DPP v Atkinson [2024] VSC 286

2 Mr Delphine was a close friend of your mother's, and you had known him since your childhood. You had been told some weeks before the offending that Mr Delphine had naked photos of your younger sister on his phone, and that he had shown the photos to other people, who had told you and your mother about them. Your sister was upset and afraid to leave the house, because of other sexually inappropriate things that she said that Mr Delphine had done or said to her. Because of your own childhood experiences of abuse, you were very protective of your sisters and mother.

3 Shortly after 7pm on 22 May 2023, Mr Delphine entered the Woolworths supermarket in Mooroopna to buy eggs. You were already inside the store with a friend. When you became aware of Mr Delphine's presence, you handed your groceries to your friend and asked him to pay for them, so that you could go and talk to Mr Delphine. You chatted briefly with Mr Delphine, and asked him to come outside to talk, but he declined to do so and backed away from you.

4 You followed Mr Delphine in an aggressive manner down an aisle of the supermarket. You then punched him once to the chest and once to the head, causing him to fall to the ground. As Mr Delphine tried to get up, you stomped on his head twice. A security guard then intervened and pushed you off Mr Delphine. You tried to hit the security guard, as he was trying to protect Mr Delphine who was lying on the ground.

5 Witnesses heard you saying that Mr Delphine had "done something" to your sister or a family member.

6 While witnesses were calling 000, you left the store, yelling "I'll get him."

7 Mr Delphine was airlifted to the Royal Melbourne Hospital, but his head injuries were inoperable, and he was placed on life support. On 1 June 2023, Mr Delphine's life support was withdrawn. He died a few days later, on 5 June 2023.

8 At the time of your arrest, the day after the incident, you were unfit to be interviewed. You were interviewed the following day, during which you made full admissions to the assault. You told police that you had been upset because the deceased had naked photos of your younger sister. You said you reacted to Mr Delphine telling you that your sister was lying, and refusing to come outside to talk to you. You said you just "snapped" and "lost it". You said that you didn't intend to hurt Mr Delphine, and that he was a good person who "went sick." When you were told that Mr Delphine was critically injured and may not survive, you said he didn't deserve what happened.

9 When you were arrested, you had seven sandwich bags of cannabis, totalling 51.7 grams. On your mobile phone, there were several incoming and outgoing messages referring to the sale of cannabis. This conduct constitutes charge 2, trafficking in a drug of dependence.

10 There are a number of matters that are relevant to assessing the objective gravity of your offending.

11 You had known about the allegation that Mr Delphine had naked photos of your sister for some weeks, and had tried, unsuccessfully, to speak to him about it before that day. When your paths crossed by chance in the supermarket, you approached him with the sole intention of speaking to him. You asked him to come outside. He smirked at you, denied the allegations about your sister, and tried to walk away. You just "snapped", followed him and started punching him. The attack happened spontaneously.

12 The attack was relatively brief, consisting of four blows in total. No weapon was used. However, two of those blows were particularly serious, as they involved stomping on Mr Delphine's head when he was in a vulnerable position on the ground. You also tried to hit the security guard, as he tried to protect Mr Delphine.

13 The offending took place in public, in the presence of numerous witnesses.

14 You immediately left the scene, and did not try to help Mr Delphine.

15 It is an aggravating feature of your offending that you were on an adjourned undertaking at the time of this offending.

16 Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.

17 Very moving victim impact statements were provided by Mr Delphine's mother and two of his sisters. Mr Delphine's family have been profoundly affected by these events, both by your actions and by the manner in which he ultimately died.

18 Mr Delphine was 46 years old when he died. He was the fourth of six siblings, with aboriginal heritage on his father's side. He was born and grew up in Tasmania, where most of his family members still live.

19 Mr Delphine moved to Victoria in 1995. He worked for many years picking fruit, and in various other casual jobs, before going on a disability support pension in 2016.

20 His family have many happy memories of growing up together in a large, extended family. Although most of his family had not seen Mr Delphine for some years, it is clear that he was loved and is greatly missed by them. They had hoped that he might move back to Tasmania, to be closer to them. Part of their grief and pain comes from knowing that they will never get the chance to reconnect and spend more time with him.

