Director of Public Prosecutions v Harris
[2018] VCC 960
•11 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-17-00022
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RONALD HARRIS |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2018 | |
DATE OF SENTENCE: | 11 April 2018 | |
CASE MAY BE CITED AS: | DPP v Harris | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 960 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – aggravated burglary, theft and false imprisonment – contravention of a Community Correction Order – immediate term of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Maguire (Plea) Ms McDonald (Sentence) | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr S Kenny (Plea) Ms A. Cannon (Sentence) | Stary Norton Halphen |
HER HONOUR:
1 Ronald Harris, you have pleaded guilty before me to three charges of theft, one charge of aggravated burglary and one charge of false imprisonment.
2 Objectively, the charges are serious and that is reflected in the maximum penalties prescribed by Parliament, namely 25 years' imprisonment in respect to the aggravated burglary, and ten years' imprisonment in respect to the remaining charges on the indictment.
3 On 25 March 2015 at the Geelong Magistrates' Court you were convicted and sentenced to nine months' imprisonment to be followed by a 12 months' Community Correction Order with conditions, and that related to three burglary charges, three theft charges, an unlawful assault charge and a theft from shop charge.
4 By reason of convictions being recorded with respect to the charges on the indictment, and breaching the conditions of the Community Correction Order, you have contravened the Community Correction Order. You have consented to this court hearing of the contravention of the Community Correction Order, you have admitted both the contravention and the facts that form the basis of the charges that were the subject of the Geelong Magistrates' Court order.
5 The three burglary and theft charges involved you entering residential premises in Horsham on 10 January 2014 during which you stole various items, the unlawful assault related to family violence inflicted upon your then partner Sarah Walton on 5 December 2014, and theft from the shop involved you removing a nail gun and nails without payment from the Mitre 10 store, North Geelong, on 29 July 2014.
6 On your release from prison on 5 September 2015, having served the nine month gaol term, you commenced the Community Correction Order but did not adhere to all the conditions and committed the offending the subject of the charges on the indictment.
7 The maximum penalty prescribed in respect to contravention of a Community Correction Order is three months' imprisonment and in addition you fall to be re-sentenced in respect to the original charges upon the cancellation of your order.
8 When you were arraigned in respect to the indictable offences you also admitted your prior criminal history. It is an extensive one, spanning the period from 8 March 1995 until 29 June 2015, and there are numerous appearances in the Horsham Children's Court and as a child you spent time at Youth Training Centres.
9 As an adult you have been before the courts on many occasions from 28 October 1998 until 29 June 2015. There are many convictions for dishonesty type offences, burglary and theft, firearms type offences, offences of violence against a person and breach of court orders.
10 You have spent many periods of time in custody as an adult over the period from 2000 to 2015 and you now face the very real risk of becoming institutionalised unless you deal with your underlying offending behaviours and the triggers for your offending.
11
I will now move on to sentence you and I will be doing so on the basis of the opening that was read at the plea hearing by the learned prosecutor,
Mr Maguire.
12 Your offending occurred on 3 May and 5 May 2016. Charge 1 concerns theft of a motor vehicle. You stole the vehicle on 3 May 2016 from a BP Service Station located on Princes Highway at Corio. The owner of the vehicle, Darren McKay, had parked his 2001 Ford station wagon registered QSJ 533 at a petrol bowser and had gone into the service station to purchase some items to eat and drink. He had left his keys in the ignition. Whilst he was in the shop you entered the vehicle and drove it away. (Charge 1 – theft). There were various possessions belonging to the owner in the vehicle along with other items belonging to another, Talitha Dixon. Included in the boot of the car was a pair of white riggers gloves, a plastic grey toolbox with tools and a red rope with silver duct tape wrapped around the ends.
13 On Thursday, 5 May 2016 at approximately 2.30 am you drove the stolen Ford station wagon to the home of Andrew Flavel at a location in Manifold Heights. Mr Flavel is not known to you. You forced entry into Mr Flavel's home by breaking the chain on a window at the front of the house and entered the property. Andrew Flavel and his 19 year old son Jonathan Flavel were both asleep inside the house.
