Director of Public Prosecutions v Harding
[2020] VCC 1229
•12 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
CR 19-02293
CR-20-00318
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW HARDING |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Geelong |
DATE OF HEARING: | 22 July 2020 |
DATE OF SENTENCE: | 12 August 2020 |
CASE MAY BE CITED AS: | DPP v Harding |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1229 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Guesdon | Office of Public Prosecutions |
For the Accused | Mr M. Cookson | Victoria Legal Aid |
HIS HONOUR:
1Andrew Harding, you have pleaded guilty to seven criminal offences arising from two separate events; one on 11 and 12 May 2019 and the other on 24 July 2019. Four of those offences are on an indictment and three are summary matters transferred to this court.
2I am dealing first with the crimes committed on 11 and 12 May 2019. At that time, your parents were overseas. Your brother was looking after the family home in Lara while they were away. You and your parents were estranged. Your parents had not permitted you to be at their house for some time.
3Despite this, your brother invited you to the home on 10 May 2019 to socialise with him and others who he invited around. You slept there overnight.
4On 11 May, your brother left to go to another party. He made you leave at the same time that he did and he ensured that the house was locked. Your brother stayed away until the next day, 12 May 2019. When he returned, he discovered the house had been burgled. What had occurred was that after your brother left, you returned, broke in and stole items from your parents.
5Of significance however was that you organised some unknown associates to assist you in stealing your father's gun safe containing five firearms. Stealing firearms is a very serious crime with a maximum term of 15 years; longer than that for the theft of any other item.
6The dangers of firearms being unregulated in the criminal community was borne out in this case. I was told by the prosecution that one gun was used in a suicide, one was found in the premises of a Justin Mills, a man that is awaiting committal. One other was located with a man called Sinclair. I have recently dealt with this Sinclair on other unrelated crimes not involving firearms. He has a long criminal history. Finally two guns remain at large in the community.
7Crimes of this kind are very concerning to members of our community and what is required of the courts is to impose firm sentences so as to deter others and denounce this criminality that creates such risks.
8Breaking into your parents' home in the circumstances of your ban or even being there at the house reveals a cavalier and concerning attitude. I will return to this aspect of the case later.
9You were arrested for those crimes on 19 June 2019. You were carrying a knife and had pleaded guilty to the possession of a controlled weapon. When interviewed by the police, you falsely denied the burglary and theft. You were released on bail. You were therefore on bail when you committed the next set of crimes.
10On 24 July 2019, you turned up unannounced at the home of an acquaintance; a man who had been a neighbour some years before. This man, the victim, had not seen you for some time and did not understand why you had turned up out of the blue. It is important to understand that the victim was a vulnerable man with cerebral palsy.
11After remaining with the victim for a number of hours, you asked him to drive you to another friend's house to pick up a car. The victim generously agreed to drive you and you directed him along the Barwon Heads Road past the Armstrong Creek Estate. You then directed him to turn off the Barwon Heads Road onto Lake Road. Lake Road is a small isolated country road.
12You asked the victim to stop so you could telephone the friend who you said had the car. It was about 9.40 at night. As the victim pulled up, you launched a violent surprise attack upon him. First you grabbed him with both hands around his neck yelling, 'Get out of the fucking car or I'll stab you'. As these chilling words were said, the victim could feel something cold against his neck. You then punched him in the neck and jaw. There was a struggle over the keys. You overwhelmed the victim taking the keys though the ignition key broke in the struggle. You then threw his other keys away on the side of the road and drove off thus stealing his car.
13The victim was left on the side of the road. He gathered himself up and ran towards a house. It was there he was able to get some help and the police were called. The victim suffered cuts and abrasions and bruising to his chin and jaw. What has been more significant is the psychological impact upon him.
14In his victim impact statement, he wrote that,
'Since being a victim of an aggravated carjacking, I have not felt safe in my own home. I've been paranoid of being attacked again and as a result drifted away from friends.'
15He says he no longer know who 'I can trust'. He has trouble sleeping and has experience nightmares frequently. He now has to see a psychologist due to his extreme depression and anxiety.
16After attacking the victim, you drove the stolen car north up the Hume Highway. Ultimately you were arrested asleep in a now-damaged car at a rest stop near Benalla.
17You were charged with the crime of aggravated carjacking. This is a relatively new offence. It carries the very substantial maximum term of 25 years' imprisonment. It is a Category 1 offence which requires a sentence of imprisonment to be imposed. There is no exception or other sentencing options available.
18Further a minimum non-parole period of at least three years must be imposed unless special reasons as defined exist. The head sentence must be at least six months more than the non-parole period. This minimum non-parole period is a yardstick in the overall sentencing process that remains firmly based on the common law principles of instinctive synthesis.
