Director of Public Prosecutions v Harper (a pseudonym)
[2025] VCC 73
•7 February 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL HARPER (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE HIGHAM |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 October 2024 |
DATE OF SENTENCE: | 7 February 2025 |
CASE MAY BE CITED AS: | DPP v Harper (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2025] VCC 73 |
REASONS FOR SENTENCE
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Subject: | CRIMINAL LAW |
Catchwords: | Sentence – assault with intent to commit sexual offence – intentionally damage property - plea of guilty – cancellation of drug and alcohol treatment order – sentence activation |
Legislation Cited: | Sentencing Act 1991 (Vic) |
Cases Cited: | |
Sentence: | 10 months imprisonment and Community Corrections Order of 30 months |
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms V. Kambouropoulos | Office of Public Prosecutions |
For the accused | Mr J. Riordan |
HIS HONOUR:
1Michael Harper,[1] on 4 April 2022 you were placed on a Drug and Alcohol Treatment Order (DATO) of 3 years' duration for offences relating to trafficking a drug of dependence and negligently dealing with proceeds of crime. The program conditions of your order ended on 3 April 2024.
[1]A pseudonym.
2On 13 November 2023, you were charged with criminal damage relating to graffiti committed on the 3 September 2023. On the 15 January 2024, you were again charged with criminal damage relating to graffiti committed on 11 January 2024. You continued on your DATO. It was intended that those matters, once resolved, would be transferred to this court.
3On 4 April 2024, your program conditions ended and you moved to phase 4 of your DATO. However on the 24 April 2024, you were arrested for an assault with intent to commit a sexual offence committed on that day. You were remanded into custody where you have since remained. In view of your continued remand an application to cancel your DATO was filed. On the 5 August 2024, your order was cancelled by consent due to your remand and consequent inability to comply with the conditions of your order.
4Meanwhile on 13 June 2024, the charge of assault with the intent to commit a sexual offence contrary to s42(1) was transferred to this court under s18ZO of the Sentencing Act 1991. For completeness, on the 24 June 2024, the two charges of criminal damage were also committed to this court, again under the provisions of s18ZO. The court had in front of it therefore three distinct charges and an activation hearing consequent upon the cancellation of your order.
The activation pursuant to s18ZP(2)(a)
5I turn to deal with the activation of the remaining custodial term pursuant to s18ZP(2). The remaining custodial term of your order is agreed to be 241 days (just shy of eight months). In fixing the term to be activated I have attempted to have regard to all relevant matters. I note it was not contended by your learned counsel Mr Riordan that you should be dealt with by means of a non-custodial disposition[2]. I am required by statute to take into account the extent to which you have complied with the treatment and supervision part of your order[3]. I have had particular regard to the progress that you made on your order. You were always courteous, complaint and co-operative. I also have regard to the acute mental health crisis you experienced and the matters identified in the progress report dated 5 June 2024 (Exhibit 9). This progress report detailed your concerning mental health presentation at Drug Court House and elsewhere. I have had regard to your aboriginality insofar as I can, and to the delay in finalising this matter due to exploring available community supports and housing options. Whilst your time in custody has resulted in a day for day reduction in the remaining custodial term, I have had regard to the impact of your mental ill-health upon your time and conditions of remand.
[2] See S 18ZP(2)(b)
[3] S 18 ZP (2)
6I order that you serve 1 day of the remaining custodial term.
The new offending
7I turn now to the new offending. The powers of the Drug Court to deal with an offender participant who is charged with an offence, whether allegedly committed before or after the DATO is made are set out in s18ZO1A and 1B of the Sentencing Act 1991.
8In brief, if a participant is charged with and pleads guilty to an offence within the jurisdiction of the Magistrates' Court, the Magistrates' Court must order that the proceeding in respect of the charge is transferred to the Drug Court division of the County Court and the Drug Court division may deal with the offender for the offence (s18ZO(1A)(a) and(b)). If charged with an offence within the jurisdiction of the County Court, the Drug Court division of the County Court may hear and determine the offence (s18ZO(1B)).
