Director of Public Prosecutions v Harris
[2015] VCC 690
•25 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00145
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA HARRIS |
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JUDGE: | His Honour Judge Lacava | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March 2015 | |
DATE OF SENTENCE: | 25 May 2015 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2015] VCC 690 | |
REASONS FOR SENTENCE
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Subject: Armed Robbery
Sentence: 4 Years CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms A. Kapotaniak | |
| of Public Prosecutions | ||
| For the Accused | Mr C. Watson |
HIS HONOUR:
1 Joshua Harris, you have pleaded guilty to one charge of armed robbery. The maximum sentence for armed robbery is 25 years imprisonment. You can therefore conclude that the parliament of this State regards this offence as being very serious. The circumstances of your offending are set out in a prosecution summary dated 11 March 2015 which I marked as Exhibit A on the plea.
2 The summary I was told by your counsel was accurate and formed a proper basis upon which I can proceed to pass sentence upon you. It is not necessary that I hear set out in any detail what is therein contained, but anyone reading these sentencing remarks hereafter should have regard to what is contained in the prosecution summary.
3 In short, on 4 October you were visiting a friend and as the victim in this case was simply walking along the footpath you confronted him with a - what is described as a blue bar and threatened to use it if he did not give you his bag, which was a backpack that he was carrying, and other items. The items consisted of a iPhone 5 and charging cable, some, what are described as Vogue work knives, a wallet containing a Myki Card and other items.
4 This was, I think, a very unsophisticated, unplanned, but nevertheless an armed robbery. You were identified as being the likely offender and arrested shortly thereafter. You were remanded in custody between 23 October 2014 and 5 November 2014, and you were then bailed which was removed on 2 December 2014, and re-bailed on 15 January this year. In total it is agreed that you have spent 59 days in pre season detention.
5 When you were arraigned you admitted a number of prior convictions which are detailed on a LEAP report dated 25 February of this year. You have a number of prior convictions for dishonesty offences, and some other - what might be described as anti social offending for which on a number of occasions you have been dealt with in the Children's Court. But in fairness to you those prior matters, in terms of the kind of offending that you have engaged in, pale away into insignificance almost by the nature of the offence that you pleaded guilty to here. You have by committing this offence entered a league of offending that you have not previously entered.
6 As I say, this was a, I think, although an armed robbery it falls towards the bottom end of the scale for that kind of offending. Your counsel Mr Watson provided me with a very helpful and detailed outline of submission in which he highlighted a very large number of mitigating factors which have to be taken into account in your case. Those mitigating factors have convinced me that I should not impose a sentence which will see you returned to immediate prison. He asked me to impose a community corrections order which I will do, and the prosecution in the circumstances agrees that having regard to your personal situation a community corrections order is within the range, even for this kind of offending, which everyone agrees, is most serious and in most cases would result in a term of imprisonment to be immediately served.
7 You are now just turned 22 years of age on 14 April of 2015. When the matter was first before me you were then 21, but in my view it does not make any difference in this case, I regard you as a youthful offender and one in which the disposition imposed by me must have full regard to the rehabilitation of you, and to ensure that you are able to access appropriate treatment, and counselling so as to ensure that you do not reoffend.
8 You grew up in Moe with your mother and stepfather. Your mother and stepfather have four children, you are the eldest and you also grew up with two cousins who were adopted by your mother. You have been diagnosed with borderline level of intellectual functioning, and that was diagnosed when you were 12 and it was first thought that you were autistic when you were 14.
9 You struggled at school. You attended numerous primary schools, and you have completed to Year 9 level. You were physically and verbally abused by your stepfather as he attempted to control you. You first left home when you were 11. Since then and over preceding years you have moved between family members, friends, refuges and then back home
10 You commenced heavy cannabis abuse when you were about 17, and that coincided with frequent dishonest offending which is recorded in your prior convictions. You engaged in heavy alcohol abuse, and you have also engaged in the use of the methamphetamine drug known as ice. Importantly I think - and this is drawn out in the submissions of Mr Watson - that you have no prior convictions for acts of violence. There are no prior convictions for assault, or armed robbery. You have no completed the CISP Program having been before the Magistrates' Court recently, and dealt with by the learned Chief Magistrate who also imposed a community corrections order, or two community corrections orders which I am cognisant of.
11 Your counsel acknowledged that the offending that you engaged in was frightening for the victim who was but an innocent bystander, and he also acknowledged that you used some threatening words which was an aggravating feature, and that you were holding a blue pole. But he pointed out that your offending was not premeditated which I accept, and it lacks sophistication, and from what I have already said I accept that. You made no attempt to disguise yourself, to hide the weapon, or dispose of the stolen items.
12 At the time of the offending you had issues with homelessness after leaving your grandmother's home a month earlier, you consumed a bottle of Scotch that morning. You made full admissions and were cooperative with the police. You pleaded guilty to this discharge at an early time, and it has never really been in contest, I treat you as having pleaded guilty at the earliest available opportunity. Having done so you are entitled to the full benefit of a discount on that account, and that will be reflected in the sentence that I will shortly pass.