21 Mr Delphine spent a fortnight in hospital. Family members kept a loving vigil by his hospital bedside, for as much of the time as they were able to. Initially, they held on to the hope that he might recover. Eventually, they had to come to terms with the fact that he was not going to do so. It was particularly painful for them to watch him dying over a number of days, after his respirator was turned off.

22 In 2004, Mr Delphine had a daughter with his then partner. He had no contact with his daughter since she was a baby. Not long before his death, he had been in contact with her. His family are saddened that he won't have a chance to reconnect with his only child.

23 There is nothing this court can say or do that will bring back Mr Delphine, or heal his loved ones' grief and pain. The sentence I am going to impose is not a reflection of the worth or value of Mr Delphine's life. Rather, the sentence must reflect the large number of factors which judges are required by law to take into account, only one of which is the content of the victim impact statements.

24 It is necessary to consider your background in some detail, to understand how your early experiences contributed to your actions on the evening in question.

25 There is no doubt that you grew up in an environment of extreme family violence, drug and alcohol dependence, and deprivation. By the time you were 12 months old, you had come to the attention of welfare authorities. Your history is well-documented across numerous child protection and welfare reports, which specifically acknowledge the role of intergenerational trauma in your life. The challenges of your difficult upbringing have been exacerbated by your cognitive and mental health issues.

26 Your mother is a Yorta Yorta woman, and a member of the Stolen Generations. When she was only a few months old, she was placed with a non-indigenous family. The family had a patronising view of aboriginal people, and little cultural understanding. When your mother returned home as a teenager, she felt rejected by both her birth family and non-indigenous society.

27 Your mother had two children with her first partner. She subsequently met your father, with whom she had four more children. Your father was an extremely violent man throughout his relationship with your mother.

28 Your father physically attacked your mother when she was pregnant with you. You were also born with the umbilical cord wrapped around your neck, which resulted in you being born with low oxygen levels.

29 Both of your parents had substance abuse issues throughout your childhood. Your mother drank and took drugs during her various pregnancies.

30 Things were relatively calm for a period, after your father was imprisoned for attempted murder, one month before you were born. After your father was released from prison, his violence escalated, and he directed his violence towards you. He broke your bones and struck your head. You also saw your father break your mother's legs, arms and jaw.

31 Your father threatened to kill your mother if she disclosed his violence. He made the same threat to you and your siblings.

32 Your mother and the children were placed in crisis accommodation from time to time, to protect them from your father.

33 You and your siblings often went without food. That led you to start stealing food from shops, because you were hungry.

34 The individual trauma experienced by you, and the intergenerational trauma present throughout your family, led you to have disturbed and insecure attachments, an impaired ability to self-regulate when distressed, low self-esteem, and a perception of the world as a hostile place.

35 While all of your siblings were meeting developmental milestones at appropriate ages, you were not. You displayed behavioural problems in school and were emotionally fragile, with anger issues. You were often in trouble for picking fights. You had difficulty with literacy, and your communication difficulties resulted in a tendency to become frustrated and resort to verbal abuse. You regularly truanted from school. You left school at the age of 10, after failing Grade 5.

36 Your mother sought help from the Goulburn Valley Child and Youth Mental Health Service. They assessed you as having behavioural issues, and your mother as lacking rules and boundaries.

37 You were removed from your mother's care at the age of 10, and placed in residential care. None of your siblings were removed.

38 As no suitable residential options were said to be available in Shepparton, you were removed from your family, your community and your country, and placed in residential care in Melbourne. That happened despite concerns being raised by advocates and lawyers for the family. Being removed from your family was deeply damaging to you.

39 Because it was a four hour trip each way by public transport, your family were rarely able to visit you in Melbourne.

40 When you were about 10, you were sexually assaulted by an adult residential worker, while you were in the care of the Department of Health and Human Services. After that sexual assault, you began to engage in self-harm, started to experience suicidal thoughts, and spiralled downward into increasingly dysregulated, violent and hypervigilant behaviour.

41 At age 11, the police took you to hospital with lacerations. You were threatening to stab yourself. The Goulburn Valley child welfare authorities were contacted, but they refused to assess you or have any involvement with you, due to their perception of a lack of parental interest.