9There is a power to subsume any sentence of imprisonment into the remaining custodial term of the DATO if the offence 'is of a kind of offence in respect of which the Drug Court could make a DATO if the offender were not already subject to one' (s18ZO(2)). A DATO cannot be made in respect of a sexual offence (s18Z(1)(a)(i)) and, accordingly, there was no prospect of any term of imprisonment for that offence being subsumed.
10The matter proceeded by way of plea which commenced on 29 August 2024 when you pleaded guilty to:
· One charge of assault with an intent to commit a sexual offence for which the maximum penalty is a term of imprisonment of 15 years; and
· Two charges of intentionally damaging property for each of which the maximum penalty is a term of imprisonment of 10 years.
11The matter eventually concluded on 8 January 2025 and the delay had been caused at least in part, by issues regarding the Community Corrections assessment report, concerns regarding suitable accommodation and also court availability.
12Exhibit 1 on the plea was an agreed summary of prosecution opening. In brief, the circumstances of your offending were as follows.
13On 3 September 2023, police located you spray painting a wall belonging to CitiPower in Mighty Apollo Lane (that is a property damage charge where the informant is Grinter). You were found with 19 aerosol spray cans and five bags of assorted spray can nozzles. You were taken to Melbourne West police station where you provided a no comment interview, which is of course your right.
14On 11 January 2024, you were found by police spray painting around Northbank Skatepark, Anderson Street, West Melbourne (and that is the charge, criminal damage where the informant is Isaacs). Thirty‑nine aerosol spray cans were found in your possession. You were arrested and conveyed to the Melbourne West police station where you provided full admissions for your offending.
15I turn now to the most serious matter in front of me which is the assault with intent to commit a sexual offence contrary to s42 of the Crimes Act.
16On 24 April 2024, at approximately 10.50 pm, Ms West,[4] your victim, was waiting for an Uber outside North Melbourne railway station. She was in the vicinity of the bus bays when she noticed you, and then felt that you were watching her. Feeling apprehensive, she moved closer towards the train station. You followed Ms West and stated 'You're going to get what's coming for you'.
[4]A pseudonym.
17Ms West proceeded to the office at the station, where she requested police assistance. You pushed Ms West against the counter, grabbed her around the neck and attempted to kiss her while she resisted. Your hands travelled down the side of her body. You were observed placing your hand over her mouth, pulling her towards the Myki barriers where you stated 'I'm going to have you over this and I am going to fuck you'. Ms West screamed and attempted to free herself.
18At this point Mr Frederick Okoro,[5] who had just come off a train and was heading home with his skateboard in hand, witnessed your assault of Ms West and immediately ran over to lend assistance. He managed to pull you away from your victim. Importantly, his observation of you was 'I could tell immediately that there was something wrong with him mentally. He said some things to me that were very concerning such as "It was meant to be", "She asked for it[6]".' Police were called and you were arrested and conveyed to Melbourne North police station where you were deemed unfit for interview. You have remained in custody since that date and you have experienced severe mental ill-health which has finally been managed by depot injection.
[5]A pseudonym.
[6]Witness statement dated 25/4/24 of Frederick Okoro
19Exhibit 2 on the plea was the victim impact statement of Ms West. She speaks of the enduring impact of your assault upon her. She experiences post‑traumatic stress disorder, she remains in a hypervigilant state and struggles with insomnia. She worries that her life will never be the same again after your attack upon her. The panic attacks which she began to experience after the assault have worsened. She cannot use public transport. She has required anxiety medication and has seen psychologists. Her profession was that of a clinical nurse specialist. Her capacity to work in areas of acute health needs has been significantly impacted. She has lost her independence, she feels isolated and is unable to partake in those activities such as hiking and walking, from which she used to gain much joy.
20Now whilst it must not be permitted to overwhelm the sentencing process there can be no doubt as to the continuing and traumatic impact of your offending upon your victim.
