IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	

Case No. CR-20-00559

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
MAREE LOUISE ATKINSON		

---

JUDGE:	HER HONOUR JUDGE LAWSON	
WHERE HELD:	Melbourne	
DATE OF HEARING:	23 July 2020, 17, 23 and 26 November 2020	
DATE OF SENTENCE:	26 November 2020	
CASE MAY BE CITED AS:	DPP v Atkinson	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1912		

REASONS FOR SENTENCE
---

Subject:	
Catchwords:	Criminal law – Sentencing – Arson and related summary offence of commit indictable offence whilst on bail – Aboriginal offender – Early plea of guilty – Sentence of imprisonment combined with a community correction order

---

APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr M. Roper	Abbey Hogan, Solicitor for Public Prosecutions	
			
For the Accused	Ms S. Gillahan	Stary Norton Halphen	

HER HONOUR:

1	Maree Atkinson, you have pleaded guilty to one charge of arson and one related summary charge of commit indictable offence whilst on bail.
2	You have admitted your prior criminal history.  There are appearances in the ACT, New South Wales, and here in Victoria for street type offences such as offensive language, disorderly conduct, as well as some dishonesty offending and breach of court orders.
3	You have received a variety of dispositions in the past including adjourned undertakings and fines. 
4	On 27 March 2019 a community correction order was imposed at the Echuca Magistrates’ Court for a period of nine months with conditions of supervision and a special condition you undergo assessment and treatment in respect to alcohol abuse.  
5	The offending that is the subject of the indictment before me breaches the community correction order and that is an aggravating feature.
6	You are a 45-year-old, proud Aboriginal woman of Yorta Yorta and Wiradjuri descent.  Your past criminal history largely reflects your complex history of trauma, associated acquired brain injury and also intellectual disability and I will refer to that in some depth later.
7	I will now sentence you on the basis of what was set out in the prosecution opening. 
8	In brief, your offending relates to a fire that you lit at a unit located at 2/31 Garden Crescent, Echuca.  The offending was on 11 June 2019.  The unit was provided to you by Aboriginal Housing Victoria through the Njernda Aboriginal Corporation (Njernda), located in Echuca.
9	At the time you were living in the unit and you had your 24‑year-old daughter, Elizabeth living with you.  Before the fire you had received an eviction notice, and in the past, you were making threats to staff who were responsible for the management of the unit, that you would burn the place down.
10	On the day of the fire, neighbours saw smoke coming from the unit and attempted to douse the flames with garden hoses until the fire brigade arrived.  A representative from Njernda, Karlisha or ‘Carly’ Egan, saw you running from the unit with your daughter and was able to assist you.
11	The fire was extensive and caused approximately $195,000 damage.  The unit had to be demolished and rebuilt and the cost was approximately $230,000.
12	It was determined that the fire started in the lounge room and that was by ignition of available materials such as a couch.  The possible source of ignition was determined to be either direct ignition using a match or a cigarette lighter.
13	You were arrested at Njernda Aboriginal Corporation and taken to the Echuca Police Station. 
14	You were fully co-operative with police and made full admissions. You took full responsibility for your actions and admitted lighting the fire. You told police you were ashamed of your actions and you told them that you lit a lighter and the couch had just erupted into flames.
15	At the time of the fire you were on bail in respect to some theft charges, therefore you have been charged with the related summary charge of commit indictable offence whilst on bail.  I note that those charges have now been formally proven and dismissed.
16	Maree Atkinson, the offence or arson is serious and that is reflected in part by the maximum penalty and that is 15 years’ imprisonment.  In respect to the summary charge that is commit indictable offence whilst on bail the maximum penalty is three months’ imprisonment or 30 penalty units.
17	On 14 August 2019 you were granted bail and following your release on bail, you were admitted to Winja Ulupna Women’s Recovery Centre.  Winja Ulupna is a 24‑hour residential alcohol rehabilitation centre for Aboriginal women who suffer from alcoholism.  The purpose of the Winja Ulupna program was to enable you to fully understand your alcohol abuse problem and to develop skills and strategies needed to remain sober once you had completed the program.
18	Unfortunately, due to non-compliance you were exited from the program on 15 September 2019.
19	I have had regard to the 33 days that you spent on the program and have applied the principles of Akoka v The Queen [2017] VSCA 214.  
20	After leaving Winja Ulupna you failed to attend court and therefore you were arrested and remanded back into custody on 9 February 2020.  
