highway in the direction of Warrnambool. At 4.22 pm two police officers travelling in a police car activated their police lights and siren and approached you whilst you were stationary in the right-hand turn lane. As the officers began to get out their vehicle, you looked over your left shoulder at them, quickly did a U-turn and accelerated onto the highway heading east. The speed limit on that part of the highway was 100 kilometres per hour.
21The police officers started to pursue you and, although their vehicle reached a speed 150 kilometres per hour, they were unable to reach you. The pursuit was terminated due to the dangerous speed at which you were riding.
22You continued driving and eventually reached the Great Ocean Road in Mepunga East. Due to roadworks the speed limit in stretches of that road was 40 kilometres per hour and a portable traffic light had been positioned to regulate traffic. You drove through this area in excess of a speed of 100 kilometres per hour and failed to stop at the red traffic light at the end of the roadworks. A truck driver approaching from the opposite end of the roadworks was forced to lock their brakes in order to avoid a collision with you. That conduct constitutes the summary charges of failing to stop when directed by police (Summary Charge 4) and driving in a manner dangerous (Summary Charge 5).
23At 5.13 pm you returned to the Warrnambool Mental Health Unit, where you told a registered nurse that you had been home and set fire to the place. Police were called and you were taken to Warrnambool police station for interview.
24During the course of that interview you made substantial admissions. Although you initially claimed that you may have accidentally started the fire with petrol that was used to fill your motorbike, you later stated that you, 'Must have gone around the front door and poured petrol in the house and lit it at the front door'. You also said that you, 'Took off', on your motorbike because you knew you had set your house on fire. You stated that you did not know why you lit the fire, you, 'Just snapped'. You said that you went back to the ward and owned up to what you had done. You said that you were angry at your wife for kicking you out of the house.
Victim impact
25Turning to the impact this offending has had on your former wife and children, a victim impact statement from Leslie Daniels was tendered and read aloud to the court by the prosecutor. It summarises the devastating impact your actions have had on your family.
26The statement begins in the following way:
'Imagine happily chatting with your children, driving home from your regular school pick-up.
'Imagine entering your street seeing a house engulfed in flames, and the thoughts that would go with that.
'Imagine being stopped by police and then informed that the house engulfed in flames is in fact your family home.
'Imagine being informed by the police that the perpetrator of this offence is in actual fact, your husband and father to your three children'.
27It goes on to describe the crippling financial burden that your family has endured. There was $235,000 worth of damage to the family home, which was uninsured. Your former wife was left with a mortgage of $170,000 to be paid on an uninhabitable home. She was forced to live in rental accommodation which she could not afford and has struggled a great deal to make ends meet and provide for your three children.
28Beyond the practical impact, there has been the emotional impact. The children continue to be affected by anxiety and insecurity. They miss their family pets, who were cherished. The victim impact statement concludes as follows:
'I am absolutely devastated my children have had to endure such a traumatic event. Feelings of helplessness are often overwhelming, but with supports and as time passes we are all getting stronger and I am determined to provide them a safe and joyful life'.
29You should understand that the impact your offending has had on your family is a very important consideration in the formulation of the sentence that must now be imposed upon you.
Procedural history
30It is now nearly 20 months since you committed these offences. Given that time frame it is helpful to set out the procedural history associated with this matter. For that purpose I will reproduce a table that formed part of the summary of prosecution opening for plea which documents the procedural steps in your proceeding.
| Date | Event |
| 30 October 2019 | Offending and arrest |
| 31 October 2019 | Filing Hearing |
| 24 January 2020 | Committal Mention – adjourned |
| 24 April 2020 | Committal Mention – adjourned |
| 19 June 2020 | Committal Mention – adjourned |
| 21 August 2020 | Committal Mention – Committal Hearing listed |
| 30 November 2020 | Committal Hearing – accused pleaded not guilty |
| 2 February 2021 | Initial Directions Hearing – adj for further DH |
| 18 February 2021 | Further Directions Hearing – matter adjourned for Sentence Indication |
| 12 April 2021 | Sentence Indication – adj for further materials |
| 31 May 2021 | Sentence Indication – adjourned part-heard Matter resolved on this day |
| 9 June 2021 | Plea Hearing |
31As that history demonstrates, there was a contested committal at which you pleaded not guilty to these charges. You ultimately indicated your intention to plead guilty after a sentence indication hearing on 31 May 2021. It is clearly not an early plea, but, as Mr Lawrence pointed out, it nevertheless has substantial utilitarian value. Moreover, your former wife was spared the ordeal of cross‑examination both at committal and at trial. The law requires that a sentence imposed in those circumstances should be reduced considerably and your sentence will be reduced accordingly.