19In assessing the gravity of these crimes, the facts and circumstances of what you did to commit the aggravated burglary makes it clear that it is a serious example of that offence. What stands out is your attack on the particularly vulnerable victim who was simply helping you out. He trusted you and you exploited that trust. You had him drive onto a relatively isolated country road and you left him injured to fend for himself as you drove off in his car. Your attack was frightening, violent and accompanied by threatening words.
20You were on bail at the time for the burglary and theft of the firearms. The earlier burglary and theft offences themselves were brazen and, as noted, involved five firearms disappearing into the criminal community. Other men were organised or arranged by you to be involved. There was a degree of organisation and planning once you had the opportunity arise when you knew that there was no one in the house.
21All the offences involved a high degree of moral culpability. The burglary of your parents' house has adversely affected your mother and she wrote in her victim impact statement that her stress levels were very high as a consequence of learning what was taken from her home.
'It caused a great deal of worry for me as I was thinking, what if these end up in the wrong hands.'
22She stresses, as the weeks went by, she was not sleeping, every noise sent her into a panic. She was a mess.
'There was no choice [she said] but to move houses which caused expense I couldn't really afford. The whole experience has changed me and I can't trust anyone.'
23As to your own personal circumstances, you are now 26. You were born and raised in the Geelong area. You have two brothers. As it is clear from the facts and circumstances of the burglary, your parents are together but you are estranged from them. Your account of your upbringing as provided to the psychologist, Mr Cummins, and to your lawyers differs from that of your mother who learned of your version as she listened to the plea. She provided a sworn contrary statement after the plea.
24Controversy surrounding your version of your upbringing was in effect negotiated between the parties. It seems what is agreed is that on the basis of what you say happened in your childhood, you have developed post-traumatic stress disorder. That was the opinion expressed by Mr Cummins as set out in his two reports.
25The prosecution in the end do not take issue with Mr Cummins' opinions regarding post-traumatic stress disorder. Your version was that you were subjected to a dysfunctional upbringing and sexual abuse as a child at the hands of an unnamed aunt. I am not asked to make findings in respect to the causes of your post-traumatic stress disorder. Rather, for sentencing purposes, it was submitted that this condition makes your incarceration more onerous and the condition may be exacerbated by your incarceration.
26I will return to your experience in custody shortly.
27I make clear that I have read in detail the two reports of Mr Cummins and the report from headspace as to your attendance on a general practitioner, Dr Dalgliesh, on a single occasion being 25 January 2012 when you were 18. Dr Dalgliesh wrote in the notes that is contained in the letter from headspace the following,
'Andrew was an 18-year-old man currently living with friends in Whittington. Andrew was referred to headspace by an AOD [or alcohol and drugs] counselling service. Andrew reports a long history of anger problems and heavy cannabis consumption. Andrew reports a long history of physical and emotional abuse and seems to live a chaotic and often violent environment. Andrew presents as extremely restless and fidgety and states that he uses cannabis to help him calm. Andrew presents with symptoms of depression and anxiety and reports ongoing restless sleep.'
28You were educated to Year 10. Mr Cummins considered that you were of average intelligence. You left school and then your home around 16. You developed a relationship and have a son, now seven, from that relationship. Because both you and your partner were regularly using drugs, the Department of Health and Human Services became involved and custody and care of your child was placed with your parents. You have had little to do with your son or ex-partner of late.
29You established after that relationship another relationship with a partner who did not use drugs. You were able to abstain from drugs and secure work. In this period, you were able to have the care of your son for a time as it was said that DHHS considered you in a better situation at that time than your ex-partner.
30In this relationship you had a daughter born but that relationship deteriorated. Then the mother of your son was able to resume care of your son. So around 2018, you were not able to see or be involved with either of your children. Your response to this was to recommence drug use and you became a very regular user of methylamphetamines and also heroin as well as continuing with cannabis.
31It is to be noted that you do not have a significant prior history of offending. These crimes that are before me are very much the most serious you have committed. Indeed, your lack of prior matters and the period of abstinence from drugs and your employment in that time all indicate that in the future, you could achieve a level of rehabilitation.
32You have never been in custody before you were remanded on these offences and now been in custody for 379 days.
33You did not do well when you were first on remand. As set out in Mr Cummins' report, you found ways to secure and use drugs. That and other interactions with other prisoners led to you moving prisons. What you told Mr Cummins during his second interview with you was that Forensicare had been seeing you each week and had been seeing a psych nurse and I have been told of your referred to see a psychologist 'to see if I can get onto methadone'.