21	On 21 April 2020 your matter resolved and a further grant of bail was made.
22	On 23 July 2020 you were arraigned in this court and pleaded guilty to the two charges.  Your matter was then adjourned and sentence deferred so that the possibility of you being able to be admitted to the Victorian Dual Disability Service program at St Vincent’s Hospital could be fully explored.  The program deals with dual diagnoses of mental health and addiction.
23	Unfortunately, you were unable to be accepted in the program and the issues surrounding COVID-19 meant that it was very difficult to find any other suitable rehabilitation program at that time.
24	On 5 August 2020 you did not appear in court and ultimately, you were re-arrested and remanded back into custody on 16 October 2020 where you have remained.
25	Dr Victoria Jackson, a consultant psychiatrist at Forensicare, in her letter dated 11 November 2020, confirms you have been diagnosed with numerous mental health conditions including complex trauma (consistent with complex post-traumatic stress disorder) in the context of likely acquired brain injury.
26	I accept from all the material that has now been provided to the court that you have suffered intergenerational trauma and you also have a history of complex and varied psychiatric diagnoses as well as a significant past history of psychiatric treatment.
27	There is also a history of chronic alcohol and substance abuse. 
28	Dr Jackson in her report says it is likely your substance use, in addition to reported head injuries, has contributed to your acquired brain injury, which she states is likely to be related to your trauma history.  
29	You are currently being treated with antidepressant medication as well as medication to help you sleep and thiamine, a vitamin supplement.
30	In addition to your physical and mental health issues, Dr Emily Zou assessed you as having an intellectual disability.  She found that you have a full scale IQ of 57 consistent with a diagnosis of intellectual disability of mild to moderate severity.
31	Dr Zou attributed that to a combination of factors including your mental health diagnoses, existing intellectual disability and probable alcohol-related brain injury.
32	A statement of intellectual disability dated 9 July 2020 has been certified by David Pearce, acting manager, Forensic Disability Services.
33	Prior to the commission of this offending you had never been held in custody.  You have now spent a total of 177 days on remand at Dame Phyllis Frost.  I accept that the time spent on remand has been difficult.  In the initial period, due to your mental health condition you were admitted to the Marrmak Mental Health Unit as it was evident you had significant needs for supported and facilitated living.
34	During the second period on remand, that was when the declaration of the state of emergency was made due to the COVID‑19 pandemic and many associated restrictions were put in place by Corrections Victoria in order to reduce the possibility of transmission of the disease in the custodial setting.  That included no visits and no programs and I have taken into account the difficulties that that would have meant for you whilst you were in custody.
35	Whilst at Dame Phyllis Frost you have had the advantage of being properly assessed by Dr. Zou who is a neuropsychologist.  Importantly, through her report, it has helped prepare an application for an NDIS plan was made which has now been approved.  
36	Dr Zou says that you have an acquired brain injury and she attributes that to a history of domestic violence as well as heavy alcohol use and says that you have high support needs.  
37	I have had regard to your personal history and background.  You were born in Echuca, Victoria. 
38	I accept that you have experienced a life of profound disadvantage and trauma.  That is fully documented in the material before me.
39	You are the eldest of six.  You have four brothers and one sister. 
40	Your biological father died before you were born and your mother struggled over the years to care for her children.  You were taken from her care when age nine and did not return to live with your mother until you were age 14.  
41	Your childhood was very disruptive and characterised by many moves.  When living with your mother you were exposed to her being the victim of physical violence in the context of her intimate relationships.  
42	When you were 15 you left home and commenced a relationship that was characterised by violence and you suffered a miscarriage due to your partner’s violence.
43	At age 16 you and one of your sisters was placed into Winlaton Youth Training Centre as wards of the state and you also spent time at a different facility, an orphanage in Rosanna.
44	Eventually, you were reunited with your mother and followed her and lived in Broken Hill, New South Wales.  There you met a man with whom you became intimate and he is the father of your three older children.  That man was in and out of jail and the family moved frequently, sometimes interstate.