14 The prosecution case is that the presence of a person or persons in the premises was known to you at the time you forced entry as evidenced by the clothing you wore, namely a balaclava, dark clothing and gloves, and by the possession of the red rope, or that you were reckless as to whether or not a person was present. (Charge 2 – aggravated burglary).
15 On entry you proceeded to the bedroom occupied by Jonathan Flavel who was asleep. You woke him with words to the effect, "Don't make any moves or I'll shoot you". You took out the red rope that you had with you and placed it around the victim's neck and tied the rope to his ankles and hands effectively hog-tying him.
16 You then rolled him over so that he was lying face down on his bed and whilst he was tied up you were threatening towards him and on numerous occasions told him you would shoot him if he did not cooperate. He did not see a gun but he saw you holding something in your hand which he could not see properly. At one time you referred to your “9 Glock”. You asked the victim if there was anyone else in the house but he did not tell you his father was also present.
17 You started looking around the bedroom, opening cupboards and pulling out the contents. You asked him for keys to his motorbike and where he hid his money. You told him not to move and left the bedroom.
18 You were then heard rummaging around about the house going through the kitchen, lounge room and other areas looking for valuables. You checked on the victim at some stage and then went out into the backyard. You returned to his bedroom and switched on the light at which time the victim saw you were wearing a black balaclava with eyes and mouth fully cut out, cream coloured gloves, a greyish green hooded jacket and black Adidas tracksuit pants.
19 At some time whilst you were out of the room he tried to get out of the rope and then you said to him, "Don't move or I'll come back with a shotgun and some Rebel mates". (Charge 3 – false imprisonment).
20 You left the house and went into the garage where you opened a roller door and eventually started a black Toyota Coupe registered 1AE 2EE which vehicle belonged to Andrew Flavel. You then drove the vehicle away and you stole numerous items belonging to Andrew Flavel that are set out in schedule 1 of the indictment (Charge 4 – theft) and various items belonging to Jonathan Flavel, namely a mobile phone, wallet and keys, clothing and a passport. (Charge 5 – theft).
21 Jonathan Flavel waited about five or so minutes after you had left and eventually freed himself. He went into the garage and saw his father's vehicle had been taken. He then went into his father's room and woke him up and told him what had happened.
22 Police were called and attended the home.
23 At 6.15 am a witness, James Coates, called 000 to report a black sports car parked dangerously on Barrabool Road. He noted there was a man in the car either asleep or doing something.
24 Police attended the vehicle to do a welfare check on the driver and were advised the description of the vehicle matched the description of the one that had been stolen during the aggravated burglary.
25 You were arrested at the scene by police and taken to the Geelong Police Station. You were interviewed and made no admissions. You made a number of false denials.
26
Police located various items in the vehicle including the cream coloured gloves, black balaclava, a wallet containing a Myki card, a Shell Plus card and Westpac card and library card in the name of Talitha Dixon and a membership card in the name of Darren McKay. All of the property had been left in
Mr McKay's vehicle at the time it was stolen by you from the service station. Keys belonging to the Ford owned by Darren McKay and a set of keys belonging to an unknown driver were also located and in addition property stolen from Andrew and Jonathan Flavel were also located together with the keys for the Toyota Coupe.
27 Subsequently you were charged and your matter was the subject of a committal hearing on 12 January 2017. The matter was listed for trial in the circuit commencing in Geelong on 31 July 2017. It was not reached and the trial was adjourned to the next circuit commencing 29 January 2018. Prior to the matter commencing your matter resolved. You were arraigned and the matter proceeded then as a plea hearing.
28 Mr Harris, your offending represents serious examples of these sorts of serious offences, particularly the aggravated burglary and false imprisonment charges. Objectively, the offending is very serious involving as it does the entry into a private residence in the early hours of the morning, whilst you were disguised and equipped with a rope which you subsequently employed to tie up the victim Jonathan Flavel. You disturbed the victim in his sleep and thereafter threatened the young man whilst he was in a very vulnerable and compromised state. The aggravated burglary offence was preparatory to the other offending on the indictment that was effected following entry.
