New South Wales Court of Criminal Appeal CITATION : Regina v Atkinson [2001] NSWCCA 135 FILE NUMBER(S) : CCA 60555/99 HEARING DATE(S) : 28 March 2001 JUDGMENT DATE : 28 March 2001 PARTIES : Regina v Steven Miimetua Atkinson JUDGMENT OF : Greg James J at 34; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/2122 LOWER COURT JUDICIAL Goldring DCJ OFFICER : COUNSEL : (A) J S Andrews (R) C K Maxwell QC SOLICITORS : (A) D J Humphreys (R) S E O'Connor CATCHWORDS : Sentencing - parity - special circumstances - intellectual and living disabilities - prospects of rehabilitation - allowance for plea of guilty LEGISLATION CITED : Nil CASES CITED: Nil DECISION : Leave to appeal granted - Appeal allowed - sentence quashed. In lieu of the sentence imposed the applicant is sentenced to imprisonment for a period of five years three months commencing on 20 April 1999 with a non-parole period of two years commencing on that day and ending on 19 April 2001. IN THE COURT OF CRIMINAL APPEAL 60555/99 G JAMES J SMART AJ Wednesday 28 March 2001 REGINA v STEVEN MIIMETUA ATKINSON JUDGMENT 1 SMART AJ : Steven Miimetua Atkinson seeks leave to appeal against the severity of a sentence comprising a minimum term of two years nine months and an additional term of three years. The offence was that on 20 April 1999 at Liverpool he robbed the victim of $100 while being in company with Miha Misi and William Atkinson. The judge correctly stated the charge. The original charge included the words "whilst being armed with a knife" but these words were struck out. 2 In recounting the facts the judge stated that Misi was armed with a black coloured imitation pistol and the applicant with a silver bladed serrated edged knife. The charge did not include robbery whilst armed. 3 About 10.20 pm on 20 April 1999 the victim and a friend were at the National Australia Bank ATM on the corner of Macquarie and Scott Streets Liverpool. The victim had just withdrawn $100 when Misi and the applicant approached him from behind. Misi aimed the pistol at the victim and demanded that he hand over the money. The victim did so. Misi demanded that the victim withdraw more money. Before he could do so Misi and Atkinson ran to a red Ford Laser car nearby and they were driven off by William Atkinson. The registration number was taken. 4 At about 12.30 am on 21 April 1999 a girl and the two Atkinson brothers were stopped in the red Laser sedan at Warwick Farm. During a search of the car two black beanies and a silver bladed serrated edged knife were located. This provided a useful evidentiary link. About 3.20 am the police went to the premises in Warwick Farm where Misi and Atkinson were living. They found some clothing as described by the victim and a black imitation pistol. These were further evidentiary links. 5 In his recorded interview the applicant stated that he went to the automatic teller but denied being armed with a knife. He knew Misi was armed with a pistol. The applicant said that he had had the pistol at home for some time. Misi stuck the pistol in the victim's face. The applicant pleaded guilty at the Local Court, which committed him for sentence. 6 The applicant was born on 27 July 1978 and was thus aged twenty at the time of the offence. His record dates back to 1994, with many dishonesty offences, some driving offences and malicious damage. He has been fined, sentenced to community service, and spent six months in gaol from November 1997 to May 1998. His record does not contain any entries involving personal violence. It is not a good record. 7 The childhood and teenage history of the applicant is disturbing. It is set out in detail in the report of Associate Professor Susan Hayes. The applicant was born in Bankstown, his mother being a Cook Islander. He lived with his family in the Cook Islands until he was four, when the family returned to Australia. He was belted up a lot as a child by his father. 8 About the age of eleven he got onto drugs and started stealing. The people who got him to do that got him hooked on heroin. He ran away from home when he was about eleven and lived on the streets for two or three months and was involved in stealing cars and heroin use. He started to drink heavily, again at about the age of eleven. 9 The applicant returned home when he was about twelve. He was asked to leave one State high school and was expelled from another for violence, halfway through Year 9. Throughout he continued to use heroin and commit offences. He has been physically assaulted on a number of occasions and beaten to the point of unconsciousness. He has been drug free on occasions, but went back to using heroin after he left gaol. He used to get blackouts. As a baby he was savaged by a dog. This has resulted in blurred vision in his left eye. 10 The results of the various psychological tests revealed that in many ways the applicant has the maturity and skills of a child. He was intellectually disabled, he has the communication skills of a child of six years and ten months, the daily living skills of a child of eight years and nine months, and the socialisation skills of a child of five years and two months. Further, the tests suggest that he is disoriented. The test results are consistent with organic brain damage, possibly sustained as a result of a ten year history of substance abuse and possibly as a result of traumatic injury to his head from repeated bashing, but it is not possible to identify the cause precisely. 