Director of Public Prosecutions v Harris

[2024] VCC 1135

IN THE COUNTY COURT OF VICTORIA
CRIMINAL JURISDICTION
AT MELBOURNE Revised
Not Restricted
Suitable for Publication

CR-23-02163
CR-24-00186

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL HARRIS

and

NICHOLAS HILL

Accused

Accused

JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2024
DATE OF SENTENCE:	26 July 2024
CASE MAY BE CITED AS:	DPP v Harris & Anor
MEDIUM NEUTRAL CITATION:	[2024] VCC 1135

REASONS FOR SENTENCE
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Subject:   Home Invasion
Catchwords:             Guilty plea – below mid-range offending
Legislation Cited: Sentencing Act 1991 (Vic), s 5(2G); s 5(3) and s 10(AC).

Cases Cited:Hogarth v the Queen (2012) 37 VR 658; DPP v Meyers (2014) 44 VR 486; DPP (Vic) v O’Brien (2019) 288 A Crim R 1; DPP v Paul Milson [2019] VSC 55; Dirbass v The Queen [2018] VSCA 272; Wong v The Queen (2001) 207 CLR 584; Hafner v The Queen [2012] VSCA 190; Drew Grey v The King [2024] VSCA 75; Carter (a pseudonym) v The Queen (2018) 272 A Crim R 170; DPP v Harris [2020] VCC 1012.

Sentence:                 Harris: Total effective sentence of 4 years’ imprisonment with a
  non-parole period of 3 years

Hill: total effective sentence of three years imprisonment with a non-parole period of two years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Glass	Solicitor Office of Public Prosecutions
For the Accused Harris	Mr S Ranjit	Papa Hughes Lawyers

For the Accused Hill                         Mr J Miller  Balmer & Associautes

HIS HONOUR: 

1Michael James Harris and Nicholas Phillip Hill, you have each pleaded guilty to:

(a)   one charge of home invasion; and

(b)   one charge of causing injury intentionally.

2The maximum penalty for home invasion is 25 years imprisonment.

3The maximum penalty for causing injury intentionally is 10 years imprisonment.

Circumstances of offending

4The circumstances of your offending are set out in the prosecution summary of facts.[1] They are agreed facts.

[1] Exhibit A: Amended Summary of Prosecution Opening for Plea dated 9 February 2024.

5On 26 August 2023, the two of you went to a home at Officer.

6You, Harris, were looking for Jayden O’Neill, with whom you had a grievance.

7You arrived about 1:30 AM. Joshua Wilson[2] was home alone. He was on his computer.

[2] A pseudonym.

8You, Harris, got his attention, through a closed window, and asked him where O’Neill was. Wilson told you he did not know O’Neill and there was no one living there by that name. An argument, between the two of you, followed.

9When you, Harris, tried to force open the window, Wilson fearing you would break into his home, called 000 for help.

10The two of you kicked the front door open and got into the house. You, Harris, were first in. You, Hill, followed with a baseball bat.

11You, Harris, grabbed Wilson, who was talking to emergency services on his phone, in a headlock and you Hill, struck him to the leg with the baseball bat. He fell onto a chair.

12You, Harris, grabbed Wilson around the throat and you, Hill, punched and hit him. The two of you repeatedly asked him where O’Neill was hiding. Wilson kept telling you he did not know where or who he was. You, Harris grabbed him around the throat him and head-butted him, while you, Hill, punched him.

13You, Hill, took off your belt and forced it around Wilson’s neck. Using the belt, you flung him to the ground and then dragged him to his feet and, you, Harris punched him to his face.

14Police arrived and arrested the two of you inside the house. They found Wilson with the belt around his neck.

15By your guilty plea, each of you admits you entered the home as a trespasser, in company with each other, and, at the time of entry, you intended to assault a person inside, and had with you an offensive weapon, namely the baseball bat.

16Wilson suffered a broken nose, other facial injuries and bruising and abrasions to his neck and back. He also had two broken teeth.[3]

[3] Exhibit E: Photographs of the victim’s injuries.