29 In sentencing you there is a real need for the court to emphasise both general and specific deterrence and on behalf of the community I must denounce your behaviour.
30 Your offending has had a profound impact upon both Andrew and Jonathan Flavel. Andrew Flavel in his victim impact statement outlines the inability to feel safe inside his own home resulting in sleep issues and anxiety, particularly when hearing unusual noises at night. He feels he let his son down as he was not in a position to protect him. He now uses sleeping tablets and has taken positive actions to better secure his home including installing alarms and security lights. He has changed long term plans to build a new home at the property and now proposes to sell and move home as quickly as possible. Of greater concern is the impact on his son and their relationship. Prior to the crime occurring, his son Jonathan would stay with him at least once a week. His son had previously been living interstate for several years and was in the process of rebuilding his relationship with his father. Since the crimes were committed his son reduced the times he has spent there at the home because he associates the house with these crimes and almost two years on he is only now just staying over and enjoying the opportunity to renew their relationship.
31 Jonathan Flavel confirms he was traumatised by your actions. He too has difficulty sleeping and experiences paranoia when at home. He is hypervigilant. He takes more time than usual to lock up the home and feels vulnerable whenever he is asleep. He suffered depression. He moved away from Geelong and quit his motor mechanic apprenticeship to start a totally different job to help reduce the memories of the past and the unease that he has felt. He attempted to speak to a counsellor but that has not assisted him with his feelings. He is now very socially withdrawn and lacks trust of other people. He limits social activities and is paranoid out in public, always watching his back. At work he very rarely speaks to anyone, just tries to keep to himself, he does his work and goes home. Recently he has been trying to make attempts to go to the gym, continuing learning martial arts and writing music.
32 Mr Kenny, on your behalf, conceded appropriately that this is a serious example of a serious type of offending of aggravated burglary and other offences. He acknowledged that the only penalty available to the court was the imposition of an immediate term of imprisonment. He confirmed that the offending was committed at a time when you were homeless and heavily affected by drugs.
33 Background information was provided in the contravention report that has been completed by Dianne Ellis, specialist case manager at Geelong Community Correctional Services. The writer confirms that you presented with a complex range of risks and needs arising out of your long term use of illicit drugs, past history of homelessness and mental health issues. She attributed your failure to adhere to the terms of your CCO by reason of those conditions as well as the chaotic lifestyle that you were living that appeared to have been exacerbated by reason of your homelessness following your release from gaol. You did not complete any community work hours and found it difficult to comply with all other conditions. She stated that you presented as somebody who is struggling with compliance who had fragility which she attributed to post traumatic stress disorder and anxiety. She tried to encourage you to seek mental health assistance.
34 In the course of your order you advised Ms Ellis of your past history of sexual abuse at the hands of Gerald Ridsdale for which she referred you to various services for counselling. She considered that you failed to make progress towards satisfying the conditions of your order despite being afforded discretion and support to do so, and recommended that your Community Correction Order be cancelled and that you be re-sentenced on the original charges.
35 I have had the assistance of two reports from Mr Jeffrey Cummins, consultant clinical psychologist, that were tendered in support of the plea in mitigation. He has seen you on 11 March 2015 and 23 March 2018. He sets out your background in full.
36 You are a person who has never married, you have two biological children and a stepdaughter. You were in a relationship with the stepdaughter's mother from age 15 to around age 26. There is a 19 year old son from that relationship. You also have a daughter from another relationship with whom you have no contact. You are not currently in a relationship. Your last relationship broke down two to three years ago.
37 You are the eldest of three boys. You have difficulties with both your younger brothers, one of whom you have a distant relationship with, the other lives with your elderly father in Geelong.