Personal Circumstances
21I turn now to your personal circumstances.
22You are 33 years of age and you identify as a Kamilaroi man. You grew up in the Coffs Harbour area with your parents and a younger sister. Your father's work commitments often took him away from home. Your mother worked shifts and she struggled with substance use. Your parents separated when you were 15 in difficult circumstances and you then went to live with your father and his new partner. This was not a happy family environment for you and your education suffered, and you left school in Year 11. Your relationship with your father remains very challenging. After school you began working in hospitality. In 2016, you moved to Melbourne where a close childhood friend lived. You obtained work and you continued employment until 2019 by which time your substance use had spiralled and compromised your ability to hold down full-time employment. You were by then a daily user both of synthetic cannabis and methamphetamine. You did however begin to put more time into your art practice and other endeavours.
23You have a limited prior criminal history notwithstanding your substance use. In February 2022, you received a prison term of 240 days (as time served) for offending including trafficking and possession of drug of dependence.
24In April 2022, as I have already stated you were placed on a DATO of three years' duration for the offences relating to trafficking a drug of dependence and proceeds of crime. That was prior offending to the February 2022 matter.
25Whilst on your order you demonstrated compliance over the period of your program conditions. You engaged well and as I have said were always polite and courteous. You were encouraged to continue with your art. You were also encouraged to engaged with culturally appropriate centres such as Blak Pearl. Indeed Ms Bastos from Blak Pearl has been a continued support for you in your court hearings. However in March 2024, you used N,N‑Dimethyltryptamine (otherwise known as DMT) over a short period. Use of this drug had an immediate and most adverse impact upon your mental well-being (see the progress report date Exhibit 9). Your presentation at Drug Court House was concerning and you were admitted to hospital to undergo assessment and treatment. You were eventually clinically discharged into the care of the local area mental health as a voluntary patient. Your Drug Court treating team continued to be concerned as to your presentation and were endeavouring to link you into further community supports at the time of your arrest on the sexual assault charge.
26Exhibit 7BF on the plea was a forensic psychiatric report from A/Prof Rajan Darjee dated 11 September 2024. Prof Darjee had reviewed your clinical history, your Justice Health records and other collateral material and conducted an assessment with you.
27He noted that the direct known effects of DMT include profound distortions and hallucinations across time, visual, auditory, tactile, and body awareness perception. However, he added:
DMT intoxication does not cause prolonged episodes of psychosis unless a person takes it repeatedly, many times a day or has an underlying vulnerability to psychosis. Mr [Harper] appears to have experienced hallucinations and delusions beyond the period of intoxication with DMT. This psychosis lasted about two months … [it] does not seem to have resolved with treatment in hospital, [it] was present at the time of the sexual offence, and [it] only subsided completely after he was transferred to Ravenhall Correctional Centre.
In my view the most appropriate diagnosis is drug induced psychosis given the onset and course of his symptoms. To develop a drug induced psychosis one must have an underlying vulnerability to psychosis in terms of brain function.
Professor Darjee continued:
[Mr Harper] was clearly psychotic and acutely unwell at the time of the sexual offence. Due to his psychotic state he appears to have misidentified the victim as his ex-partner 'in a different skin' and hearing his ex-partner's voice encouraging him to have rough sex with her in a public place.
Importantly:
There is no evidence indicating he was acutely intoxicated or under the direct influence of substances at the time of the offending. His mental state of psychosis explains why he committed such a disorganised, impulsive and opportunistic offence in a public place with witnesses watching. His psychotic state at the time seems to explain his behaviour and if he was not in that state it is unlikely that the offence would have happened. His psychotic state at the time was both necessary and sufficient to explain his behaviour. There does not seem to be any other significant factors which contributed to his behaviour such as sexual deviance, sexually objectifying attitudes, entitlement, sexual preoccupation, lack of empathy, or a propensity or proclivity toward sexual offending violence.
His psychotic state at the time significantly affected his ability to appreciate the wrongfulness of his actions, to exercise rational judgment, to make calm and rational decisions, and meeting disinhibited and more likely to act impulsively.