17In the opinion of a forensic medical officer, Dr Sonia Chanchlani, his injuries were consistent with blunt force trauma to his eye region, nose, ears, neck and back, and strangulation, in the medical sense, and being dragged across a surface. His multiple injuries indicated multiple impacts. [4]

[4] Exhibit B: Report of Dr Sonia Chanchlani, Forensic Medical Officer VIFM

Arrest and interview

18When police questioned you, Harris, you exercised your right to remain silent.

19You, Hill, told police you were not proud of putting the belt around Wilson’s throat and did not know why you did it.

20You were both charged with various offences and were remanded in custody.

21You entered your guilty plea to the charges now on the indictment, before a committal hearing.

Victim Impact

22Mr Wilson made a victim impact statement.[5]

[5] Exhibit C: Victim Impact Statement of [Joshua Wilson].

23Because of the trauma of your attack, he missed his exams and lost two weeks work. He dropped out of university and stopped playing sport because he felt unsafe among strangers. He has a lingering feeling of distrust of people and is hypervigilant, particularly during social situations.

Criminal record – Harris

24You, Michael Harris, have admitted a criminal record.

25On 17 May 2013, at Dandenong Magistrates’ Court, you were sentenced to 3 months imprisonment and a 12-month community correction order for driving offences, including reckless conduct endangering serious injury and dangerous driving while pursued by police.

26On 26 March 2015, at Dandenong Magistrates’ Court, you were sentenced to 18 months imprisonment with a non-parole period of nine months for driving and dishonesty offences.

27On 29 February 2016, allowing your appeal from the Magistrates’ Court, a judge of this court sentenced you to 2 years and nine months imprisonment, with a non-parole period of 16 months for driving offences including reckless conduct endangering serious injury.

28And, in the County Court at Melbourne on 10 July 2020, you were sentenced to 3 years and six months imprisonment with a non-parole period of two years and three months for home invasion, intentionally cause injury and driving offences including reckless conduct endangering serious injury. [6]

[6] Exhibit D: Reasons for sentence dated 10 July 2020, Judge Gucciardo

Personal circumstances – Harris

29You were born in January 1992. You were 31 years old when you committed these offences crimes. You are now 32.

30Your personal circumstances are set out in the report of Alison Mynard, [7] consultant psychologist, who assessed you on 17 April 2024.

[7] Exhibit HR2: Report of Alison Mynard.

31You have a younger sister and a younger half-brother.

32When you were eight years old, your father left your mother for her sister.

33The family was “broken badly”. You lived with your mother and sister. You had irregular contact with your father. You went to four different primary schools. In year seven, you went to live with your father. At the end of that year, you left school and got a job at a car wrecking yard and then at a quarry, where your father worked.

34In your teenage years, you started using cannabis, then speed and ecstasy. You developed a daily methamphetamine habit and drank alcohol excessively.

35You had periods of enforced abstinence when you were imprisoned and, for a 12-month stint when you were on parole.

36After your release from prison in 2022, you were working and not using drugs.

37When you were 15, you had a son, who lives with his mother and stepfather. You have had some limited contact with him.

38You have a daughter, who is now aged 11, from another relationship. On occasion, you cared for her full-time.

39You have been in a relationship with Casey for a number of years. You have a four-year-old son with her.

40You were living with Casey, your son and her nine-year-old daughter, when you offended. You felt things were going okay until you suspected Casey was being unfaithful.

41As you told Ms Mynard, Casey had gone away for the weekend and you were looking after the children at your boss’s home, at Nyora, where you were drinking with Hill, who is your boss’s son. You suspected Casey was cheating on you with your friend, Jayden O’Neill. In a phone call, Jayden told you nothing had happened, but you nevertheless went to the house at Officer to confront him. You took Hill with you.

42You told Ms Mynard when you arrived at the house, a man inside said he did not know Jayden and told you to leave. You said you were agitated. You said, when the man was abusive, you got angry and broke into his home.

