DPP v Atkinson [2026] VCC 32

1. The Summary of Prosecution Opening for Plea dated 25 November 2025,[8] to which you agreed, sets out the circumstances of your offending against three random road users unknown to you.
2. On 11 April 2025 at about 3:00am, you were walking north on St Kilda Rd, St Kilda, as Mr Drayton was sitting in the driver's seat of his stationary Mitsubishi vehicle.
3. You approached the unlocked passenger side door of his vehicle and knocked on the window. You stated, "Let me in. Let me in mate," before opening the door and getting into the passenger seat. You stated, "Drive mate, drive mate," but Mr Drayton, feeling scared, refused and got out of his vehicle. You got out of the passenger seat and ran around to the rear of the vehicle towards the driver's side, holding a glass bottle in your right hand.
4. You smashed the bottle on the road and held it up to Mr Drayton in a threatening manner. Mr Drayton, fearing he could be stabbed or hurt by the broken bottle, ran to the passenger side and removed his belongings from the car. You got into the driver's seat and drove north on St Kilda Road at a fast rate of speed, and that constitutes charge 1 of aggravated carjacking.
5. At about 5.20am, later in the same morning, you drove the stolen Mitsubishi south on Plenty Road, South Morang, at about 80km/h. As you approached the red light at the intersection of Lakes Boulevard, Mr Pannunzio was stopped in his white Toyota Hilux.
6. You collided with the rear of Mr Pannunzio's vehicle, pushing it into the rear of the vehicle in front of him. The force of the collision caused head and facial injuries to Mr Pannunzio which produced a significant amount of bleeding. Mr Pannunzio was taken to hospital where he spent two days and underwent plastic surgery to repair a cut on his nose and to repair a damaged nerve. That constitutes summary charge 5, unlicenced driving; and summary charge 6, drive in a manner dangerous.
7. The stolen Mitsubishi was extensively damaged in the collision. After the collision, you got out of that vehicle and fled the scene on foot, which constitutes summary charge 7, fail to render assistance after an accident.
8. The collision was observed by Mr Al-Aboodi, who was driving south on Plenty Road, behind you in his Volkswagen Golf. Mr Al-Aboodi stopped and got out of his vehicle to assist Mr Pannuzio. In his haste, he left his keys in the ignition and the engine running. As he did so, you got into Mr Al-Aboodi's Golf and drove off at speed. That constitutes charge 2 of theft.
9. Mr Al-Aboodi reported his stolen vehicle to attending police.
10. At approximately 6:10am, you were observed driving at a fast rate of speed in the stolen Golf. You collided with a power pole, causing extensive damage to the vehicle, and that constitutes part of summary charge 5 of unlicenced driving; and also part of summary charge 6, drive in a manner dangerous.
11. After this collision, you got out of the Golf and ran towards a nearby tram terminus where you were subsequently arrested.
12. You were released on bail on 25 March 2025 and failed to appear on that bail on the next day which constitutes summary charge 11 of failure to answer bail.

1. Mr Atkinson, your offending was inherently serious and caused significant damage to multiple victims' vehicles. The victim of your aggravated carjacking was vulnerable as he was alone in his car in the early hours of the morning. When he refused to comply with your demand for him to drive, you significantly escalated your offending by threatening him with a smashed bottle.
2. Your subsequent driving was erratic and dangerous. You collided with one vehicle causing significant injuries to the driver and subsequently drove at speed until you collided with a second vehicle and ultimately had a collision with a power pole.
3. However, your offending was impulsive and lacked the hallmarks of pre-planning. You did not attend the scene of the aggravated carjacking armed with a weapon, and your use of the broken bottle was limited to holding it up in a threatening manner for a short period of time.
4. It is worthy to note that you callously took advantage of the situation presented by the acts of the good Samaritan, Mr Al-Aboodi, by stealing his car when he went to the aid of Mr Pannunzio. This increases your moral culpability for that offending.
5. No victim impact statements were received. However, Mr Drayton told police that he felt scared and feared he would be stabbed. There is no doubt that the offending would have been a frightening experience for him. I note also that Mr Pannunzio required surgery for facial injuries he sustained in the collision.