In terms of his response to the offence, he regrets what he did [and its] impact on [his] victim, [he] wishes he had not acted that way, and despite being unwell at the time, does not seek to hide from being accountable for what he did … and understands that he has to take steps to ensure he does not do anything like it again.
28As to future risk, Prof Darjee stressed the need for addressing your substance disorder, mental health monitoring and treatment, and social stability in terms of accommodation and meaningful activity and employment. 'If he remains off substances … it is unlikely he will commit a similar offence in the future'.
Submissions of counsel
29Mr Riordan learned counsel on your behalf conceded that this was serious offending in which general deterrence, denunciation, and protection of the community are all important sentencing considerations. The significant impact of an assault by a stranger upon a woman alone at night was clear and beyond doubt.
30As to the objective seriousness of the offending, he submitted correctly, there was no planning or premeditation. Your victim was not isolated from other members of the public and the offending itself was over in a very short time and was not protracted.
31He submitted that the conclusions of Prof Darjee enlivened principles 1 to 4 of the well-known case of Verdins[7]: moderation of moral culpability and denunciation, the need for specific and general deterrence and the type of sentence that should be imposed. Whilst ordinarily self-induced intoxication does not tend to a reduction in moral culpability, he correctly identified that the critical factor is the degree of foreknowledge on the part of the offender citing the case of Alexander v The Queen [2021] VSA 217. He submitted it was not open to the court to find foreknowledge on your part of the adverse impact of DMT. You had been a user of illicit drugs over many years without any indication of such paranoia or mental ill-health. Importantly you had never consumed DMT prior to March 2024, which use resulted in the immediate decline in your mental health. The vast majority of people do not experience psychotic episodes as a result of using DMT: consequently, you most likely had a predisposition to mental illness which was triggered by your use.
[7]Verdins, Buckley, Vo [2007] VSCA 102
32I understood Ms Kambouropoulos, on behalf of the Director, to accept that submission.
33Mr Riordan submitted there were grounds for optimism regarding your prospects for rehabilitation in light of your lack of relevant criminal history, your remorse, and the recent improvement in your mental health.
34Your plea was entered at the earliest opportunity, indicating a willingness to facilitate the course of justice and bringing with it the practical benefit of saving the community the time and the cost of a trial, and importantly saving your victim from the trauma of having to give evidence.
35His submission was that a suitably tailored community correction order served both the purposes of your rehabilitation and ensuring long-term protection of the community. When pressed, he conceded that a sentence combining a term of imprisonment, enabling your near release, with a community-based order would equally address all relevant sentencing purposes.
36I again understood Ms Kambouropoulos on behalf of the Director to concede that the disposition of a combination sentence was open to the court.
Objective gravity
37Now as to the objective gravity of the offence, Mr Harper, on an autumn Wednesday evening your victim Ms West, a clinical care nurse, was waiting for an Uber at North Melbourne station. She noticed you close to her and, feeling uncomfortable, moved back into the station forecourt close to the ticket office. She was then attacked by you: dragged to the myki barriers and subjected to your verbal threats of sexual violence. Your actions were such as to make clear you intended to carry out those threats. Incredibly, her screams went unanswered by station staff. Fortunately for her, and fortunately for you, a good samaritan in the shape of Mr Okoro arrived and was able to pull you off before matters could go any further. It was clearly a terrifying ordeal for Ms West and the impacts remain with her. It represents every woman's nightmare. Women must be entitled to walk on the street without fear of harassment, hindrance or assault and the courts will do everything they can to ensure that women are protected. Those who commit such assaults must expect significant terms of imprisonment. General and specific deterrence will always be primary sentencing considerations.
38To Ms West, I wish to say, the sentencing process is not about revenge, it is not about retribution. The sentencing process cannot give back to you that which you feel has been taken from you. Nor does the sentence I am going to pass in any way seek to undermine the impact of this offence upon you.