43According to Ms Mynard, you understand your victim must have felt significant distress when you attacked him, late at night and in company with Hill. You admitted you were drunk; but for that, you believe you would have acted differently. You realise you should have left the property and are disappointed in yourself because you did not.

44In Ms Mynard’s opinion, since childhood, you have suffered chronic and persistent depressive symptoms. You meet the DSM-V diagnostic criteria for major depressive disorder. You also have intermittent symptoms of anxiety.

45In her opinion, prison will be harder for you than someone without your depression because your mood will deteriorate due to your separation from your children and despair for the future.

46In her opinion, while psychological treatment and antidepressant medication will help you, you need to work through your past and family issues to find your own resolution. She believes your prospects of rehabilitation will be greater if you do.

47While in prison, you have completed the comprehensive ATLAS suite of behavioural programs. [8]

[8] Exhibit HR3 and HR4: Certificates of completion.  

48You have work as a billet and are prescribed medication for your depression.

49Your partner has stuck by you. She brings the children to visit you.

50Your sister and father, together with your stepmother, stepsister and your best friend supported you at court.

51You have a close relationship with your sister. Your father remains supportive. They have seen you be a kind and loving father,[9] and a hard worker who will help others in need. To them, you have expressed regret for your actions and accepted responsibility for them. [10]

[9] Exhibit HR5: Reference from your sister.

[10] Exhibit HR6: Reference from your father.

52You have written a letter of apology to Mr Wilson.

53Upon your release from prison, your father will have you home and you hope Mr Hill’s father will re-employ you.

Defence submissions – Harris

54Your counsel, Mr Ranjit, acknowledged the seriousness of your offending.

55He submitted, I should be satisfied you attended the Officer address, not to assault, but to confront O’Neill and you formed the intention to break into the house to assault Wilson only after the verbal argument between him and you.

56In his submission, it follows your offending is objectively less serious than cases like Hogarth[11] and Meyers[12] which involved a premeditated violent confrontation.

[11] (2012) 37 VR 658.

[12] (2014) 44 VR 486.

57He acknowledged your criminal history, particularly your 2020 home invasion conviction for which you were sentenced to two and half years’ imprisonment, increases your moral culpability and the importance of specific deterrence. However, in his submission, this conviction is not a circumstance of aggravation of the index offending. As the Court of Appeal explained in Dirbass,[13]the submission is correct.

[13] [2018] VSCA 272, [52] and [58] – [59].

58In mitigation of penalty[14] , he submitted:

(a)   you are entitled to a “meaningful discount” in your sentence for your early guilty plea, for its utilitarian value and because it demonstrates your willingness to accept responsibility for your offending and your remorse; and

(b)   because of your depression, prison will be harder for you than a prisoner in normal health.

[14] See written submissions, exhibit HR1.

59He submitted, your completion of a restrictive 12-month period of parole in 2022 and 2023, and your constructive response to your remand incarceration are positive indicators for your rehabilitation.

Criminal record – Hill

60Nicholas Hill, you have no criminal record.

Personal circumstances – Hill

61You were born in May 1992. You were also 31 years old when you offended. You are now 32.

62Your personal circumstances as set out in the psychological report of Carla Ferrari, who assessed you on 5 and 12 March 2024. [15]

[15] Exhibit HL2: Report of Dr Carla Ferrari.

63You are the oldest of five children.

64Your father runs a car wrecking business. You have shared an interest in motor car racing with him. [16]

[16] Exhibit HL 5: Reference of your friend, Jayde Aarts.

65Your parents separated when you were 16 years old. It seems your father was working and drinking hard.

66Both your parents, other family members and several friends supported you at court.

67You struggled at school and left in year nine.

68You completed a fitter and turner’s apprenticeship and worked for the Pump Doctor and Hy Gain Feeds. You then returned to work for your father.

69When you offended, you were working in your father’s business, which also employed Mr Harris as a mechanic. You were living in a home, at Longwarry, which you purchased around 2014.