11 The applicant functions at a level lower than 99.7 per cent of the population. Associate Professor Hayes stated that the applicant was seriously depressed and quite a high suicide risk. He has very little insight into his own condition and few resources to assist him with the period in gaol. He needs frequent and consistent drug and alcohol counselling. He has very immature coping skills and is easily led. He was vulnerable in prison. 12 Mr George Klein, a well qualified behavioural scientist, has written: "... there would appear to be a number of factors which have contributed to his involvement in drug use and criminality. These include victimisation in his family, depression or at least depressive feelings, exposure to habitual psychoactive substance use in late childhood, adolescent associations with drug using peers, the mood stabilising effect of heroin and intellectual disability." 13 Mr Klein thought the applicant needed to undergo in-patient treatment of a residential variety. He wrote: "In a well-structured residential treatment setting environment ... Mr Atkinson has the best prospect of obtaining the range of services and management assistance that he needs, in addition to acquiring basic living skills which he currently lacks. Drug and alcohol workers in the correctional system will be able to facilitate Mr Atkinson's assessment by treatment services. At interview Mr Atkinson indicated his willingness to participate in residential drug treatment." 14 In his remarks the judge said: "Mr Atkinson is a young man and he has had a number of difficulties in his life and while the courts must take into account the need to show Mr Atkinson that armed robbery, aggravated robbery is serious and to show other members of the community that that is the case, I think I should recommend a punishment to the extent that it is possible will allow Mr Atkinson to develop his skills. I note that Mr Atkinson did not plead guilty at the first opportunity, but he did so at the Local Court and that is reflected in the sentence I am about to impose." 15 The judge was incorrect to refer to "armed robbery" and perhaps he was correcting himself when he immediately said thereafter "aggravated robbery". It is a pity, given the judge's reference to the pistol and the knife that he did not specify the use which he made of that evidence, or make it clear that he was not dealing with a case of armed robbery in company. 16 Appeal ground 1 reads: His Honour erred in failing to give the applicant the maximum utilitarian value for his plea of guilty. The applicant submitted that having regard to his limited access to legal aid, his intellectual disability and the requirement under the Justices Act for the prosecution to provide a brief for the entering of a plea of guilty pursuant to s 51A of the Justices Act, that is a plea of guilty at the first opportunity. 17 The Crown submitted that his Honour had specifically considered the timing of the plea and effectively distinguished it from the co-offender Miha Misi, who readily admitted that he had taken part in the robbery and assisted the police generally. The Crown pointed out that the applicant was arrested approximately two hours after the offence on 21 April 1999 and brought before the Liverpool Court on that day. The matter was adjourned for mention only to 29 April 1999. On that day the applicant was legally represented but it appears that the ERISP had not been transcribed. The matter was stood over to 8 June 1999 when a plea of guilty was entered at Burwood Local Court. On 23 July 1999 and he was committed for sentence to the District Court pursuant to s 51A of the Justices Act. 18 The Crown in its submissions stated that it was true that the applicant had not pleaded guilty on 21 or 29 April 1999 but that it was accepted that in fairness and consistent with proper legal representation, his lawyers should have had the opportunity to view the ERISP prior to a plea of guilty being entered. The Crown pointed out that it was not until the hearing on 24 September 1999 that the use of the knife by the applicant was conceded. There is no record of that concession but there was evidence before the judge that such a knife had been used. However, it should be remembered that this was a charge of robbery in company, so that the question of the knife was not a necessary element of the charge. 19 In my view the judge took an unduly restrictive view of the time at which the plea was entered and for practical purposes it was in truth entered at the earliest opportunity. 20 Appeal ground 2 reads: His Honour erred in sentencing the applicant more severely than his co-accused Misi. The sentence imposed on Misi was a total sentence of five years and three months with a non-parole period of two years nine months. Thus Misi received an overall sentence which was six months less than that received by the applicant. The applicant submitted that while at the time of the offence Misi was aged eighteen years, the applicant was aged twenty and was also a young man. Further, while the record of the applicant contained more entries than that of Misi, it did not contain any offences of violence. It was pointed out that Misi had two prior matters of armed robbery and whilst those offences may have been dealt with in the Children's Court they were recent in relation to the present offence being dealt with on 12 October 1998, that is, some six months before the present offence. 