42 Your placement in residential care ultimately became untenable, due to your behaviour. You were placed in secure welfare on multiple occasions. Being placed in secure welfare did not reduce your risky behaviours.

43 Your first interaction with the criminal justice system was when you were 12. Your record since then includes offences relating to theft, property damage, burglary, cultivation of cannabis, driving offences, and breaches of various court orders. This is by far your most serious offending.

44 Whilst in custody, you have experienced inappropriate touching and sexual assault on a number of occasions. The first two incidents occurred when you were about 12 years old, and were being held in Parkville Youth Detention Centre for three weeks. You engaged in self-harming soon after those incidents.

45 Your continuing acts of self-harm seem to have been a way of having your emotional needs met, as you received comfort from workers who tended to your wounds.

46 You are very attached to your mother, and became agitated when you were not able to have frequent contact with her. You frequently tried to abscond from residential care to go and visit her. On one occasion, you were unable to contact your mother, because her phone was switched off. You put your foot through a glass window, which required hospitalisation and 18 stitches. You then absconded from hospital, and tried to return home to your mother.

47 The extreme violence you witnessed and experienced in your childhood led to you becoming preoccupied with a need to keep the female members of your family safe. Child protection records note that you were unable to tolerate negative behaviour towards your siblings, or disrespectful attitudes towards women in general.

48 You have a history of distrust and hostility towards child protection services. You variously ran at child protection workers with darts, locked yourself in your bedroom, climbed on the roof, or threatened to harm yourself and others.

49 Your most successful out-of-home placement was a kinship placement with your older sister in Geelong, in October 2016. Your sister managed you well, setting boundaries that you were able to comply with. A carer was employed to manage you while your sister was at work.

50 However, in December 2016, your mother's house burnt down in an accident. Your mother lost all of her possessions, and she and your younger sisters became homeless. They came to stay with you and your older sister.

51 Before long, conflict arose between your mother and your older sister in relation to setting boundaries with you, and your older sister said she was no longer able to care for you. In 2017, your kinship placement with your older sister ended.

52 In April 2019, when you were 16 years old, you were remanded and sentenced to youth detention. Whilst in custody, you were supported on a weekly basis by a mental health clinician from Orygen youth health. You were released on parole in November 2019, but absconded from an aboriginal healing centre and were returned to custody.

53 In 2019, you reconnected with Hayley, a former childhood friend. The two of you started dating the following year.

54 You were released from Malmsbury Youth Detention Centre in February 2020, when you were 16. You were provided with support from various organisations, including drug and alcohol support. Eventually, you obtained a rental unit.

55 You did not appear before the courts between August 2020 and January 2023. That was a period of relative stability for you. You and Hayley were living together, and both working picking fruit. In late 2022, you got a concreting job; you worked hard at that job, and were still doing it at the time of this offending.

56 You have received blows to the head on multiple occasions, including from your father and while in custody, which have resulted in you being rendered unconscious.

57 You were involved in two serious car accidents during your childhood. The first was when you were 12. Whilst driving a stolen car, you lost control of the car and it rolled off a cliff. The impact caused you to suffer a period of unconsciousness. Miraculously, you and the other occupants of the car all managed to escape, as the car filled with water.

58 On the other occasion, you stole a car and drove at 120km per hour, before losing control and crashing into a power pole. You were intoxicated on "ice" at the time. You lost consciousness for a period of 30 minutes, but otherwise came out of that incident uninjured. The other occupant, your friend, was badly injured in the accident, and was in a coma for four months. You have experienced guilt and frequent nightmares of that accident, in the many years since it occurred.

59 You have a long history of substance abuse. You were regularly smoking cigarettes and cannabis before you were 12. Around 14, you started regularly using ecstasy, and you tried speed on a few occasions. You then progressed to using ice and GHB on a daily basis. You have also tried a large number of other illegal or prescription drugs over the years.

60 You started drinking alcohol at 15, and were soon drinking heavily each day. You reported that you and your friends would consume three bottles of spirits between you daily.