45	He was a very violent man who in 2007 was found guilty following a trial of false imprisonment and intentionally causing serious injury where you were the victim.  He was sentenced to a term of imprisonment.  Her Honour Judge Coate said in her sentencing remarks states that your former partner behaved in an appallingly violent manner towards you and that the photographs of your condition following the attack upon you were a chilling piece of evidence from which the brutality of the attack upon you could be seen. 
46	Following his imprisonment you were left to care for the three children and that was very difficult and you struggled to manage to care for them with no real stability.  Sometimes you would stay with your mother and at other times you were unable to care for the children and they were removed from your care which would have caused you to be very upset. 
47	I note that you gave evidence in the trial against your former partner and I accept that that experience would have been very traumatic for you and has had a lasting impact upon you.
48	You had your fourth child subsequently. Your life has continued to be one of a very disruptive pattern with you living in transitional housing in many different locations in both the city and regional Victoria. 
49	You have little by way of formal education.  You left school part way through year nine but you have worked as a cleaner, a fruit picker and on occasion at a nursery.  You have been in receipt of the disability support pension since 2008 for acquired brain injury.
50	There is a long history of polysubstance abuse.  You have been drinking heavily since you were very young and also abusing drugs since your early teenage years.  
51	I accept that your past history of abuse and exposure to severe domestic violence has impacted upon your ability to manage all your life stressors and led to you drinking heavily and also abusing drugs.  In the past you have been diagnosed with depression, anxiety and complex trauma, and you also suffer some physical disabilities that are associated with previous domestic violence injuries, including back and leg pain.  
52	I accept that you resorted to alcohol and drug abuse to mask your pain and that your past court appearances can largely be explained by your complex trauma history and the difficulties associated with your heavy drinking and abuse of drugs.  
53	Importantly, an NDIS plan has now been approved that provides you with a suite of programs that seeks to address your complex trauma history and it will aid you in obtaining stable housing and appropriate support services in the community such that you will be able to manage your complex post-traumatic stress disorder and other conditions with the assistance of appropriate support people.  You now have an NDIS worker allocated to you.  
54	The full extent of your trauma history is now known.  This is really the first time you have felt that you could explain your past to your lawyers and also the court.  
55	Over the years your problematic behaviour has meant that you have been prohibited from attending a number of services and therefore you have lacked appropriate supports for your complex needs. 
56	One positive outcome of the time that you have spent on remand is that the full extent of your past history and disabilities are now known.  
57	An NDIS plan dated 16 November 2020 has been approved and is in place and that provides, as I said before, a suite of services that will assist you in your daily life to support you in the community including proper support for housing and also coordination of all the other services that are addressed at your underlying issues that will mean that you will have better support in the community.  
58	Therefore, I consider that with that support you have got realistic prospects of rehabilitation. I can say for my own observations Ms Atkinson that you have made a remarkable turnaround from the situation that she found herself in at the time of the offending and that it is in the best interests of the community and also your interests that you be continued to be supported to ensure that this transformation continues.
59	Ms Gillahan, on your behalf, conceded that arson is inherently serious and that there were a number of aggravating features to the offending, including the fact that you committed it whilst you were on the community correction order, the fact that your daughter Elizabeth was present at the time and could potentially have been exposed to harm, the fact that the fire destroyed the unit and by doing so you breached the trust of the Njernda cooperative who had arranged the housing for you and also through those actions you potentially deprived another person in need of secure housing.
60	I do accept, however, that the offending is at the lower end of seriousness for this sort of serious offence.  You did not use an accelerant.  It was an opportunistic fire with there being only one point of ignition.  Fortunately, the fire did not spread to the other units. It is not a case where the offending was motivated by financial greed or personal gain.
