Director of Public Prosecutions v Atwell

[2021] VCC 1399

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. 21-01214

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN ANTHONY ATWELL

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	13 September 2021
DATE OF SENTENCE:	22 September 2021
CASE MAY BE CITED AS:	DPP v Atwell
MEDIUM NEUTRAL CITATION:	[2021] VCC 1399

REASONS FOR SENTENCE
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Subject:Criminal law

Catchwords:   Home invasion; Theft of firearms; Theft

Legislation Cited:  Crimes Act 1958

Cases Cited:Hogarth v The Queen [2012] VSCA 302; DPP v Taleb

[2019] VCC 2206; DPP v Davis [2018] VCC 116

Sentence:  3 years and 1 month with 1 year  and 9 month minimum

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J.P. Kretzenbacher	Director of Public Prosecutions
For the Accused	Mr Timms	Cahills

HIS HONOUR:

1On 13 September 2021 you, Nathan Anthony Atwell, pleaded guilty to an indictment containing one charge of home invasion, one charge of theft of a firearm and a further charge of theft.

2The maximum penalties for your offending are as follows:

· Home invasion contrary to s77A of the Crimes Act 1958 – 25 years’ imprisonment;

· Theft of a firearm contrary to s77AA of the Crimes Act 1958 – 15 years’ imprisonment;

· Theft contrary to s74 of the Crimes Act 1958 – 10 years’ imprisonment.

· The offence of home invasion is a Category 2 offence. Section 5(2H) of the Sentencing Act 1991 sets out that a court must impose a custodial sentence (other than a sentence of imprisonment combined with a community corrections order) unless the circumstances in set out in s5(2H)(a) to (e) are found to exist.

3Mr Timms, who appeared on your behalf, did not argue that these exceptions were applicable in your case and indeed I find that to be a sensible concession.

4The details of your offending are set out in the summary of prosecution opening dated 16 August 2021, which was tendered in evidence during your plea hearing.[1]  In short, you and a co-offender were staying at a motel in Horsham when others attending that motel room informed you that a person, who was to be your intended victim, was a sex offender or a paedophile and further that he had firearms stored at his home.  You and your co-accused formulated a  plan to attend your intended victim’s home and to assault him.

[1]Exhibit A

5In the late afternoon of 19 February 2021 you and your co-offender attended at your intended victim’s home.  You were armed with a fixed blade machete-style knife that belonged to your co-offender.  He was armed with a steel bar.

6You used a subterfuge to gain entry to the premises with the intent to assault your intended victim.  These facts constitute the charge of home invasion.  The intended victim’s son and a female friend were present, but your intended victim was not.  When you were asked by your intended victim’s son to leave the home and wait for his father outside, you pushed passed this person and picked up a case containing a compound bow and arrows and a hunting knife set valued at approximately $1,000.  You did not have permission to take these goods.  Those facts constitute the charge of theft.

7You then entered a bedroom at the premises where your female victim was laying on the bed whilst you were carrying the machete.  Your co-accused gained access to a gun safe inside a wardrobe and you were handed a lever action .22 calibre rifle.  Neither you nor your co-accused had permission to take this firearm.  The gun safe was then locked by the son of your intended victim.  Those are the circumstances of the charge of theft of a firearm.

8You shortly afterwards left the premises and one of your victims telephoned the police.  You then drove to an associate's home elsewhere in Horsham and returned to the motel in Horsham.  A female companion, who was aware of your offending, took the vehicle in which you were travelling to a car wash in order to have it cleaned of evidence.

9You were arrested at the motel at approximately 11.50 pm, but were intoxicated and not fit for interview.  Your co-accused surrendered himself to police on the following day.

10When you were interviewed by police you admitted your offending, maintaining that it was your intention to assault your intended victim, but you expressed regret at the impact your actions had caused on the intended victim’s son and his female friend who were at the premises at the time of your home invasion.  It is not alleged against you that you had taken the firearm for nefarious or illegal purposes, indeed it was located by police hidden off a rural road on the outskirts of Horsham.  The compound bow, arrows and knife set have not been recovered.

11

You have also admitted prior convictions as set out in the criminal record dated

30 August 2021 which was tendered in evidence before me.[2]  This records extensive offending for over 20 years, and contains relevant prior convictions involving some drug offences, theft, criminal damage, burglary and possession of a controlled weapon.  More recent prior convictions relate to the contravention of personal safety intervention orders and further offending relating to the use of illicit drugs.

[2]Exhibit B

Your personal circumstances

12You are presently aged 39 years, having been born in August 1982.  You were 38 at the time of your offending.

13Mr Timms, who appeared on your behalf, set out a very thorough and relevant outline of your difficult upbringing and ongoing difficulties with personal relationships and maintaining positive connections within the community.  His outline of submissions, which included a psychological report that had been prepared by Ms Cidoni on 26 June 2021, were tendered on your behalf.[3]

[3]Exhibit 1

14Ms Cidoni’s assessment notes as follows:

“The assessment also indicated a complex psychological profile linked to his traumatic and unstable history.  He presents with anti-social and borderline personality, marked with impulsivity, dysregulation, unexpected and impulsive angry outbursts.”

15She also notes that your psychological disturbance may make prison or detention an extremely difficult experience for you.