34You also added and Mr Cummins wrote,
'He then spontaneously stated, "Well, I've now sort of got a couple of mates where I am in here and I've explained to them how Dad used to put me down and assault me and I've opened up to them and told them that Dad used to call me a retard. What I've worked out is that because I got looked down so much by my dad, I convinced myself that I couldn't benefit from getting any sort of mental health treatment but these mates in here have convinced me that I can benefit from talking in those treatment and that's now what I'm starting to do. I took myself off search sertraline around March this year because I felt it was making me angry. The staff where I am now are really helpful and they are talking to me about the fact I'm hearing voices and seeing things. I don't think I've got any psychosis, I think it's more to do with me being traumatised".'
35It seems to me that you are much more settled and supported in prison now. The impact of prison on your post-traumatic stress disorder is now less acute.
36Accordingly, the weight to be attributed to the considerations as outlined by the Court of Appeal in Verdins[1] as Points 5 and 6 or the summary set out in that case are not as weighty as they may otherwise had been. However, it is not the case that your mental health problems are no longer for me to weigh into the mix. Those matters remain important and your engagement with the help and treatment in the prison is encouraging.
[1]Verdins [2007] VSCA 102
37Prison is harder due to the COVID-19 pandemic. There are more and longer lockdowns, limited rehabilitation programs and no visitors. Also, there is the anxiety and concern of an outbreak where necessarily prisoners and staff are in close proximity.
38Having considered all aspects of your mental health and the current difficulties of prison life, your age and the provisions of the statute, I do not consider that any aspect alone or in combination is such as to meet the very strict criteria set out in s.10A of the Sentencing Act or any other aspect of the Sentencing Act. Thus, the minimum non-parole period is at least what must be imposed.
39Your plea of guilty, especially when jury trials are suspended, is of considerable value. The sentence will be less than it otherwise would have been. The aggravated carjacking is an offence which requires imprisonment and a minimum non-parole period unless there are the circumstances set out in the statute. As I have outlined, they are not established in your case.
40There are, as your counsel submitted, reasons to allow for a significant period of potential parole. Those matters are your age, that you are in your first time in custody and will necessarily be there for some time. Your previous relatively small amount of offending and your periods of abstinence from drugs all lead to a conclusion, as I have said, that you can rehabilitate and that provides a good reason for a significant period of potential parole. However, I stress, when and if you are granted parole is for others, not me.
41However, I must give proper and thus considerable weight notwithstanding the rehabilitative aspects. I must give considerable weight to denunciation and deterrence, especially deterrence to others. The aggravated carjacking was appalling violence and cruel exploitation of the generosity of a vulnerable man.
42Also, as stated, the theft of firearms is a crime that puts guns unregulated into the hands of criminals. It creates high risks and it must be sternly punished. There must be some cumulation between the quite separate sets of crimes though I have after considering concurrency and cumulation within and between the two sets of crimes, then taken another look to be sure that the sentence meets the totality of all your crimes, no more and no less.
43Finally, your rehabilitation, as I have said, is an important consideration in all aspects of the sentence, not just the non-parole period. However, given the gravity of these crimes, I must give the greater weight to punishment, denunciation and deterrence.
44For those reasons, doing the best I can, I impose the following penalties.
45For the crime of burglary, that is on your parents' place, you are sentenced to one year imprisonment.
46For the theft of items, you are sentenced to one month imprisonment.
47For the theft of the firearms, you are sentenced to two years' imprisonment.
48For the aggravated carjacking, you are sentenced to four years' imprisonment.
49For the summary matters of the possession of a controlled weapon, you are sentenced to one month imprisonment.
50For the unlicensed driving, you are fined $200.
51For committing an offence on bail, you are sentenced to one month imprisonment.
52I order that two months of Charge 1, the burglary, and one year of Charge 3, the theft of the firearms, be cumulative upon Charge 4, the aggravated carjacking.
53That gives a total effective sentence of five years and two months and I fix a minimum non-parole period of three years and three months.
54Had you pleaded not guilty to these matters, I would have imposed a sentence of seven years with a minimum of five years.
55You have served, as I have said, 379 days in custody on remand; this figure having been reckoned, I now declare that those days, 379, are part of the sentence that I have just imposed. I will ensure the declaration is entered into the records of the court.
56Is there anything else required, Ms Guesdon?
57MS GUESDON: Yes, Your Honour. There was a draft forfeiture order just in relation to some items.
58HIS HONOUR: Yes.
59MS GUESDON: The keys and shoes and a phone after the carjacking.
60HIS HONOUR: Those matters will be forfeited. Mr Cookson?
61MR COOKSON: Nothing further from my end, Your Honour.
62HIS HONOUR: Thank you very much.
63Mr Harding, Mr Cookson I hope will be able to remain on the line and talk to him. We will require all the rest of us to get off the meeting. So I have got to ensure that that happens so all those such as parents and victims and lawyers and the like apart from Ms Foley just go off the meeting.
64Mr McIntosh will control this part, Mr Cookson. Thank you very much for your assistance.
65MR COOKSON: Yes, Your Honour.
66MS GUESDON: If the court pleases.
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