39Mr Harper in sentencing you I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is deterring others from behaving as you did, and to specific deterrence, that is deterring you from ever repeating such offending. I must consider the need to protect the community. I must express the community’s denunciation of your conduct. I must take into account the effect of your crimes upon your victim. I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty. I must ensure as far as possible that you are rehabilitated and reintegrated into society. In short, I must try to balance your personal circumstances with the circumstances of your offending and I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.
40Now importantly, on all the material in front of me I accept:
(1) At the time of the offending you were experiencing a psychotic episode, (see the evidence of Mr Okoro, the contents of Exhibit 9 and Exhibit 7BF, the report of A/Prof Darjee).
(2) There is no evidence to suggest use of DMT by you at the time of this offending. You had begun first use of DMT in the month before but apparently ceased.
(3) This prior use by you of DMT was the cause of the psychotic episode to which you were subject. Whilst use of the drug causes altered states of perception, the effects of the drug normally wear off within half an hour (see Exhibit 7BF). In your case your prior use triggered an enduring psychosis which had not been adequately treated at the time of the offending.
(4) The enduring psychosis which you experienced was due to an organic and undiagnosed vulnerability and predisposition to psychosis.
(5) The impact of DMT upon your mental health, its nature and severity could not have been foreseen by you.
(6) Had you not been in a state of psychosis the offence would not have been committed.
(7) In consequence I am satisfied that your mental state at the time of the offending and the auditory command hallucinations to which you were subject, establish a direct causal link with the offending.
(8) And finally, in consequence, principles 1 to 4 of Verdins are enlivened.
41I have had regard to all matters urged upon me by your counsel, to your plea, your genuine remorse, your improved mental health and my findings as to the direct connection between the offending and your mental state. Your moral culpability is significantly reduced. You are not a suitable vehicle for general deterrence. The need for specific deterrence is also reduced although not eliminated. I am persuaded that the community would be better protected if you were subjected to a court supervised community-based order rather than released from a prison term either on parole or directly with no sufficient community supports.
42I also note for completeness I had invited submissions as to the court's sentencing powers. I am of the view that the s18ZO transfer provisions were not intended to and do not in fact restrict this court to the maximum penalties available in the Magistrates' Court of Victoria but are rather merely a vehicle for swiftly transferring matters into this jurisdiction. However, in light of the sentence that I am imposing I do not propose to give full reasons for so finding.
Sentence
43Mr Harper, on both of the criminal damage charges, you are sentenced to an aggregate sentence of 30 days.
44On the assault with intent to commit a sexual offence you are sentenced to a sentence of 10 months' imprisonment and a community correction order of 30 months' duration.
45I make no order for cumulation.
46Pursuant to s18(4) I declare that you served 289 days. That is the agreed figure, counsel?
47MR RIORDAN: Yes that is the figure.
48Pursuant to s6AAA, had you not pleaded guilty, you would have received a total effective sentence of 42 months with a non‑parole period of 30.
49There is still the address available?
50MR RIORDAN: Yes. The address is still suitable.
51HIS HONOUR: Yes. I am not going to make it a residence condition of the community correction order because I understand that is only a short-term address.
52I am going to have Mr Harper back for review on 28 February at 2:00 PM. Any legal representative on his part, yourself or your instructor are more than welcome to attend even though it's never a formal requirement.
53MR RIORDAN: Thank you, Your Honour.
54HIS HONOUR: And as to the other conditions I am proposing:
a)a condition of supervision.
b)You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
c)Must not to use drug of dependence or schedule 4 poison without lawful excuse.
d)You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
e)You must undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility as directed by the Regional Manager.
f)You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager,
g)Must attend as directed by your mental health team for treatment and medication
a)Must comply with all prescribed medication.
55I've got a disposal order for the spray cans.
56MR RIORDAN: They're consented to, Your Honour.
57HIS HONOUR: The nearest Corrections office is South Morang.
58HIS HONOUR: All right I'll stand down so good afternoon to you and to you, Mr Riordan.
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