38 You have some visits in prison from your elderly father as well as your son and you keep in touch with your stepdaughter through communications with your son.
39 Mr Cummins provides extensive background history including the disclosure that you made to him relating to your abuse at the hands of Gerald Ridsdale at the family property shortly following your mother's death. The abuse occurred over a period of some 12 months or so when you were aged four or five and indeed I have sentenced Mr Ridsdale in respect to the offending that you were the victim of in a sentence imposed in this court on 31 August 2017.
40 Tragically, your mother was killed in a motor vehicle accident in which you were a passenger. The accident occurred when you were aged four. You and your two younger brothers were then raised by your father, a single parent at a small rural hamlet in Victoria known as Quantong.
41 You completed Grade 6 at Quantong Primary School and then attended Horsham Technical School and passed Year 8. You passed the equivalent of Year 10 whilst in custody.
42 You have very little by way of formal work experience. In your early 20s you did some work as a gymnastics coach and taught Thai boxing and intermittently worked casually on farms in Horsham and Geelong. There was also some history of working as a car wrecker. The last employment recorded was in your late 20s when you worked at an aquarium in Geelong.
43 At age 26 you were stabbed following which you had to have plastic surgery on your face and there is an obvious scar on your right cheek on the right side of your nose.
44 You have had a long term history of drug abuse commencing with smoking cannabis from about age 15 or so, injecting heroin from age 17. You have been prescribed methadone since your early to mid 20s. You started injecting amphetamine at age 17 and progressed to injecting methamphetamine at around age 30 to 31. In the past you have never had any residential drug detoxification or rehabilitation treatment.
45 Currently, I am satisfied that you are detoxed from drugs. Some negative urine samples were provided to the court, you also hold the position as peer listener at Marngoneet Correctional Centre, as a consequence of which you must not use drugs in order to be deemed suitable for this responsibility. You have been in that role since 12 January 2018.
46 Mr Cummins noted the offending occurred in the context of homelessness and living at a drug house in Corio. He was aware that you had disclosed to your worker about the historical sexual abuse. He recorded that you told him you just went downhill and you were using ice most days, shooting up between a point to a gram a day. You could not trust anyone. You had given evidence via video link to the Royal Commission into historical child sexual abuse and after that you had given up and you were just using ice.
47 You told Mr Cummins you did not know the victim Jonathan Flavel and you now feel terrible for what you have done. You said the rope was in the car that you had stolen.
48 He thought that you may have planned on doing something because you had a vague memory only of the balaclava coming from a mate's place.
49 You told Mr Cummins in custody you had been seen by a psychiatric doctor in March 2018, you had been medicated in the community with antipsychotics and antidepressants and recently you said you had been experiencing anxiety attacks, nightmares and flashbacks to do with being sexually abused as a child, and also with having been stabbed and punched.
50 You are currently on a dose of 80 milligrams of methadone daily, that has been reduced from 280 milligrams which was the dosage that you were on whilst in the community.
51 You have never had any formal mental health treatment and you have never had treatment either in the community or in custody for ongoing psychological and psychiatric issues. That is all relevant by way of background.
52 In your favour I have taken into account the mitigating factors that were highlighted by Mr Kenny. You entered a plea of guilty at a late stage in the proceedings just prior to the trial commencing. Nonetheless there is still real utility in the plea. You spared the State the cost and inconvenience and expense of the trial. Your plea is important particularly in the circumstances of this case where the victims of your crime have been so adversely affected and traumatised by your actions. You spared them the further trauma of having to come to court and give evidence on your trial. You have facilitated justice and your sentence will be discounted accordingly.
53 I consider the plea of guilty is also evidence of some remorse. I am satisfied that since you have been in custody detoxed, you have been thinking more clearly and that you are genuinely remorseful for the harm and terror that you caused.
54 Mr Cummins has diagnosed a complex post traumatic stress disorder. He stated that you do not present as being psychotic or schizophrenic and you did not present as having an obvious antisocial personality disorder, although you do clearly have a significant history of antisocial offending. He said at interview you revealed a dependent personality style which raises the possibility that you have unresolved attachment issues presumably related to the fact that your mother died when you were so very young.