1. Mr Atkinson, you are 31 years of age now. You are a Yorta Yorta man on your mother's side and a Barkindji man on your father's side. You proudly express a strong identity with your Aboriginal heritage.
2. You were born and raised in Melbourne. At the time of your birth, your mother was a teenager and struggling with drug and alcohol misuse. You were placed in the care of your maternal grandmother in the first few weeks of your life and raised by her and her partner, along with your maternal uncles.
3. You were exposed to alcohol misuse and violence in your home and community from a young age. When you were eight years old you witnessed your grandmother giving first aid to a person who had been stabbed in the head. You also witnessed her relapse into alcohol misuse after years of abstinence, following her partner's death.
4. You were subsequently removed from your grandmother's care at the age of 15 years. You were exposed to drug use while in the child protection system and soon began to misuse substances. Eventually, you were put back into the care of your mother, who was using heroin at the time, and you too began to use heroin regularly.
5. You started smoking cannabis in Year 7 and smoked daily until about 18 years old. You began drinking alcohol and using heroin at 16 and used the drug daily from about the age of 19 onwards. You first tried methamphetamine at age 19 and prior to your incarceration you used this drug approximately twice a week, both smoking and injecting. You have also tried other drugs such as GHB, opioids and benzodiazepines on limited occasions.

1. You attended school up until Year 10. Your engagement with school began to deteriorate around Year 7, and you were ultimately expelled in Year 10 after fighting with another child. When you were about 14 or 15 years old, you experienced the loss of two of your close friends in a motor vehicle accident, after which your school engagement and behaviour became increasingly problematic.
2. You have a history of asthma, heart murmur, Hepatitis C and HIV infection. You have lost consciousness multiple times following head injuries.
3. You have a chronic history of mental illness which was initially characterised in adolescence as Oppositional Defiant and Conduct disorders requiring treatment with antidepressant medications. You were diagnosed with depression and anxiety at age 19. You present currently with severely elevated symptoms of depression and anxiety.
4. Neuropsychologist, Ms Laura Scott, describes your neuropsychological profile as "complex and multifactorial." Ms Scott opines that your condition is likely exacerbated by your HIV infection.[9]

1. You indicated your intention to plead guilty at the earliest opportunity, and I take the utilitarian value of your plea into account.

1. Your plea of guilty is an indication of your remorse which is backed up by your words to Ms Scott. You told her: "I feel pretty ashamed of myself and my actions."[10]
2. Your offending took place while you were a visitor on Wurundjeri land. You have acknowledged that your actions were disrespectful and accept that this offending has brought shame to yourself, the Yorta Yorta and Barkindji communities, as well as the wider Aboriginal community.

1. Mr Atkinson, you elected to have your matter heard in the County Koori Court. It is to your credit that you participated in the Sentencing Conversation with Uncle Jim Berg and Aunty Annette Xiberas, as this is a voluntary process. Your Aunty Tracey and friend Justin joined in the conversation.
2. The shaming which occurs during the sentencing conversation and the inability for you to "hide behind counsel" due to your active participation in the Koori Court process has been accepted as a mitigatory factor by the Court of Appeal.[11] I have regard to the factors discussed by the Court of Appeal in the case of Honeysett[12] regarding the weight which should be attached in sentencing to an offender's participation in Koori Court.
3. However, I do note that you have previously participated in Koori Court on a number of occasions and it has not deterred you from further offending.
4. During the Sentencing Conversation, you acknowledged the seriousness of your offending and did show insight into the effects your actions have had upon the victims. You showed genuine remorse and apologised to your victims and their families and described how it must have been very frightening for them to see you whilst you were drug affected. You discussed your goal to "give something back to the community," possibly through a career in horticulture. You said that working with an Aboriginal Co-operative would be a great opportunity but said that you felt pretty scared talking to people. I congratulated you during that conversation for confronting your fears and speaking frankly during your sentencing conversation.
5. You also expressed a desire to move away from negative influences in Melbourne when you are released from custody.
6. Uncle Jim and Aunty Annette challenged you, and you were respectful towards them, and participated genuinely in the Sentencing Conversation. Participation in the Sentencing Conversation is very challenging, and with the Elders' assistance, and with your Aunty Tracey's input, you identified that the key factor which contributes to your re-offending is that you find it very difficult to establish a routine when you are released from prison. A goal for your rehabilitation is to set up suitable structures, such as are available through the NDIS, prior to your release, so that you are better supported in the community upon your release.
7. I will now turn to consider some other factors which apply in sentencing you, Mr Atkinson.