61	It also occurred in the context where you were struggling, you were drinking heavily and not managing your personal situation and your mental health.  You were not being properly treated for your mental health conditions, your alcohol and drug addictions as well as your complex trauma history complicated by the acquired brain injury.  And, in addition, you are a person who has a documented intellectual disability.  All of those factors combine to explain the context to the offending and in saying that, I do not excuse your behaviour and I must condemn your behaviour on behalf of the community.
62	I have taken into account all the matters put in mitigation.
63	I accept that you entered a plea of guilty at the earliest opportunity at committal mention.  There  is significant utility in the plea.  I noted your very full cooperation with police, making full admissions and the apology at the time of the offending.
64	Your sentence will be discounted to reflect the early plea.  I accept that you have facilitated justice. 
65	I also consider that you have demonstrated appropriate remorse and you are now very ashamed of the offending and you take full responsibility for your actions.
66	I have had regard to your history and background and experience of significant trauma, including intergenerational trauma, as well as the trauma that you have been exposed to over your adult life from partners who have inflicted injuries upon you in the context of domestic violence.  Those traumas and disadvantage have been operative since your early formative years. I accept that the circumstances of your deprivation have been significant and that the significant disadvantages you have suffered as well as traumatic abuse and other social disadvantages that you have experienced have been profound and have had a big impact upon you and that has not diminished over the period of time and also in the context of your offending.
67	I have applied the principles of Bugmy.  The High Court recognised that:
“the effects of profound deprivation do not diminish over time and repeated offending and it is right to speak of giving full weight to an offender’s deprived background in every sentencing decision.”
68	I have reduced your moral culpability and have given full weight to your circumstances in formulating the appropriate sentence. 
69	I accept that due to the combination of the features that I have highlighted including your intellectual disability and mental health conditions, that all limbs of the Verdin’s principles are enlivened.
70	I have moderated the need to emphasise both general and specific deterrence. 
71	I have taken into account the efforts that you have made to address your underlying addictions through the time you spent at Winja Ulupna and also your commitment to take up the opportunities that will be provided to you through the NDIS plan.  You now have a suite of programs that will be able to be utilised that are tailored specifically to your needs and will assist you.  And, in addition, the community correction order will address your alcohol and drug abuse issues as well as mental health issues. 
72	I note that you have been supported by the Centre Against Sexual Assault (CASA) whilst in Dame Phyllis Frost to undertake complex trauma counselling which is also a very important step in providing you with a pathway to your healing.
73	Arrangements are now being put in place to ensure that you have secure housing for the future, appropriate psychiatric support and treatment upon your eventual release. 
74	I accept that you have used your time in custody productively and I have had regard to all the courses that you have completed.
75	I am somewhat more optimistic about your rehabilitation prospects now that these wraparound services have been provided to you.  
76	I do emphasise and encourage you to continue your efforts and to reach out and accept the help that is now being provided.  
77	I was very encouraged by Dr Jackson’s comments that you settled well this time on remand and that you have been compliant with your medications.  That is consistent with what I have observed when you have been before me in court.  You have demonstrated to the court that you are thinking more clearly and that you are willing to accept help that is offered.  So, that is all very good in terms of the future for you.
78	I have had regard to the impact of the COVID-19 pandemic and I accept that that causes additional stress and concern for you and your family as it has been for everyone in the community.   
79	I have also had regard to the direct impact, namely the restrictions imposed by the prison authorities on your daily life.
80	I will now make the formal orders.
81	In respect to the charge of arson, you are convicted and sentenced to 177 days' imprisonment to be followed by a 12-month community correction order in the terms that I have already described.  There will be conditions for treatment and rehabilitation for alcohol rehabilitation and programs to reduce reoffending, supervision and judicial monitoring.  The date for judicial monitoring Wednesday, 10 February 2021 at 10am.