55 Importantly, you expressed to him a willingness to undertake programs to address your underlying offending behaviour.
56 He said that you presented as being mildly moderately anxious and moderately depressed. You stated that you were feeling depressed about the nature of the offending which you described as being quite unacceptable and out of character.
57 I accept that the trauma of your past has to a large extent been a real contributing factor to your long term drug use, and in a way explains your extensive prior criminal history and offending behaviour.
58 I have had regard to the majority decision in Bugmy v The Queen.[1] The effects of your background of significant hardship do not diminish over time or with repeated offending and has been given full weight in formulating the sentence I am about to impose.
[1](2013) 302 ALR 192.
59 However given the violent nature of the offending, there is a concomitant need to provide for community protection.
60 You are somebody who does understand that what you did was wrong and you now accept responsibility for your behaviour.
61 Overall, I am guarded about your rehabilitation prospects.
62 It is important that you have expressed your willingness to participate in residential drug treatment and also mental health treatment.
63 Mr Cummins considers that you are now very ready to engage in mental health treatment which is something that you have never received to date. He reiterated it is imperative that you participate in anger management programs and also that you be offered general mental health treatment which should have a specific focus on your history of being sexually abused by Gerald Ridsdale. He considered having regard to your diagnosis of complex post traumatic disorder that the prognosis with respect to future offending is guarded and only likely to improve when you are able to remain drug free in the community.
64 Mr Cummins' report together with his comments and recommendations and my sentencing remarks will be provided to the relevant sentencing authorities to provide for guidance for your future.
65 In sentencing you the principles of general and specific deterrence are of significance together with denunciation. I must impost just punishment.
66 In all the circumstances a term of imprisonment is the appropriate disposition.
67 I do consider that this is a moment in time when you are probably at a turning point and that it is imperative that the correctional authorities give consideration to properly providing adequate mental health treatment to you to enable you to come to terms with the complexity of your past.
68 With appropriate support and by remaining drug free, that will enhance your future rehabilitation prospects. Those prospects are clearly contingent upon you being fully and properly supported in the community, having a stable residence upon your release, and appropriate rehabilitation and treatment in respect to drug and long term mental health issues.
69 I accept the expressed opinion of Mr Cummins that you suffer complex post-traumatic stress disorder and I consider therefore that your time in gaol will be more difficult than other prisoners who do not suffer from this condition. It is apparent that you are managing well in prison at this time, I do not consider there is a risk of your condition deteriorating but proper supports should be put in place to ensure that that condition is appropriately managed.
70 I have also had regard to what has been submitted to me this morning that for a year that you were held on custody at the MRC between the dates of June 2016 and July 2017, you were held in more onerous conditions as a result of the gaol riots that led to a restriction on prisoners' freedoms within the institution. I have taken that into account.
71 In formulating the appropriate sentence I have had regard to the principles of totality. There will be some cumulation between the various charges on the indictment to reflect the separate criminality.
72 I will now proceed to sentence you. If you could please stand Mr Harris. The formal court orders are as follows.
73 Charge 1 on the indictment, you are convicted and sentenced to 12 months' imprisonment
74 Charge 2, convicted and sentenced to five years' imprisonment and that is the base sentence.
75 Charge 3, convicted and sentenced to two years' imprisonment.
76 Charge 4, convicted and sentenced to two years' imprisonment.
77 Charge 5, convicted and sentenced to nine months' imprisonment.
78 I make the following orders for cumulation. Three months of the sentence imposed on Charges 1 and 4, six months in respect to the sentence imposed on Charge 3 are cumulative upon each other and upon the base sentence. That makes a total effective sentence of six years' imprisonment. In all the circumstances the Community Correction Order will be cancelled and you will be sentenced in respect to those charges. I have had regard to the contents of the contravention report and your degree of compliance.