1. Ms Scott, the neuropsychologist, reports that your experiences of childhood trauma and adversity likely undermined your ability to develop psychological skills throughout childhood and adolescence. She says:[13]

"He presents with a constellation of associated cognitive, emotional and behavioural impairments that have had a significant impact on his life trajectory to date."

2. I take into account the fact that you have experienced significant disadvantage in your life from a very young age, and I accept that the principles in Bugmy's case[14] should be given weight to reduce your moral culpability for this offending. You experienced this disadvantage within the context of your Aboriginality and the historical disadvantage and intergenerational trauma experienced by First Nations people more generally. The effects of a deprived background do not diminish over time and should be given full weight in the determination of an appropriate sentence.

1. I will consider the impact of your cognitive impairment in greater detail below. However, in short, your mental functioning was impaired at the time of your offending. However, you committed these offences when substance affected, and you had not slept for a number of days. Again, Ms Scott, the neuropsychologist, opined:[16]

"Mr Atkinson's mental illness and associated cognitive, emotional and behavioural impairments were likely significant contributors to his offending behaviour. His choices to steal multiple vehicles appeared impulsive and poorly considered... The effects of intoxication with methamphetamine would have exacerbated Mr Atkinson's underlying difficulties with impulsive and disorganised behaviour."

2. Your lawyer, Mr Mazzone, submits that Limbs 1,3,5 and 6 of the case of Verdins are enlivened.
3. The prosecution concedes that given your combined cognitive deficits there is a modest basis for the application of Limbs 1 and 3, in that the weight to be placed upon denunciation and general deterrence ought be reduced. I accept that your intoxication exacerbated your pre-existing impulsive and disorganised behaviour, and consequently the reduction in your sentence will be modest.
4. The prosecution concedes that because of your combined cognitive deficits, the sentence will also weigh more heavily upon you than it would upon a person in normal health (Limb 5), and I accept the application of Verdins in relation to that limb also.
5. There is no evidentiary basis, in my view, however, which would permit a conclusion that there is a serious risk of imprisonment having a significant adverse effect on your mental health, and therefore find that Limb 6 does not have application in your case.

1. Ms Scott also notes you received very little treatment and support across your life, and your childhood development was interrupted due to very significant trauma and adversity.[17] You have now spent considerable periods of your adult life in custody and have repeatedly relapsed into substance use following release from prison. You are at risk of becoming institutionalised, and struggle to find structure in your life when you are released from prison.
2. You spoke about your goals to "do better this time" during your Sentencing Conversation and have a plan to move locations and aspire to work in horticulture. You have completed several programs whilst in custody and have been in contact with the NDIS to prepare a plan for your release. You have also prepared an impressive portfolio of paintings whilst in custody. Unfortunately, given your age, history of drug use and previous relapses, your prospects of rehabilitation remain guarded. Whilst the emphasis to be placed upon rehabilitation in the sentencing synthesis will be moderated, I do consider there is hope for your rehabilitation with appropriate supports upon your release, and I find that it is not entirely extinguished.

1. Mr Atkinson, you have a lengthy criminal history. Relevantly, it includes multiple counts of armed robbery, robbery, intentionally causing injury, recklessly causing injury, unlawful assault, make threat to kill, as well as firearms offending, and you have participated in the County Koori Court on at least two previous occasions.
2. Various sentences for armed robbery have not deterred you from offending again in a similar manner, and therefore specific deterrence has a significant role to play in your sentencing.
3. Unfortunately, your risk of reoffending remains high.
4. Given your long-standing history of drug abuse and endangering the community through your violent and dangerous offending, protection of the community is a predominant sentencing consideration.
5. Aggravated carjacking is a Category 1 offence under the Sentencing Act 1991 (Vic).[18] That means that, unless a "special reason" exists, a court must impose a term of imprisonment and fix a non-parole period of not less than 3 years,[19] with a head sentence of not less than 6 months greater than the non-parole period.[20] This effectively means that, unless a "special reason" exists, I must sentence you to a term at least 3 and a half years in prison.

