Director of Public Prosecutions v Harper

[2017] VCC 875

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02195

DIRECTOR OF PUBLIC PROSECUTIONS

v

JARROD LEE HARPER

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March, 30 May 2017
DATE OF SENTENCE:	27 June 2017
CASE MAY BE CITED AS:	DPP v Harper
MEDIUM NEUTRAL CITATION:	[2017] VCC 875

REASONS FOR SENTENCE
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Subject: Criminal law – sentence
Catchwords:  pleaded guilty to 1 charge armed robbery,  1 charge theft  –  37 year old offender,  aiding and abetting - previous criminal history but non-violent offending - mild intellectual disability – ineligible for justice plan -  remorse  - 231 days pre-sentence detention.
Sentence: 233 days time served -  12 month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Moran	DPP
For the Offender	Ms M. Casey	VLA

Pages 1 - 8

 

 

HER HONOUR:

1Jarrod Lee Harper, you have pleaded guilty to one charge of armed robbery and one charge of theft.  These offences occurred on 10 and 11 August 2016 in the following circumstances.  On the evening of 10 August you and the co-accused, James Stone, had been using unknown illicit substances prior to walking along Quamby Avenue in Hamlyn Heights near the corner of Ballarat Road.

2There you saw the victim, 20 year old Nathan Eastwood, who was walking along Ballarat Road.  You approached him and Stone produced a baseball bat and threatened the victim with it, demanding that he hand over his money and other things.

3Mr Eastwood handed over his iPad and ten dollars from his wallet and ran off to try and wave down a passing car.  You and stone walked away in the direction from which you had come and Mr Eastwood called the police after hiding in some bushes.

4Just after 8 am the next morning you and Stone went into a store called the Not Quite Right store in Bell Park.  You took a can of Brut body wash off the shelf and hid it in your pants.  The female store manager approached you and asked you to put the item back on the shelf or pay for it.  You did neither.  You left the store with the can.

5You were arrested a short time later and had the iPad in your possession.  Stone was arrested soon afterwards at a property he had broken into.  When interviewed you admitted to being present with Stone at the time of the first incident but you denied any involvement, saying the victim had been mouthing off at you.

6You said that Stone had carried a metal bar and had threatened the victim.  You said the victim had dropped his iPad and ran away and you had picked it up and that you had walked away when Stone stole the money from the victim.

7You had declined to continue with the interview with the police because you decided you wanted some legal advice, although you had not taken up the offer at the beginning of the interview.  Clearly these are serious offences, particularly the offence of armed robbery.

8Your role was that of aiding and abetting, although there is no evidence that you said or did anything at the relevant time.  Its seriousness is evident in the fact that a stranger was accosted in the street, a public place, at night and unable to call on anyone to help him.

9His victim impact statement confirms the fear that you and Stone caused him by this attack, a fear which lasted for some time.  Armed robbery carries a maximum penalty, a maximum sentence of 25 years' imprisonment and ten years for theft.  You have already served some time in custody and further punishment is going to be imposed by means of a Community Correction Order.  I will explain more about that a little later in these sentencing remarks.

10As to your personal background you are a single man aged 37 with a criminal record dating back to the age of 18.  Your previous offending has included a range of crimes, driving offences, some quite serious, many different charges of dishonesty, drug-related offending and possessing weapons.  There is no previous violent offending. 

11You have spent a lot of time serving short sentences in prison and in the opinion of the psychologist, Ms Lechner, who saw you recently, believes you are at risk of becoming institutionalised.

12You have been diagnosed with a mild intellectual disability and you are in receipt of a disability pension because of it.  You understand that what you did was wrong and you have expressed your regret that it happened, while emphasising that your role was a small one.

13Your regret or remorse is quite significant for two reasons.  First, that you are able to recognise and acknowledge its wrongfulness which suggests some insight.  Second, you expressed that regret almost immediately to the police and you then pleaded guilty at the earliest possible time at the committal mention on 9 December last year.

14Because of your role in the offending a defence at trial may have been available to you, but in avoiding a trial you have saved the witnesses from having to give evidence and be cross-examined, and in particular that would likely have been difficult for Ms Paventich, the shop assistant.

15You are therefore entitled to a discount on your sentence.  You have been in custody now for 232 days, including today, almost eight months.  Apart from prison sentences you have had a number of Community Correction Orders imposed and have breached all but two of them.

16When not in prison and subject to a Community Correction Order you have generally been homeless and lacking community supports.  Ms Lechner states that you have a limited range of adaptive coping skills and strategies.  That combination has caused you to relapse in terms of drug use and criminal activities, with your homelessness perhaps contributing to your lack of success in completing your obligations under the Community Correction Orders.

17You told Ms Lechner that you have found life outside prison hard, mainly because of not having your own place to live in.  You left school after Year 10, having had difficulty learning and you worked at various jobs for several years.  You had a partner for several years and you have an eleven year old daughter who lives with your mother.