13 You have been diagnosed with having a communication disorder, and you have a history of emotional and physical abuse which have left you socially marginalised. I received into evidence a number of helpful reports. First of all I received a report from Professor Andrew Carroll, a consultant forensic psychiatrist, and a report from Mr Jeffrey Cummins. I have had full regard to the contents of those reports. Mr Cummin concurred with the diagnosis of Associate Professor Carroll of a social (pragmatic) communication disorder characterised by persistent difficulties with the social use of verbal, and non verbal communication and manifested in deficits in using communication for social purposes.
14 You suffer from impairment of the ability to change communication to match context, or the needs of a listener. You suffer from difficulties following rules for conversation and storytelling. You have difficulties understanding what is not explicitly stated. Mr Cummins also thought - and I accept - that you suffer from a chronic adjustment disorder with mixed anxiety, and depression and features of traumatisation. He thought that your condition was chronic and triggered by your dysfunctional history.
15 I accept that you told Mr Cummins that you were ashamed of doing the armed robbery, that you are petrified about returning to prison. I accept you are remorseful, and I accept that if given proper treatment and counselling you have reasonable prospects for a full rehabilitation. As I say, the sentence that I will impose is designed to achieve this end.
16 I also received a report this morning that you have satisfactorily completed the CISP Program conducted by the Magistrates' Court, and all of that is to your credit. The purpose of sentencing is to in part punish and in part to deter offenders both generally and specifically from reoffending, and to impose a sentence the denounces the conduct of the offer.
17 With this offence normally the principles of general deterrence guide the sentence, and it is for that reason that in most cases a sentence will involve a term of imprisonment. In this matter I do propose to impose a term of imprisonment, but it will only be for the 59 days already served and there will be a declaration of 59 days presentence detention. I propose to impose a community corrections order with conditions I having now obtained a report dated this day that you are suitable for the entering into such a program.
18 Mr Harris, on the charge of armed robbery you will be sentenced to a term of imprisonment of 59 days, but I declare that there has been 590 days presentence detention, and I direct that that be reckoned as having been already served under the sentence passed this day.
19 In addition I make a community corrections order for a period of four years. I make it a condition of that order that you perform 100 hours community work. I note that under previous community corrections order imposed by the learned magistrate, which will run concurrently with this order that I will make, that you have already been ordered to serve - sorry, to complete 200 hours community work, this will make 300 hours. I did not want to impose community work which would be unduly burdensome, but I will direct that you undergo treatment and assessment for treatment, and rehabilitation and drug assessment and treatment, and alcohol assessment and treatment and mental health assessment and treatment, the conditions of which are all set out in the community corrections order.
20 I also direct that you engage in offending behaviour programs as directed by the Dandenong office of the Community Corrections. For the purposes of s.6AAA of the Act I say that had it not been for you plea of guilty to the charge I would have imposed a term of imprisonment of four years, and I would have directed that serve at least two and a half years of that sentence before being eligible for release on parole.
21 Mr Harris, you must understand that the community corrections order which I am imposing is for a period of four years with a conviction, do you understand?
22 ACCUSED: Yes.
23 HIS HONOUR: If you reoffend during the term of this community corrections order, and commit any offence punishable by a term of imprisonment you will be brought back before me and can be resentenced, do you understand?
24 ACCUSED: Yes, Your Honour.
25 HIS HONOUR: And re-dealt with.
26 ACCUSED: Yes.
27 HIS HONOUR: The sentence is imposed to try and help you, do you understand?
28 ACCUSED: I understand.
29 HIS HONOUR: And to bring about your full rehabilitation.
30 ACCUSED: Yes.
31 HIS HONOUR: So I do not want to see you back here again in other words, do you understand that?
32 ACCUSED: Yes I do.
33 HIS HONOUR: Very well. Do we have the order? Are there any matters arising out of that, Mr Watson?
34 MR WATSON: No Your Honour.
35 HIS HONOUR: Ms Katotaniak?
36 MS KATOTANIAK: No Your Honour.
37 HIS HONOUR: Just come forward out of the dock if you would please, Mr Harris, to sign these papers. Very well, I have signed that order. Mr Watson, will you make sure that your client understands the terms of that order before you part company today?
38 MR WATSON: Yes Your Honour.
39 HIS HONOUR: Particularly that he has got to report in the next 48 hours.
40 MR WATSON: Yes Your Honour. I believe there's an appointment being arranged as well - - -
41 HIS HONOUR: Yes, but I just don't want this to get off on the wrong start, do you know what I mean?
42 MR WATSON: Yes Your Honour.
43 HIS HONOUR: So if you could emphasise that to your client I'd be grateful.
44 MR WATSON: As Your Honour pleases.
45 HIS HONOUR: Thank you for your help and your submissions. Thank you Ms Katotaniak.
46 MR KATOTANIAK: If the court pleases. Thank you Your Honour.
47 PRISONER RELEASED
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