1. The Sentencing Act defines what qualifies as a "special reason" and specifies what the Court may, and may not, take into account in deciding whether a "special reason" exists.[21] The statutory regime sets a high hurdle which will not often be surmounted.
2. Your lawyer, Mr Mazzone, submits that three factors, either alone or in combination constitute a "special reason" in your case. I will examine each in turn.

a. On 11 April 2025 did you have an impaired mental functioning that was causally linked to the commission of the offence and substantially and materially reduced your culpability?[22]

1. Firstly, any impaired mental functioning must not be caused substantially by self-induced intoxication.[23]
2. Following her extensive interview, testing and review of your condition, Ms Scott opined that you presented with significant depressive symptoms and anxiety, but did not present with a profile typical of a major neurodevelopmental disability, nor did your profile suggest traumatic brain injury. She opined that whilst HIV infection is known to produce cumulative damage to brain tissue and function, any resultant cognitive impairment will be greater for individuals, such as you, who have poor medication compliance, mood disorder, substance abuse issues and Hepatitis C infection.[24] Indeed Ms Scott observes the periods you have spent in custody would have had a protective effect on your brain function.[25]
3. Ms Scott concludes that your experiences of childhood trauma and adversity likely undermined your ability to develop psychological skills through childhood and adolescence. She opines that you present with a constellation of associated cognitive, emotional and behavioural impairments that have led to a significant impact on your life trajectory to date such that you were more vulnerable to engaging in risky behaviours as an adolescent. She opines that these vulnerabilities would have reduced your capacity to regulate these behaviours and have increased your risk of descending into a longer-term pattern of addiction and crime.
4. Ms Scott concludes that from a neuropsychological perspective, your mental illness and associated cognitive, emotional and behavioural impairments were likely significant contributors to this offending behaviour. Your choices to steal multiple vehicles appeared impulsive and poorly considered, your driving behaviour was erratic and poorly planned resulting in multiple accidents and injury. However, she concluded that the effects of intoxication with methamphetamine would have exacerbated your underlying difficulties with impulsive and disorganised behaviour. She also opined that your chronic history of mental illness has been a significant factor in the maintenance of your substance misuse.
5. On the balance of probabilities, I conclude that whilst your impaired mental functioning on the day of your offending was worsened by drug use and sleep deprivation, it was not caused substantially by self-induced intoxication and therefore constitutes a "special reason" for the purposes of the Act.

b. Does your impaired mental functioning result in you being subject to substantially and materially greater than ordinary burden or risks of imprisonment?[26]

1. Ms Scott opines that cognitive, emotional and behavioural symptoms attributable to your childhood trauma and chronic mental illness make you more vulnerable in custody to rapid escalation and conflict with others. On the flip side, your mental and physical health is better managed in custody through access to stable housing, regular meals and regular medications. However, whilst in custody, you cannot access relevant therapeutic interventions available to you via your NDIS plan which are aimed to provide a similar structure in the community and avoid the risk of institutionalisation.
2. I am satisfied that your impaired mental functioning results in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.

c. Are there substantial and compelling circumstances that are exceptional and rare in your case?[27]

1. Mr Atkinson, as a matter of law,[28] in determining whether there are substantial and compelling circumstances, the court -

(a) must have regard to the Parliament's intention that a sentence of imprisonment should ordinarily be imposed and that a non-parole period of not less than 3 years should ordinarily be fixed for the offence of aggravated carjacking; and

(b) must have regard to general deterrence and denunciation of your conduct as having greater importance than other sentencing purposes; and

(c) must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence; and

(d) must not have regard to prior good character or prospects of rehabilitation.

1. In relation to the third ground you rely upon, in the case of DPP v Lombardo,[29] the Court of Appeal helpfully considered what is to be considered by the Court in an inquiry under s 5(2H)(e).
2. Their Honours elaborated that "exceptional and rare" has a "meaning closer to out of the ordinary,"[30] or "outside the run of the mill factors typical of the relevant kind of offending."[31]
3. Your lawyer, Mr Mazzone, submits that this test is satisfied by the following factors in combination:

(i) Your Aboriginality and the extreme hardship and trauma you experienced as a child, which is unfortunately consistent with intergenerational trauma experienced by First Nations people, has had a deleterious effect on your development;

(ii) Your long history of mental ill-health and concomitant effect of HIV infection; and

(iii) The enlivened principles in Verdins and Bugmy which, when assessed against the background of your formative and personal factors, operate to significantly reduce your moral culpability.

