Director of Public Prosecutions v Harper (a pseudonym)
[2018] VCC 1485
•13 September 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER HARPER (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 7 September 2018 |
| DATE OF SENTENCE: | 13 September 2018 |
| CASE MAY BE CITED AS: | DPP v Harper (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1485 |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Criminal damage - causing injury recklessly - make threat to kill - theft - contravene a family violence final intervention order
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 5 years’ imprisonment, 3 years non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr N. Goodfellow (Plea) Mr N. Hanos (Sentence) | Emma Turnbull Lawyers |
HIS HONOUR:
1Peter Harper[1], you have pleaded guilty to one charge of criminal damage, two charges of causing injury recklessly, two charges of make threat to kill, one charge of theft and one transferred summary charge of contravene a family violence final interventional order.
- The maximum penalty for criminal damage is ten years' imprisonment.
- The maximum penalty for causing injury recklessly is five years' imprisonment.
- The maximum penalty for make a threat to kill is ten years' imprisonment.
- The maximum penalty for theft is ten years' imprisonment.
- The maximum penalty for contravene a family violence final intervention order is two years' imprisonment or 240 penalty units or both.
[1]Peter Harper is a pseudonym
2You were born on 10 December 1983 and you are now 34 years old. At the time of the offending, some two years ago now, you were 32 years of age.
3You have a history of previous convictions for similar and other offending to which I will refer in more detail later.
4The victims in this matter are your mother, a male acquaintance and the acquaintance's partner. The offending against your mother occurred on 2 October 2016. The offending against the two other victims occurred between 13 and 14 October 2016.
5As to the offending involving your mother, which relates to Charge 1 and the related summary offence: on 2 October 2016 you were a respondent to a family violence intervention order where the affected family member was your mother. The conditions to that order were that you must not attend within 300 metres of specified premises in Bendigo, must not damage property belonging to her and must not go within 30 metres of her.
6At approximately 4 pm on 2 October 2016, you attended at the front door of the specified premises in Bendigo and began banging on it, wanting to come inside to get money from your mother. This relates to Summary Charge 5 - contravene a family violence final intervention order.
7You appeared drug-affected and were aggressive towards her. She refused you entry. You became more aggressive and shook the front security door, pulling it off its hinges. This conduct is represented by Charge 1 - criminal damage.
8Your mother left the premises to get away from you. You did not gain entry and you left prior to police arrival.
9As to the offending involving the male acquaintance and his partner, being Charges 2 to 6: in the afternoon of Thursday, 13 October 2016 at approximately 2.30 pm, you attended premises in Abbott Street, Bendigo. Whilst at the property you engaged in a dispute with these two victims. You used a knife whilst threatening them.
10You and the male victim engaged in a struggle and he sustained a 2-to-3 centimetre-long wound deep into his leg and cuts to his hand. This conduct is represented by Charge 2 - causing injury recklessly.
11During the incident you also punched his partner to the face more than once. This conduct is represented by Charge 3 - causing injury recklessly.
12You also threatened to kill them both. You said,
“Where is my money ya dog. Give me my money ya dog, where’s my wallet, I know you have my phone."
13The male victim recalls you saying,
"Give me all your shit dog, give me everything you have got, I'm going to stab you, I'm going to kill you."
14This conduct is represented by Charges 4 and 5 - make threat to kill.
15You walked to the front door of the house where the male victim's vehicle was parked. You took his bag which contained medical documents, an iPhone 4s mobile phone, a Samsung S6 mobile phone, house keys, a Medicare card, a Healthcare card, a Commonwealth debit card and earphones. This conduct is represented by Charge 6 - theft.
16The victim, without any other means of contact, then limped his way into a place called Metal Mosh on Mitchell Street, Bendigo to tell a friend what had happened and to call ‘000’.
17His partner, having been separated from him, went back to the Abbott Street premises looking for him. She then returned to the CBD and located him.
18The two victims saw police officers in the Hargreaves Mall and alerted them to what had happened to her. She was observed to have severe swelling and bruising to her face. She was taken to the Bendigo police station where it was established that she required immediate medical attention and she was conveyed to the Bendigo Hospital.
19As a result of the above incidents the male victim sustained multiple lacerations to his hands and five stitches to a stab wound in his left thigh. His partner sustained facial injuries consisting of multiple fractures to her nose, fractured cheekbone, bleeding into sinus cavities, severe bruising to her face and body and severe swelling to the face and eyes. She was hospitalised overnight as a result of her injuries and was not discharged until approximately 5 pm the following day.
20At approximately 4 pm on 14 October 2016 you were located and apprehended by police whilst you were hiding in the rear yard of a unit in Long Gully where you had taken the female victim.
21You were conveyed to the Bendigo police station where you were lodged in the cells for a 24-hour period before you were fit for interview. You were severely drug-affected and had not slept for five days, being fuelled by drug use.
22On 15 October 2016 you were interviewed for all of the above matters and made a “no comment” interview.
23I now turn to your personal circumstances.
24As I noted earlier, you are now aged 34 and you were 32 at the time of this offending.
25Your parents separated when you were young and you had a deprived and disadvantaged upbringing characterised by violence and instability. Your mother has a history of schizophrenia and continues to struggle with the illness and takes medication.
26Your father was a member of the Hells Angels and was violent towards you in early childhood. You were also exposed to domestic violence and were sexually abused by your stepbrother's father when you were aged about seven.
27You struggled academically at school and left at age 14.
28You have been diagnosed as epileptic and it is likely that seizures in your early school days undermined your academic progress. You have had little employment since leaving school due to your medical condition.