Personal history
32You were 47 years old at the time of this offending. You are now 48 years of age, having been born in October 1972.
33You 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.
34You 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.
35You 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.
36Mr 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.
37You 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.
38Although 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.
39Aside 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.
40At 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.
41Your 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.
42You 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.
43You 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.
44However, 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.
45Mr 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'. [3]
[3] Report of Warren Simmons, 22 April 2021, para [36].
46Mr 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.
47Despite 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'.
48Certainly 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.
Defence submissions
49Mr Lawrence submitted that you committed these offences in a depressive state and under psychological distress. Whilst there may have been an element of animosity or anger directed at your former wife, you were plagued by suicidal thoughts and struggling emotionally. It was clear, he submitted, that what you did was not premeditated and that when you started this fire you must have been well aware that no one was in the house.
50Your counsel, I think quite correctly, did not suggest that there was a sufficient nexus between your impaired mental functioning and the commission of this offence to invoke the main principles to be gleaned from Verdins[4] case. Nonetheless, he suggested that your depressive state ought still lower your moral culpability to some extent. Relying upon Mr Simmons' report, he also submitted that your term of imprisonment has weighed more heavily on you because of your mental health problems and that indeed those problems have been exacerbated by imprisonment as your current symptoms suggest.
[4] R v Verdins & Ors [2007] VSCA 102.
51Mr Lawrence pointed out that you remain a New Zealand citizen and therefore liable to deportation once sentenced in relation to this matter. Whether you will be deported will be a matter for the Executive, taking into account the 17 years that you have spent in this country and the fact that your three children live here. From a sentencing perspective it was submitted that there is a real risk of deportation, which has weighed heavily upon you.
52It was also submitted that you have served your prison sentence in very difficult conditions. First, you have had no personal visits throughout your imprisonment. You have not seen or had any contact with your children. Second, virtually all of your imprisonment has been served subject to the COVID-19 prison regime.
53Any emphasis on specific deterrence should be mitigated by the age of your prior convictions and the limited relevance. Counsel adopted Mr Simmons' opinion that you have good prospects for rehabilitation given your previous long-term relationship, your history of employment, your abstinence from drug use for a significant period and the motivation you have shown to rehabilitate whilst you have been in custody.
54It was submitted that a sentence of imprisonment imposed in combination with a community correction order was the appropriate disposition.
Prosecution submissions
55In her submissions on behalf of the prosecution, Ms Rutherford emphasised that this offence occurred in the context of the contravention of a Family Violence Safety Notice. The family house was extensively damaged and the family pets were killed. Arson is by its very nature a serious offence punishable by a maximum term of 15 years' imprisonment, and all the more so in this instance, it was submitted, because of the family violence context.
56It was submitted that there can be little doubt that you wanted to cause harm to your former wife and that, as you said in your record of interview, you were angry at your wife. The fact was that significant harm had been caused, as the victim impact statement demonstrates. It was also argued that the driving matters were themselves serious in that they placed quite a number of members of the community in serious danger.
57It was necessary, Ms Rutherford submitted, to emphasise the sentencing purposes of general deterrence, denunciation and protection of the community in imposing a sentence. It was submitted that a sentence of imprisonment with a non-parole period should be imposed.
Consideration
58I accept Ms Rutherford's submissions to the effect that this arson is aggravated by its family violence context. Clearly enough, one of your purposes in setting fire to the family home was to spite your former wife and that conduct cannot be tolerated. The law must be enforced in such a way as to protect vulnerable family members from violence of this kind.
59In sentencing you I recognise that you must be separately punished for contravening the Family Violence Safety Notice. I also recognise that you are not to be punished for sending the abusive text messages on 25 October 2021. That conduct, I am told, is the subject of separate charges to be dealt with summarily. Their relevance for the purposes of this sentencing exercise is to provide context for what you did on 30 October 2021.