1. In your case, Mr Atkinson, considered in combination, the relationship between all of these factors forms a substantial and compelling circumstance which is also exceptional and rare and is wholly outside of the run of the mill.
2. In conclusion, I am satisfied on the balance of probabilities that you meet the test for a "special reason" for this offence, on each of these three bases, notwithstanding the serious nature of your offending. This conclusion justifies a departure from mandatory sentencing requirements as set out at s 10AD Sentencing Act.[32]
3. In sentencing you, Mr Atkinson, I do take into account the relevant sentencing principles referred to in s 5 of the Sentencing Act 1991 (Vic)[33] and current sentencing practices for the offences to which you have pleaded guilty.
4. Your offending took place over a three-hour period, Mr Atkinson. While each offence is properly distinct, it does form part of the same course of offending. Accordingly, I have afforded significant cumulation to your later offences to give effect to the principle of totality.
5. Notwithstanding the conclusion I have reached about the existence of a "special reason", your offending is serious, Mr Atkinson. A substantial head sentence with a non-parole period is unavoidable, despite the powerful mitigatory factors which will operate to reduce the sentence I will impose. General deterrence and denunciation remain highly relevant sentencing considerations for the offence of aggravated carjacking. Given the violent and dangerous nature of your offending, community protection also remains relevant. Given your prior criminal record and prospects of rehabilitation, specific deterrence is also a significant factor to be considered and weighed in the overall sentencing synthesis.

Section 6AAA Statement:

1. Mr Atkinson, you will serve 2 years and 3 months before becoming eligible for release on parole.

1. Pursuant to s 18 of the Sentencing Act 1991,[34] the period of 292 days of pre-sentence detention, not including today, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the Court records.

Section 6AAA Declaration

1. Pursuant to section 6AAA of the Sentencing Act 1991,[35] I indicate that had you pleaded not guilty and been found guilty after the trial, I would have sentenced you to a term of 5 years and 6 months' imprisonment with a non-parole period of 3 years and 8 months.

1. On charges of aggravated carjacking and drive manner dangerous, you are disqualified from driving in the State of Victoria for 24 months for each charge, effective from today's date. These disqualification periods are to be wholly concurrent upon each other.

[1] Crimes Act 1958 (Vic), s 79A.

[2] Ibid, s 74.

[3] Road Safety Act 1986 (Vic), s 18.

[4] Ibid, s 64.

[5] Ibid, s 61(1)(b).

[6] Bail Act 1977 (Vic), s 30(1).

[7] Criminal Record of Brett Atkinson, as at 9 December 2025.

[8] Summary of Prosecution Opening on Plea dated 25 November 2025.

[9] Laura Scott, Neuropsychological Report Re Brett Atkinson (31 October 2025) 11.

[11] R v Morgan [2010] VSCA 15; (2010) 24 VR 230.

[12] Honeysett v R [2018] VSCA 214.

[13] Laura Scott, Neuropsychological Report Re Brett Atkinson (31 October 2025) 12.

[14] Bugmy v the Queen (2013) 249 CLR 571.

[15] R v Verdins & Ors [2007] VSCA 102.

[16] Laura Scott, Neuropsychological Report Re Brett Atkinson (31 October 2025) 13.

[18] Sentencing Act 1991 (Vic), s 3.

[19] Ibid, s 10AD(1).

[20] Ibid, ss 10AD(1), 11(3).

[21] Ibid, s 10A.

[22] Ibid, s 10A(2)(c)(i).

[23] Ibid, s 10A(2A) provides that s 2(c)(i) does not apply in these circumstances.

[24] Laura Scott, Neuropsychological Report Re Brett Atkinson (31 October 2025) 11.

[26] Sentencing Act 1991 (Vic), s 10A(2)(c)(ii).

[27] Ibid, s 10A(2)(e).

[28] Ibid, s 10AD.

[29] DPP v Lombardo [2022] VSCA 204, [65-67].

[32] Sentencing Act 1991 (Vic), s 10AD.

[33] Ibid, s 5.

[34] Ibid, s 18.

[35] Ibid, s 6AAA.