29You have also indulged in regular alcohol and illicit drug abuse, possibly initiated as a form of self-medication for your epileptic condition. Paradoxically, it is considered that this use has actually aggravated your condition.
30Reports from Forensicare, St Vincent's Hospital and Ms Carla Lechner, clinical psychologist, as well as certificates of courses completed in custody and an education report, were tendered on your plea. By July this year you had participated in 28 individual social work sessions as part of the mental health service for men in prisons and you have engaged regularly in psycho-educational programs and other general rehabilitative programs. Steps have been taken for you to be assisted with a disability support pension and case manager under the National Disability Insurance Scheme.
31In Ms Lechner's opinion, you presented with longstanding mental health and drug addiction problems in addition to a poorly-controlled seizure disorder. You have significantly reduced cognitive function and, as assessed by Ms Lechner, have suffered clinical depression and anxiety.
32I note that since your extended time in custody, your epilepsy condition has stabilised with the introduction of more appropriate medication and you no longer require medication for any depression.
33Your mother attended court at the time of your plea and has provided a written account of some historic background, your remorse and the love and support that you have. Your father has offered you accommodation and employment upon your eventual release.
34You do have an extensive criminal record over the past 15 years, predominantly for violence and theft offences. You have prior convictions for crimes of assault in 2001, 2002, 2003, 2006, 2009 and 2016. You have convictions for various dishonesty offences in 2001, 2003, 2005, 2006 and 2012. The prior offending also includes convictions for armed robbery and burglary.
35The violent offending for which you were sentenced after appeal to the Supreme Court in 2010 was particularly serious and resulted in a combined total head sentence of five years and three months' imprisonment with a non-parole period of three years and six months.
36This sentence did not deter you from committing yet a further assault resulting in conviction in August 2016. It also did not deter you from the current offending.
37The violent acts against the other two victims are examples of serious offending. The circumstances present a picture of a terrifying ordeal of threats, assault and, in the case of the male victim, stabbing with a knife resulting in multiple wounds. The fact of possessing a knife at the time of making the threats to kill adds a further dimension to those threats. Principles of punishment, the protection of the public, denunciation and both specific and general deterrence are prominent sentencing considerations.
38In mitigation I take into account the matters referred to by your counsel, including:
· your plea of guilty, both for its utilitarian value as well as expression of remorse and your further expressions of remorse as evidenced by your mother's letter to the court;
· your traumatic and dysfunctional early life,
· that your offending was committed whilst drug-affected in the context of a long-term addiction to alcohol and drugs;
· your co-morbid condition of epilepsy and cognitive deficit;
· that your epileptic condition has made time in custody more difficult for you - it is encouraging, however, to note that a change in medication to Keppra has settled your condition;
· your commitment to rehabilitation whilst custody; and
· the support that you now have from your mother and father.
39The basic purposes for which a court may impose a sentence are punishment, deterrence (that is both specific to you and general), rehabilitation, denunciation and the protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
40Under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment on one serious violence offence charge, I am required on the serious violence offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence.
41This means that the sentencing task in respect of Charges 4 and 5 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentences are imposed, and to achieve that purpose sentences may be imposed longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
42Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charges 4 and 5, the sentences I impose are to be served cumulatively.
43I note here that the Crown did not call for the cumulation contemplated by s.6E of the Sentencing Act. However because of the mitigating personal circumstance of this case, the fact that Charges 4 and 5 essentially arose out of the same act and in order to avoid a crushing sentence, I do not propose to impose cumulation other than that ordered.
44The Crown did, however, emphasise the provisions of s.6D of the Sentencing Act to reflect the need for greater protection of the community, and I have taken this into consideration in formulating the sentence.
45Pursuant to s.6F of the Sentencing Act, I direct that it be entered into the records of the court that you are sentenced as a serious violent offender in respect of Charges 4 and 5.
46Mr Harper, could you please now stand?
47On Charge 1 of criminal damage, you are convicted and sentenced to six months' imprisonment.
48On Charge 2 of causing injury recklessly, you are convicted and sentenced to three years' imprisonment.
49On Charge 3 of causing injury recklessly, you are convicted and sentenced to two years' imprisonment.
50On Charge 4 of make a threat to kill, you are convicted and sentenced to two years' imprisonment.
51On Charge 5 of make a threat to kill, you are convicted and sentenced to two years' imprisonment.
52On Charge 6 of theft, you are convicted and sentenced to one year's imprisonment.
53On the transferred summary Charge 5 of contravene a family violence intervention order, you are convicted and sentenced to three months' imprisonment.
54Charge 2 is the base sentence.
55I direct that 12 months of the sentence imposed on Charge 3 and six months of each of the sentences imposed on Charges 4 and 5 be served cumulatively on the sentence imposed on Charge 2 and upon each other.
56The total effective sentence is five years' imprisonment.
57I direct that you serve a minimum period of three years' imprisonment before eligibility for parole.
58Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 699 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
59Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed over all charges is seven years’ imprisonment with a minimum period of five years to be served before eligibility for parole.
60At the plea hearing the Crown sought a disposal order under s.77(1) of the Confiscation Act 1997 to which you consented and I have made that order today.
61You may be seated, Mr Harper. Are there any other matters from either counsel?
62MR CORDY: No, Your Honour. Everything is covered.
63HIS HONOUR: All right. Thank you. Mr Harper may be now taken into custody. Thank you very much, Mr Hanos, for your attendance.
64MR HANOS: Thank you, Your Honour. If I could be excused, Your Honour?
65HIS HONOUR: Yes, you may indeed. Thank you again.
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