60That context points to a need to emphasise the sentencing purpose of protection of the community and, in particular, protection of your family from you. Likewise, that context requires emphasis on the sentencing purpose of general deterrence, that is to say that other men who might be aggrieved by the breakup of their relationship must understand that if they act in a way which seeks to cause harm to their former family they will be met with the full force of the law.
61Your prior convictions, as I have said, have limited relevance given their age and the very different circumstances in which they were committed. That is not to say, however, that specific deterrence is irrelevant in the formulation of your sentence, but I accept it is less influential.
62I do appreciate that you had become highly distressed such that you required psychiatric treatment and that it is likely that you were not thinking clearly. As such your moral culpability should be assessed as being lower than someone who was not so afflicted. Nevertheless, there can be no question that you committed this offence knowing that it was wrong and knowing that it would cause significant harm to your own family. Indeed, your former wife confirms that you did cause significant harm.
63In mitigation of your sentence I have taken into account among other matters:
· your plea of guilty;
· your impaired psychological state at the time of the commission of the offence;
· your reduced moral culpability for the 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 regard as your reasonably good prospects for rehabilitation.
64I am prepared to accept that you may be remorseful for this offending, but it is difficult on the material available to me to be affirmatively satisfied of that fact. I am persuaded, however, that one means that might be used to protect the community more effectively is to have you closely supervised once you have served an appropriate term of imprisonment. To that end I had you assessed for suitability to undertake a Community Correction Order, bearing in mind that s 44(1A) of the Sentencing Act 1991, which authorises a sentence of more than 12 months in combination with a community correction order in the case of arson.
65That assessment suggests you are suitable but at that you are at high risk of reoffending. It suggests also that you are unable to show insight into your offending and that there are no arrangements made for your release in the sense of accommodation and the like.
66I also received an assessment from the Mental Health Advice and Response Service, which describes your current mental state in the following terms:
'Mr Atkinson engaged well with review. He reports ongoing low mood and that whilst in prison he has engaged in self-harm on one occasion. He denied any current suicidal ideation. He reports persistent anxiety and emotional dysregulation. His thought stream was normal, but some hopeless themes were evident. His judgment and cognition were intact. He reports ongoing issues with sleep and low energy'.
67Having heard further submissions this morning, I have ultimately reached the view that the prosecution submission as to the imposition of a head sentence with a non-parole period, rather than a Community Correction Order, should be accepted. I am not satisfied that your immediate release on a Community Correction Order would best ensure the protection of the community. I continue, as I indicated to counsel this morning, to have some concerns as to your ongoing psychiatric condition.
68The sentence I will impose will seek to balance the various sentencing purposes I have referred to, including the need to encourage, to the extent that is possible, your rehabilitation. I will fix a non-parole period that renders you eligible for parole in the relatively near future, taking into account the sentence that you have already served. It will be for the Parole Board to determine the suitability of the arrangements made for your release back into the community, including where you will live and the nature of the supervision and rehabilitative programs that will be required.
Sentence
69Moving then to sentence, taking all relevant matters into account, you will be sentenced as follows.
70On Charge 1, arson, you will be convicted and sentenced to three years' imprisonment.
71On related Summary Charge 3, contravention of a Family Violence Safety Notice, you will be convicted and sentenced to three months' imprisonment.
72On related Summary Charge 4, failing to stop a motor vehicle in disregard of police direction, you will be convicted and sentenced to pay a fine of $600.
73On related Summary Charge 5, driving at a speed and in a manner that was dangerous to the public, you will be convicted and sentenced to three months' imprisonment.
74I will order that two months of the sentence imposed in respect of related Summary Charge 3 and one month of the sentence imposed in respect of related Summary Charge 5 be served cumulatively upon the sentence imposed on Charge 1, rendering a total effective sentence of three years and three months' imprisonment.
75I will fix a non-parole period of 21 months imprisonment.
76Pursuant to s 18 of the Sentencing Act 1991 I will declare that you have already served 590 days by way of presentence detention and I will cause that declaration to be noted in the records of the court.
77Similarly, I 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 term of imprisonment of four years and three months with a non-parole period of three years.
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