18Eventually you were granted a disability pension because of what you described as mental retardation, but there is no indication that you ever qualified for disability services which appears to be an important criterion in being eligible for a justice plan as part of the Community Correction Order.

19A neuro-psychological report was provided prepared by Ms Amanda Niu who assessed you recently.  She concluded that you do have a mild intellectual disability and you have difficulty with daily functioning because of it.  She thought your lack of stable accommodation in the past would have exacerbated your cognitive difficulties with not enough support to help you to cope.

20In turn this led you to becoming vulnerable to the influence of others and caused you to be at risk of offending again.  You were last released from prison in April 2016 but you had nowhere to live and you relapsed immediately into drug use with your old associates.  About four months later you committed these offences.

21Steps have been taken to provide public housing for you when you are released, with a tenancy agreement now in place for a unit in Horsham.  That tenancy began on 26 February in anticipation of your early release, but arrangements were going to be made, and I understand have been made, for an extension of the period of delay so that the unit might be kept for you.

22This represents a significant change in circumstances for you in that you have never had your own accommodation before, despite being on the housing list for many years.  Your mother has agreed to take your daughter to Horsham to visit you there.

23You are encouraged and motivated by this development which in turn might improve your prospects for rehabilitation.  You have been assessed as to your suitability for a Community Correction Order with a justice plan, and while you are suitable for a Community Correction Order you are not eligible for a justice plan.

24However, I am going to sentence you to time served with a Community Correction Order with the hope that some protective factors might help you to complete the CCO.  Because of the possible diagnosis of an acquired brain injury you may be eligible for assistance under the National Disability Insurance Scheme.

25That assistance might help you, together with the fact that you will be living in stable accommodation for the first time.  Not having somewhere to live has been a problem for you for a long time and may have been the main reason why you could not complete previous orders.

26The prosecution's submission as to sentence as at 7 March was that time served was insufficient, but that a further period of imprisonment combined with a Community Correction Order would be within range.  You have now served a further three and a half months approximately.  I am assured that your house in Horsham is still available and that you are in possession of the keys and are ready to go there as soon as you are released.

27Mr Harper, would you stand please?  I sentence you to a term of imprisonment of 233 days which is an aggregate sentence covering both charges combined with a 12 month Community Correction Order which begins when you are released.  You will be under supervision and will have to perform 80 hours of unpaid community work over six months.

28You will also have to be tested for suitability for drug treatment and rehabilitation and to be assessed for any programs to reduce the risk of reoffending.  There will also be judicial monitoring, and I will speak to you.  That means that I will speak to you via a video link about your progress on the order from time to time.

29You will have to go to the court in Horsham where there will be a video link arranged for you.  I will be here in Melbourne and I will speak to you and you can speak to me.  I will have a report each time from Corrections as to your progress and I will discuss it with you.

30There will be no need for your lawyer or for the prosecutor to appear, but you may bring along anyone else if you wish.  Your case manager will also be there.  The first date for that will be Thursday 31 August at 9.30 am.  You must report to the Corrections office in Horsham within two working days after your release from prison. The address is the 2nd Floor, 21 McLachlan Street in Horsham. 

31Under s.6AAA of the Sentencing Act I declare that if you had pleaded not guilty I would have sentenced you to eleven months imprisonment with the same Community Correction Order.

32I declare that 231 days is to be reckoned as already served and I shall note that on the court record.

33That does not include today so you will be returned to prison from where you will be released tomorrow after having served one more day.  Are there any other matters first of all, Ms Moran?

34(Discussion ensued re  464ZF  order)

35HER HONOUR:  Do you want to have a look at the Community Correction Order, Ms Casey, before he signs it?

36MS CASEY:  Yes, thank you.  That's fine, Your Honour.  Would you like me to take it to him?

37HER HONOUR:  Yes, you can approach your client.

38HER HONOUR:  Ms Casey, just a couple more things to explain to Mr Harper.  Mr Harper, if you breach the Community Correction Order you no doubt understand, but I am repeating to you again, that you could be charged with breaching the order and then brought back to court and I would have to re-sentence you.

39Anything further, Ms Casey?

40MS CASEY:  No, Your Honour.  Actually it just occurred to me just now that in terms of the community work Your Honour does have the power to effectively credit Mr Harper with hours by doing programs.

41HER HONOUR:  I do.

42MS CASEY:  I just raise that as something for Your Honour to consider whether that might be applicable.

43HER HONOUR:  That sort of thing can always be subject to - achieved by a variation at some point if it turns out that there is some problem with the work, but in the case of Mr Harper it may be therapeutic for him to at least attempt to do the work and hopefully achieve it and we will see.

44MS CASEY:  Thank you, Your Honour.

45HER HONOUR:  Adjourn the court please.

46(After Court it was ascertained that Jarrod Harper was on the s. 464 data base, therefore 464ZF order was not required.

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