Director of Public Prosecutions v Harnden

[2016] VCC 632

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-16-00024

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN EDWARD HARNDEN

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	17 May 2016
CASE MAY BE CITED AS:	DPP v Harnden
MEDIUM NEUTRAL CITATION:	[2016] VCC 632

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D.P. Hannan
For the Offender	Mr P.F. Bloemen

HIS HONOUR: 

1John Edward Harnden, you have pleaded guilty to one charge of reckless conduct endangering life, one charge of threat to kill, one charge of being a non-prohibited person possessing a category A long arm and one uplifted charge of possessing a weapon.  Those crimes carry maximum penalties of ten years, ten years, ten years and one year respectively.

2You are 62 years of age. 

3You do have prior findings of guilt, including one for assault, but they are now of some antiquity. 

4You pleaded guilty to a settled indictment and must get the benefit of that. 
I accept in these circumstances that you have expressed appropriate remorse.  You must also of course get the utilitarian benefit of saving the community from a trial and saving the victim from having to give evidence.

5Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you and your counsel will advise you how to do that.  That order is made and handed down.

6The circumstances of the offending can be gleaned from the Crown opening are that some time around about the turn of the century, your sister and her partner were having financial problems.  A loan was provided and the security given was your property.  There was apparently some dispute about that and the property that the loan had been provided for was lost.  Apparently your mother had been giving receipts for payments that had been made but not then handing it on to you. 

7In any event, on the Crown opening, whether it be correct or not does not really matter much, the loan was eventually repaid to you.  I simply mention that because in your interview you seem to be claiming that other moneys were owed.  I am simply not going to buy into what the history of all this is.  Clearly the situation is that you and your sister and her partner had drifted apart and the circumstances could only be described as acrimonious.

8In any event, the complainant in the matter, Mr Booker, and your sister were working at a riding school on Phillip Island.  On 6 April 2015, you, in an intoxicated state with a knife strapped to each leg, went to the property.  You arrived at around about 6.30 pm and there were a number of people present.  You asked for Mr Booker.  You told police later that you intended to frighten him and to try and get your money back.

9In any event, Mr Booker recognised that it was you and says that he walked towards you.  You demanded the money and then it is clear that you swung a hand with a knife in it in the direction of Mr Booker.  I have some doubts about the exact circumstances which evolved from there.  I make it very clear, I am not sentencing you for intending to cause any injury to him, but it seems clear to me that if you had intended to stab him you would have.  In any event, that gives rise to the charge of reckless endangerment and it is dangerous conduct indeed.  Throughout the incident you were yelling at Booker, "I'm going to kill you."  That obviously gives rise to a charge of threat to kill.

10When police arrested you, you were found to have had, at least at the time you attended the premises, knives attached to your leg and that gives rise to the summary matter which I am about to sentence you for as well.  No physical injury was inflicted.

11You were interviewed by police and gave a description of what had occurred.  You basically said that you just "snapped" and you intended to scare him.  You said you had had the knives for some years and the firearm, which was an old double barrelled 12 gauge did not work in any event.  I do not regard that as being as significant as many of the firearms offences we come across in this particular part of the country.  In any event, when police searched your premises they found it and you have pleaded guilty to the possession of it.

12I have before me a victim impact statement in which Mr Booker describes the ongoing psychological concerns that he has had throughout all this and I accept that that is in fact the case and that what you did was indeed dangerous.

13The charges have to be regarded as serious, certainly so far as endangerment is concerned and the normal course of events calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.

14In your situation, you are 62 years of age and in poor health.  I have before me a medical report which confirms that and I will go through a little bit of your background in a moment.

15In the normal course of events for someone of your age in a situation such as this, I may well have had you assessed for a community corrections order, but that submission is not being made and, indeed, it is not being made because after the events had occurred you did 166 days in custody.  For a significant portion of that 166 days you were subject to the ramifications of the gaol riots.  It was the first time you had ever been imprisoned and I accept that it had a very salutary effect upon you. 