21 It was further submitted that whilst the applicant may have been older than Misi, the results of the tests demonstrated by Dr Hayes revealed the applicant's intellectual disability and his lack of skills. It was submitted that when the matters were balanced up there was no real basis for imposing a longer sentence on the applicant. 22 The Crown replied by relying on the difference in the ages of the two men at the time and the length of the record of the applicant. The submissions of counsel for the applicant have great force and I am of the view that there was no sufficient basis for the distinguishing overall between the sentence which should be imposed on Misi and that on the applicant. 23 Appeal ground 3 reads: The sentence is manifestly excessive. The applicant submitted that the judge failed to give sufficient weight to the strong subjective case of the applicant, particularly as to the origin of his drug addiction at a very young age, in a person whose capacity was impaired. It was also submitted that this was a case where less weight should have been given to the factor of general deterrence because of the lack of capacity. 24 The Crown stressed the applicant's criminal history. It also submitted that there was no evidence to indicate that the applicant's lack of capacity played a significant part in the commission of the offence. It is true that there is no direct evidence to this effect, but when one has regard to the lack of capacity and intellectual ability, the applicant's ability to weigh matters up and reach a right conclusion was significantly impaired. 25 It was submitted that no error had in fact been made by the judge. The judge does not seem to have taken into account the prisoner's vulnerability in gaol and that he was likely to spend time in protection. While the offence was serious, I am of the opinion that the sentence imposed does not sufficiently allow for the applicant's subjective features. In particular, it does not sufficiently allow for his intellectual disability and his lack of basic skills. He needs to acquire basic living skills. 26 The applicant's case has special features and the sentence imposed should take these into account. The sentence is, in the circumstances, manifestly excessive. 27 In re-sentencing the applicant, it is necessary to take into account further material. The Court has before it the affidavit of the applicant sworn 16 March 2001. That details the courses which he has undertaken. He has asserted that he has not used any drugs while in prison. He also deposed to the work he had done and how he had to enter into protection after he had refused to participate in the use of drugs and had been bashed across the chest, albeit only with a pen. 28 The applicant was in protection between 6 September and 23 December 1999. The applicant now feels that he has some measure of hope, he has never been "straight" as he put it, for so long since being a teenager and he hoped that he would not succumb to the use of drugs again. 29 The reports from the prison are encouraging in that since being at Windsor he has been working in the wire shop and has shown real progress there, receiving a very favourable report from his supervisor. The overall effect of the evidence is that the applicant seems to have found a number of jobs which he can do. He is doing well in the wire shop and this is encouraging. 30 Perhaps this is the first time in his life that the applicant has received good direction, supervision and support. He is now, it seems, starting to look forward. Special circumstances exist. They are to be found in the applicant's intellectual disability and lack of coping skills and the need for extended support, supervision and rehabilitation on his release. The head sentence should be reduced to three years nine months and there should be a non-parole period of two years. 31 When considering the applicant's release on parole, consideration should be given, based on the applicant's then condition, to whether his release should in the first instance be for residential in-patient treatment at a drug rehabilitation unit of a kind recommended by Mr Klein. That will depend on the progress which the applicant has made. 32 I propose the following orders: 1. Leave to appeal be granted. 2. Appeal allowed, sentence quashed. 3. In lieu of the sentence imposed the applicant be sentenced to imprisonment for a period of five years three months, commencing on 20 April 1999 with a non-parole period of two years commencing on that day and ending on 19 April 2001. 33 Apart from noting that the applicant will need supervision and support, I have deliberately made no specific recommendation to the Parole Board other than it should give consideration to the matters I have adverted to. I cannot anticipate what will be the situation when the Parole Board comes to consider the matter. 34 GREG JAMES J : I agree with the orders proposed by Smart AJ and his reasons therefor. The orders will be as he proposed. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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