61 You tried rehabilitation on two occasions, but quit after a few weeks. On one occasion, you had to leave the program due to being involved in a fight with another person.

62 At the time of this offending, you were using cannabis and GHB, and drinking whisky, on a daily basis. You were also using ice occasionally.

63 In a case called Bugmy,[1] the High Court acknowledged that the effects of profound childhood trauma and deprivation may compromise a person's capacity to control their impulses, and do not necessarily diminish with the passage of time. A background of that kind may also compromise a person's capacity to mature and learn from experience. That may operate in mitigation of sentence, including by reducing the offender's moral culpability to some degree.

64 There is no dispute that the Bugmy principles apply with considerable force in your case. You were raised in a family and community marred by substance abuse and extreme violence. Your values, responses and vulnerabilities were shaped by your childhood experiences. You then developed your own issues with substance abuse and impulsive behaviour.

65 They are also experiences that sit within the context of your aboriginality, historical disadvantage and intergenerational trauma. Your mother is a member of the Stolen Generations. You were removed from your mother's custody, and from your country and land. The connection between person and country reinforces Aboriginal and Torres Strait Islander peoples' identity and sense of belonging. Both your mother's removal, and your removal, have been deeply traumatic for you and your family.

66 When applying Bugmy and giving "full weight" to "deprivation" it is important to do so from a strengths-based perspective. It is important that courts do not frame deprivation in ways that are divorced from the continuing strength inherent in belonging. You are a proud Yorta Yorta man. It is clear that your connection to your family and your culture is very important to you and that, despite being removed from your mother's custody and placed in out-of-home care, you never lost your love for culture, your family and your community. You have maintained your connection to culture through engaging with elders, with mentors, and with aboriginal organisations such as the Rumbalara Aboriginal Cooperative. More recently you have engaged with the aboriginal liaison officer in custody, and sought to be transferred to the Koori unit at Ravenshall.

67 I turn now to discuss your cognitive and mental health issues. For the purposes of sentencing, you were assessed by clinical psychiatrist, Dr Nina Zimmerman, and neuropsychologist, Ms Laura Scott.

68 Ms Scott assessed your full scale IQ as being 78, which is within the borderline range. Your low intellectual functioning is reflected in the records from your previous incarceration at Parkville, where it was noted that, at 15, you were not able to read a consent form or write your name.

69 Your neuropsychological profile meets the guidelines for Foetal Alcohol Spectrum Disorder ("FASD"), as well as the criteria for Attention Deficit Hyperactivity Disorder ("ADHD"). FASD and ADHD are neurodevelopmental disabilities. They are permanent, lifelong conditions. While symptoms may diminish in severity, or change in nature as a child matures, they do not resolve totally. However, people with FASD and ADHD can benefit from access to appropriate multidisciplinary treatments including medications, allied health therapies and psychosocial interventions.

70 Due to your FASD and ADHD, you present with reduced levels of intellectual functioning, especially for verbal information. You have greater difficulty than your peers in comprehending information and fully understanding all that you hear. You are extremely restless and pressured in your thinking, very rigid, and have difficulty considering alternative viewpoints or courses of action. You are likely to make impulsive choices without fully considering your options, and your impaired planning means you struggle to anticipate the likely outcome of a given choice. Your thinking is quite disorganised and piecemeal, that is, you tend to focus on small elements of the situation rather than taking in the bigger picture. Overall, these impairments seriously undermine your decision making ability, and render you more likely than others to make rushed, impulsive choices in the heat of the moment.

71 Ms Scott expressed concern about the fact that, for almost a decade, your complex neuropsychological and behavioural problems were observed by others, but not properly assessed. It is regrettable that it took this offending for you to be formally diagnosed with FASD and ADHD. Consequently, you have not received the kind and level of support appropriate to address your various conditions.

72 According to Ms Scott, your cognitive functioning is exacerbated by your limited educational attainment, your history of trauma, and the intergenerational trauma you experience as an aboriginal person.

73 Dr Zimmerman diagnosed you as currently suffering from chronic post -traumatic stress disorder. She noted that your other conditions - substance abuse disorder, and depression with suicidal ideation - are both currently in remission, and are best understood as arising from the impacts of chronic trauma.