16It is in those circumstances, as I have indicated, that I think the sufficient disposition here will be the 166 days that you have served, together with a with conviction adjourned disposition where you will agree to continue to have counselling at the Foster & Toora Medical Centre with a Ms Hurst, who is the registered nurse at that premise.

17For reasons of clarity, I have before me a reference from South Gippsland Quarries, signed by Mr Knox, indicating that you do have work available to you.  You have been with that company now for something in excess of 20 years.  Interestingly, he also says, "I look forward to having John back, not only from a work perspective but also as a friend and I am sure this view is held by all of my colleagues as well."  I have no doubt that this conduct on this night was totally out of character for you and take that into account.

18There is a reference from your daughter, with whom you have been living since being on bail, which confirms in my view the regard in which Mr Knox would appear to hold you.

19In any event, as I said, you are 62 years of age.  You were apparently brought up in Leongatha.  You left school in Form 3.  You were in the army for a period of some four years or so.  You state that you had suffered damage from Agent Orange and I am aware of the difficult circumstances that have been in existence about that now for a very long period of time. 

20In any event, after you were discharged from the army in 1975, you worked in a foundry for some 15 years, in Coles for another five years and then, as I have indicated, for a very significant period of time with South Gippsland Quarries near Leongatha.

21You were married in 1970.  You have four children.  You are currently living with one of your daughters.  You have been clearly an alcoholic and a very heavy drinker since your 20s.  You would average around about half a dozen bottles of beer a day.

22Since the 166 days in custody, I am informed that it has in fact had a beneficial effect upon you in that you have not drunk since whilst being on bail.  You do have very poor health and I take that into account.  I am sure it was of no assistance to you in gaol, but it would make being put in custody significantly more difficult for you.  You have difficulties with asbestos exposure.  You have trouble with your eye.  You have cancer in an eye and you face the prospect ultimately of blindness.  I take all those matters into account.  As I have indicated, I take into account the onerous conditions that you went through in custody.

23Importantly, for a man of 62, you do have somewhere to go when you are released and you do have work to go to.  The South Gippsland Quarries are clearly very prepared to have you back and that is to your credit.  It also gives me confidence in terms of your not re-offending.  You have been having obviously quite significant counselling at the Foster & Toora Medical Centre. 
I have a report from them and I think in all the circumstances that it is desirable that there be some coercion in you continuing to have that counselling.  I am not suggesting that you would not, but from a sentencing judge's point of view, I would prefer that that be the case.

24The prospects of your rehabilitation seem to me to be excellent and the risk of you re-offending, certainly in this type of way, would appear to be either low or in all probability non-existent.  I take all those matters into account.  I am satisfied that the disposition that I have already outlined is an appropriate one.

25Accordingly, you are sentenced to be imprisoned for a period of 166 days on the charge of reckless endangerment. 

26On the other charges you are to be released, if you agree, on a 12 month adjournment with conviction, the only conditions being:

27Of good behavior; and

28Continuing counselling with Ms Hurst at the Foster & Toora Medical Centre.

29(Section 464ZF order signed and acknowledged.)

30(Good behaviour bond signed and acknowledged.)

31All right.  Nothing else we need to do?  All orders are made and everything is done.  Thanks for that.

32MR BLOEMEN:  The 6AAA, Your Honour?

33HIS HONOUR:  Not when - I have given him a bond as well.   No.

34MR BLOEMEN:  No?

35HIS HONOUR:  No.  These combination sentences do not ‑ ‑ ‑

36MR BLOEMEN:  No.

37HIS HONOUR:  The 6AAAs, when you give someone a maximum and a minimum and then you give them a rough idea what they would have got otherwise, but if he had fought this out he probably would not have got much different, I would have thought.  All right, thanks gentlemen.  You can come out of there.  Yes, thanks, gents.

‑ ‑ ‑