82	In respect to the charge of commit indictable offence whilst on bail, you will be convicted and sentenced to one-month imprisonment.
83	I note that I have explained fully to you the community correction order and you have given me your verbal consent.  You acknowledge that you understand the effect and conditions of the order and have consented to it being made and that will be noted in the records of the court.
84	Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a term of imprisonment of two and a half years to serve 12 months.
85	Now I only need to make the declaration of PSD.  Pursuant to s.18(4) of the Sentencing Act 1991, I declare that you have spent 177 days in custody by way of pre-sentence detention, and direct that that be entered into the record of the court.
86	I believe that covers everything, Mr Roper?  There were no ancillary orders?
87	MR ROPER:  No, Your Honour. 
88	HER HONOUR:  All right, so, the intention is, Maree that you will be released today.  My associate will prepare the orders and I will sign those orders and they will sent through to central records so that arrangements should be in place for your release today and hopefully you will be able to communicate with Lilydale community correction services and they can arrange for you to undergo what they say is their induction program and then you will be introduced to all the conditions of the order and they will explain the order again.
89	As I said to you before, Maree, it is really important that if you have any issues, if you do not understand what is being explained to you, just ask. 	Now that you have the NDIS worker use that worker to assist you and that way you can avoid any issues arising.  I know that was rather long.  I had to explain why I was doing what I was doing.  And I hope you understand the effect of the order.  Did you want to say anything before we finalise the proceeding, Maree?
90	OFFENDER:  Ah, I'd just like to say thank you to all of you and have a merry Christmas, yeah.
91	HER HONOUR:  All right, well, look I must say Maree, it has been really good to see you looking so well and responding so well and I hope for your sake and for all your family, because you have got a couple of grandchildren, I understand - - -
92	OFFENDER:  Yes.  Yes. 
93	HER HONOUR:  - - - that things do pick up for you and that your future is brighter.
94	OFFENDER:  Yes, it will be, Your Honour.
95	HER HONOUR:  All right, and I must especially thank Ms Gillahan who has done a marvellous job in putting this all together and supporting you.  I know, it has been very difficult for you, Maree and the important breakthrough was just getting your story.
96	OFFENDER:  Yes. 
97	HER HONOUR:  So, thank you, we really needed you to trust us to tell your story and I completely understand why it was so difficult for you but it is very important to acknowledge that your courage in telling your story has had the impact that you are now in a much better place.
98	OFFENDER:  Yes, it sure is.
99	HER HONOUR:  Yes, so hopefully when I see you in February things are going well - - -
100	OFFENDER:  Thank you. 
101	HER HONOUR:  - - - and I wish you all the best.
102	OFFENDER:  Thank you so very much, Your Honour - - -
103	HER HONOUR:  Yes, thank you.
104	OFFENDER:  - - - thank you Stephanie, thank you - and Michael, thank you to Courtney, John and the APP and Court Services, yeah, all of youse lawyers, thanks.
105	HER HONOUR:  Yes, well, look, it will be really good to see you again in February.  I want to see the same person I am seeing today.
106	OFFENDER:  You will Your Honour and thank you.
107	HER HONOUR:  Thank you.  Thank you. 
108	OFFENDER:   Yep, yep.
109	HER HONOUR:  Thank you Mr Roper and Ms Gillahan, it has been a long journey but we got there in the end.
110	MS GILLAHAN:  We did, Your Honour.
111	HER HONOUR:  So, thank you very much.  I think Ms Gillahan, it is really interesting isn’t it just to see what a difference it makes when somebody trusts you, yes.
112	MS GILLAHAN:  And I must say, when I went and saw Ms Atkinson she said I feel like a different woman and she is.  It is a different Maree to the one we started with, I must say.
113	HER HONOUR:  I know, it is extraordinary, isn't it.  It is so lovely to see and I thank you for all your efforts because I know it has been a bit of a journey for you but very informative for all of us.
114	MS GILLAHAN:  Absolutely, thank you, Your Honour.
115	OFFENDER:  And thank you to Louise.
116	HER HONOUR:  It just shows you, does it not, what a difference it makes when we know all the information.  Yes. 
117	MS GILLAHAN:  Very much so.
118	HER HONOUR:  So, thank you.  All right, we will complete the proceeding and discontinue.  Thank you, Mr Roper.
119	MR ROPER:  Yes, thank you, Your Honour.
120	HER HONOUR:  Stephanie, did you want to talk to Maree before we leave?  I can leave the Bench and everybody else can leave and you can have a talk, quick chat?
121	MS GILLAHAN:  Yes, thank you, Your Honour.
122	HER HONOUR:  All right, we will do that.
- - -