74 She said that your PTSD has left you with little ability to regulate your emotions, including anger. Witnessing violence against your mother left you with a preoccupation with ensuring the safety of females in your family. She also noted the possibility that you were affected by cannabis or other illegal drugs at the time of offending, which would have further impaired your impulse control.

75 Your impulsivity, behavioural disinhibition and poor judgment were manifest at the time of this offending. Your cognitive impairment and PTSD reduced your capacity to exercise appropriate judgment, make calm and rational choices, think clearly, and appreciate the wrongfulness of your actions.

76 Yours is a case where the principles of both Bugmy and Verdins apply. The Court of Appeal in Herrmann[2] noted that in some cases the two principles are closely related, and may converge for the purposes of mitigating a sentence.

77 Your age and maturity is another relevant matter in sentencing you. Although you were 19 at the time of the offending, your cognitive impairment means you were and are far less mature than your chronological age.

78 Different sentencing principles apply to young offenders, and different sentences are imposed on them, in recognition of the fact that they are less mature, less able to form moral judgments or control their impulses, and less aware of the seriousness and consequences of their actions. That is especially so in the case of offences committed impulsively, such as this one.

79 The law says that the youth of an offender should be a primary consideration for a sentencing court, where the matter properly arises. In the case of such an offender, rehabilitation is usually more important than general deterrence; rehabilitation benefits the community as well as the offender. There is a significant public benefit in rehabilitating a young offender, and maximising the prospect that they will go on to live a peaceful, productive and law-abiding life.

80 However, those principles are not absolute; due regard must be had in each case to other relevant matters, including the seriousness of the offending, and whether there has been any prior offending. Generally speaking, the more serious the offending, the less the weight to be attached to youth. But the mitigatory effect of youth will be extinguished only in circumstances of the gravest criminal offending, and where there is no realistic prospect of rehabilitation.

81 The prosecution described this as an instance of "vigilante justice", to which the principles of denunciation and general deterrence have particular application. Courts have repeatedly said that people should be deterred from taking the law into their own hands, and trying to punish other people who they perceive have done something wrong.

82 In many cases of so-called vigilante justice, offenders have pre-planned some form of violent punishment or retribution for a perceived wrong. Frequently, that involves inflicting protracted violence against the victim, often in company with others. In contrast, your offending was swift and entirely spontaneous, and occurred in the following context.

83 You had witnessed how distressed your mother and sister were as a result of Mr Delphine's behaviour towards your sister. You were not the only person to suspect Mr Delphine of engaging in inappropriate behaviour towards young girls. Some months before this offending, the police had received complaints from four other girls about Mr Delphine's alleged inappropriate behaviour in girls' toilets. You were aware of those other allegations. It is important to stress that Mr Delphine was not charged or convicted of any offences. If he had engaged in any unlawful conduct, that was a matter for the police to investigate and, if appropriate, to charge. Mr Delphine did not deserve to be attacked or killed.

84 However, your early exposure to severe family violence and sexual abuse made you overly protective towards your sisters and mother. Combined with your immaturity, and your cognitive and mental health challenges, when you were confronted unexpectedly by somebody who you genuinely believed had demonstrated inappropriate sexual interest in your underage sister, your ability to think rationally and control your emotions in the heat of the moment was severely impaired. That explains, but does not excuse, your behaviour.

85 In assessing an offender's "moral culpability", the sentencing court is making a moral judgment on behalf of the community about the degree of blameworthiness to be attached to the offender for the offending conduct. Determining how harshly a particular offender is to be judged - and punished - often requires a close examination of the personal circumstances and background of the offender, and an exploration of factors which may explain the offending conduct. To the extent that offending conduct can be seen to reflect the operation of factors which are beyond the offender's control, the harshness of the moral judgment is likely to be moderated.

86 Your youth, and the matters that give rise to the Bugmy and Verdins principles, reduce your moral culpability. They also make you an inappropriate vehicle for anything other than very moderate general and specific deterrence.