79 In respect to the charge of contravention of the Community Correction Order imposed at Geelong Magistrates' Court on 25 Mach 2015, you are convicted and sentenced to one month imprisonment. The Community Correction Order is now cancelled and you are to be re-sentenced in respect to the charges of three burglary, three theft, one unlawful assault charge and one theft from shop. I have taken into account that you have already served nine months in respect to the sentence and the degree of compliance of your order.
80 You will be convicted and sentenced to an aggregate term of three months' imprisonment. I direct that that sentence be cumulative upon the sentence imposed in respect to the indictment.
81 The total effective sentence therefore is six years and three months, and I declare that you must serve four years and six months before being eligible for parole.
82 I make the following declaration of pre-sentence detention. I declare that you have spent 706 days in pre-sentence detention and direct that that be entered into the record of the court.
83 I make the disposal order sought and the compensation order sought.
84 In respect to the indictment I make the following s.6AAA declaration. But for your plea of guilty I would have imposed a term of imprisonment of eight years to serve six years' imprisonment.
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HER HONOUR: I think that covers everything. Have we got the orders?
MS McDONALD: Yes Your Honour.
HER HONOUR: I can sign those. I think my maths is right Ms Cannon, I checked a few times.
MS CANNON: I think it is right Your Honour.
HER HONOUR: All right thank you, thank you both for your attendance.
MS CANNON: Thank you Your Honour.
HER HONOUR: Mr Harris can be taken downstairs now. Thank you Mr Harris.
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Addendum Following the date of sentence, the Court of Appeal handed down two decisions addressing s.83AS of the Sentencing Act 1991;Luu v R [2018] VSCA 92 (16 April 2018) and Bieljok v R [2018] VSCA 99.
85 Both provide that when a court is faced with a Contravention of a CCO that was imposed in combination with a sentence of imprisonment, the Judge ought to set aside the whole sentence imposed (that is, by cancelling the CCO and setting aside the term of imprisonment earlier imposed). The Court would then sentence afresh, with pre-sentence detention being declared (including the time already served by the offender under the original sentence of imprisonment).[2]
[2]Luu v R [2018] VSCA 92 [21]-[23].
86 On the date of sentence (11 April 2018), Her Honour dealt solely with part of the combination sentence which resulted in the imposition of the CCO. Accordingly, on 23 May 2018, Her Honour amended the final orders to set aside the whole sentence imposed at the Geelong Magistrates' Court on 25 March 2015. The amendments were made pursuant to section 104B of the Sentencing Act 1991.
87 The final orders are as follows:
Charge 1 – Convicted and sentenced to 12 month/s imprisonment.
Charge 2 – Convicted and sentenced to 5 year/s imprisonment.
Charge 3 – Convicted and sentenced to 2 year/s imprisonment.
Charge 4 – Convicted and sentenced to 2 year/s imprisonment.
Charge 5 – Convicted and sentenced to 9 month/s imprisonment.
Unrelated Summary Charge 9 – Having been brought back this day for contravention of the Community Correction Order imposed at Geelong Magistrates' Court on 25 March 2015, the following Order/s are made:
Convicted and sentenced to 1 month/s imprisonment.
Sentence imposed at the Geelong Magistrates' Court on 25 March 2015 is set aside.
Re-sentenced on the original charges (Unrelated Summary Charges 1, 2, 3, 4, 5, 6, 7, 8) – Convicted and sentenced to 12 month/s imprisonment.
Direct that 3 months of the sentence imposed on charges 1, 6 months of the sentence imposed on charges 3, 3 months of the sentence imposed on charges 4, 12 months of the sentence imposed on unrelated summary charges 1, 2, 3, 4, 5, 6, 7 and 8 be served cumulatively upon each other and upon the sentence imposed upon charges 2.
Total Effective Sentence (State) is 7 years imprisonment.
Direct that the minimum term to be served before being eligible for parole is 4 years 6 months imprisonment.
Further declare the period that the prisoner has been in custody in respect of these offences namely 981 days be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.
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