16

I accept the submission put by Mr Timms on your behalf that you have pleaded guilty at an early stage and you are entitled to the benefit of that early plea in mitigation of the sentence to be imposed upon you.  Nevertheless as urged by

Ms Kretzenbacher on behalf of the prosecution, your principal offending being the home invasion is in the nature of a vigilante action which cannot be condoned by the courts.  Appellate courts have consistently condemned the actions of citizens taking the law into their own hands.  Fortunately for you, and for your intended victim, he was not present at the time of your offending.  Regardless of your beliefs or motives, the courts cannot condone vigilante action of this type and the penalties imposed must reflect denunciation of your actions.

17It is clear from the matters raised by Mr Timms, and from the report of Ms Cidoni, that illicit drug use has been strongly linked to your offending on previous occasions.  Nevertheless at the time of this offending you and your co-accused went armed to your intended victim’s premises, intending to carry out an assault which you believed was justified.  The law cannot condone these actions.  The effect on the innocent victims of your offending in terms of the emotional damage caused, must be regarded as very serious.

18I have taken into account recent County Court cases to which I have been referred including DPP v Taleb[4] and DPP v Davis,[5] and I have also noted the leading judgment of the Court of Appeal in Hogarth v The Queen[6].  The Court of Appeal was critical of sentencing practises for home invasion or “confrontational” aggravated burglary at the time of that judgment:

“The clustering of sentences around a median of two years show how far current sentencing has departed from the parameters set by the maximum penalty of 25 years.”  Hogarth at [58]

[4][2019] VCC 2206

[5][2018] VCC 1166

[6][2012] VSCA 302, especially at [56] to [63]

19I regard your prospects of rehabilitation as somewhat guarded.  Although I am encouraged to some extent by the submissions made on your behalf by Mr Timms, ultimately, Mr Atwell, your own efforts directed towards seeking assistance for your behavioural problems and the avoidance of relapsing into further illicit drug use must be regarded as highly relevant in terms of your rehabilitation.

20The offence of theft of a firearm to which you have pleaded guilty carries a maximum sentence of 15 years' imprisonment.  Ordinarily such offending would attract in your case a significant period of imprisonment but I do accept in the circumstances of your offending that the theft of the firearm was not directed towards the illegal or nefarious use of the firearm, and indeed I do note your co‑operation in informing the police as to where it had been disposed of.  I regard this offence as serious offending, but your offending is at the lower range for that type of offence and that will be reflected in the sentence upon you.

21The theft of the bow, arrows and knife set is one which, if heard on its own, would not ordinarily warrant a sentence of imprisonment if it was simply a theft of property.  The fact that it occurred during a course of a home invasion with the items being taken from inside a person’s house whilst they were present, must in my view justify some short period of imprisonment.

22Mr Atwell, I now propose to sentence you as follows:

23On Charge 1 of home invasion – you will be convicted and sentenced to a period of 2 years and 9 months' imprisonment.  That is the base sentence.

24On Charge 2 of theft of a firearm – you will be convicted and sentenced to one year imprisonment.  I direct that 3 months of this sentence be served cumulatively upon the base sentence.

25On Charge 3 of theft – you will be convicted and sentenced to 3 months' imprisonment.  I direct that 1 month of this sentence be served cumulatively upon the base sentence and the sentence imposed for Charge 2.

26That amounts to a total effective sentence of 3 years and 1 month imprisonment.  I direct that 21 months be served before you become eligible for parole.

27I declare that you have served 213 days in pre-sentence detention, not including today.  I direct that that pre-sentence detention is to be entered in the court records.

28But for your plea of guilty, I declare pursuant to s6AAA of the Sentencing Act, the sentence I would have imposed upon you would have been an aggregate sentence of 4 years' imprisonment with an eligibility for parole after serving 2 years 9 months of that sentence.

29The further orders that I make are that pursuant to s86 of the Sentencing Act you are to pay compensation to your victim’s son – the details of which are in the court order – in the sum of $1,000.

30Pursuant to s33(1) of the Confiscation Act 1997 the property referred to in the schedule (namely 1  machete style fixed blade knife) be forfeited to the Minister.

31Mr Atwell, do you understand I've sentenced you in total to a maximum sentence of three years and one month and I have directed that you serve 21 months before being eligible for parole and you have served now 213 days which will be deducted from that sentence, do you understand that?

32OFFENDER:  Sort of, yeah.

33HIS HONOUR:  I am sure Mr Timms will speak to you and explain those matters to you.  Ms Kretzenbacher, is there anything further sought by the Crown at this stage?

34MS KRETZENBACHER:  No Your Honour, as Your Honour pleases.

35HIS HONOUR:  Mr Timms, we will of course email through those sentencing remarks both to you and to the Crown and you will have an opportunity no doubt to speak with your client.  Is there anything further on behalf of the defence at this stage?

36MR TIMMS:  No, Your Honour, thank you.

37

HIS HONOUR:  Thank you very much for your assistance, Mr Timms and

Ms Kretzenbacher.  Mr Atwell, I have to pass sentence on you in the way that I have done.  I do wish you success with your efforts towards rehabilitation.  I want to see you on your release be able to join with the community and lead a pro-social life.  I don't want to see you back before me again.

38And again, I just point out to you and it is not part of my sentencing remarks, it is very fortunate for you and for your intended victim that he was not there at the time of this home invasion.

39Thank you.  Very well, if there is nothing further we will just adjourn the hearing and terminate the link.

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