87 There is an additional reason why general deterrence has little role to play in your case:

It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by a rational calculation of the consequences in this conduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion.[3]

88 It is not disputed that the ordinary burden of custody weighs more heavily on you, due to your PTSD and your cognitive limitations. Although your cognitive limitations are unlikely to be impacted by imprisonment, your depression and PTSD could deteriorate. Your medical history shows chronically-elevated risks of suicide and self-harm in custody.

89 This is your first time in adult prison. According to Ms Scott, your reduced level of cognitive function, your impulsivity and poor decision making, would all contribute to lowering your capacity to cope with the pressure in an adult prison, and increase your vulnerability to external influence.

90 I also accept that imprisonment will weigh more heavily upon you because your mother has complex and serious health issues. She has not been able to visit you in custody because of her health, and because she does not have a car. You are preoccupied by the fear that your mother will die while you are in custody, and that you will not be able to attend her funeral or attend to sorry business. While you have been in custody, one of your aunties died; you were not allowed to attend her funeral, which caused you significant distress.

91 I also accept that you feel particularly vulnerable in custody. Despite your documented history of sexual abuse in custody, and your request to be placed in a single cell, you have been placed in a cell with another adult male.

92 You were originally charged with murder. After the charge was reduced to manslaughter, you pleaded guilty to that charge before the first committal mention. I accept that this is a plea made at the earliest opportunity.

93 You are entitled to a discount on the sentence to be imposed upon you in recognition of your guilty plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of what would have been a very distressing trial for witnesses, and for the family and friends of Mr Delphine.

94 In addition to any remorse which is inherent in your early plea, I accept that you are genuinely remorseful. Shortly after the offending, you made full and frank admissions to police in your record of interview, and told them that Mr Delphine did not deserve what happened. You have continued to demonstrate remorse in various ways since then.

95 You have reasonable prospects of rehabilitation, if you are given adequate treatment and supports to address your complex needs. Rehabilitation is important to your future, as well as benefitting the community.

96 You have spent your time in custody productively, working in the laundry, using the gym and playing cards. You have engaged productively with the aboriginal liaison officer.

97 You have a loving partner, family and community, who will support you in custody and upon your release. Notwithstanding your background of extreme disadvantage, your prior offending, and your cognitive and mental health challenges, you have already demonstrated a capacity to work hard and get your life back on track, during the period of more than two years in which you did not appear before the courts.

98 Dr Zimmerman advised that you need long-term, specialist trauma counselling. Ms Scott also made an extensive number of assessment and treatment recommendations. Some counselling and treatment may be made available in custody, albeit in a more limited form than in the community. Ms Scott further recommended that you be provided significant integrated and culturally appropriate support when you are released, in order to maximise your prospects of rehabilitation.

99 I accept that yours is a case that calls for the exercise of mercy, to reflect the underlying sense of humanity which guides proper sentencing. Appellate courts have long accepted that justice and humanity walk together. In this way, mercy is of the very essence of justice. However, mercy must be exercised upon considerations which are supported by the evidence, and which make an appeal not only to sympathy, but also to well-balanced judgment.

100 Balancing all the factors as best I can, for the manslaughter of Bjorn Delphine, I sentence you to 6 years' imprisonment. This will be the head sentence.

101 For trafficking in a drug of dependence, I sentence you to 3 months' imprisonment. I order that that sentence be served wholly concurrently with the head sentence.

102 That makes a total effective sentence of 6 years.

103 I agree with both counsel that this is an appropriate case in which to set a shorter than usual period before you become eligible for parole. That is to enable you to receive appropriate treatment and support, and to learn to live as an independent, law-abiding adult, in the community and under the supervision of the Adult Parole Board.

104 I fix a period of 3 years and 6 months as the time you must serve before you become eligible for parole.

105 But for your plea of guilty, I would have sentenced you to a total effective sentence of 8 years with a non-parole period of 5 years and 6 months.

106 Further, I declare that the period to be reckoned as already served under this sentence is 378 days, not including today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

107 I have also made the disposal order sought by the prosecution.

[1] Bugmy v R [2013] HCA 37; (2013) 249 CLR 571.

[2] DPP v Hermann [2021] VSCA 160.

[3] Munda v Western Australia (2013) CLR 600, 54_._