70At 23, you were diagnosed with ADHD and have been prescribed ongoing medication. [17]

[17] Exhibit HL4: Psychiatric report of Dr Peter Heffernan.

71During your mid to late 20s, you experienced a number of traumatic events.

72At 25, your six-year relationship ended. You did not see it coming and fell into depression.

73When you were 26 or 27, you discovered your former partner’s friend had hanged herself in a shed and you had to cut her down.

74Around 6 to 12 months later, you were present when your cousin suffered life-threatening burns in a bonfire accident. Afterwards, you visited him daily in hospital. [18]

[18] Exhibit HL3: Reference of Mitchell Hill.

75When you were 29 years old, you witnessed your father’s involvement in a serious racing accident. [19]

[19] Exhibit HL 9: Reference of your auntie, Debbie Hill.

76In his absence, you had to “step up” to take on the responsibility for managing the business, which the family relied on for financial support.

77You began drinking excessively to numb yourself and you were eating poorly.

78In the months prior to your offending, with family encouragement, you consulted your doctor to obtain a mental health treatment plan. [20]

[20] Exhibit HL6: Reference of Douglas Pratt.

79Ms Ferrari reported you meet the psychological testing criteria for PTSD, major depressive disorder and ADHD.

80In her opinion, especially as a first offender, these disorders make prison harder for you and there is a risk of deterioration in that environment.

81You have been having regular, privately paid, counselling sessions with another psychologist, from Ms Ferrari’s practice, to help you address the impacts of your conditions.

82In prison you have completed the “Doing Time” remand program. [21] You have also completed several behavioural and vocational programs. [22]

[21] Exhibit HL7: Certificates of completion.

[22] Exhibit HL 8: certificates of completion.

83You have earned the privilege of living in one of the prison cottages, where you work as a billet.

84When you are released from prison, you will return to the family business and live in your home. Your family is making your mortgage payments while you are in custody.

Defence submissions – Hill

85Mr Miller, who appeared on your behalf, acknowledged the seriousness of your offending.

86In mitigation of penalty, [23] he relied on:

(a)   your early guilty plea;

(b)   your remorse;

(c)   your otherwise good character; and

(d)   your mental health conditions, which will make prison harder for you, and which likely deteriorate in that environment.

[23] Exhibit HL 1, sentencing submissions

87He submitted, considering you have no criminal record, you have a good work history and a supportive family, and you have used your time in prison productively, your prospects of rehabilitation are positive.

88He submitted there are differences between the cases of Harris and you, which justify the imposition of a lower sentence upon you.

Prosecution submissions

89Mr Glass, who appeared for the prosecution, submitted, because of the objective seriousness of your offending, a prison sentence with a non-parole period fixed is the only appropriate sentence.

90He submitted, considering:

(a)   at the point of entry, you intended to assault Wilson, who you knew was inside his home;

(b)   you forced the front door to gain entry;

(c)   you were together in company;

(d)   one of you was carrying a weapon; and

(e)   it was 1:20 AM,

yours is a serious instance of home invasion.

91He submitted your home invasion was premeditated.

92In support of this proposition, he submitted, considering you drove some 50 km to confront O’Neill, that you went in company, and one of you was armed with a baseball bat, I should conclude you both had formed an intention to assault O’Neill at the Officer address when you left Nyora.

93He submitted, it follows, the moral culpability of the two of you is high.

94He submitted, because you, Harris, instigated the offending, due to your anger with O’Neill, and because you had committed a similar serious crime in January 2020, your moral culpability is higher.

95He acknowledged each of you is entitled to a sentencing benefit for your early guilty plea.

96He accepted, because of your depressive disorder, prison will be harder for you, Harris.

97He also accepted your psychological conditions, Hill, will make prison harder for you, and they will likely deteriorate in that environment.

98He submitted, considering you are a first offender, Hill, your rehabilitation prospects should be viewed as good.

99He submitted, because you, Harris, have previously been imprisoned for a strikingly similar crime and committed these offences within two months of the expiration of the sentence imposed for it, your rehabilitation prospects should be viewed as poor or guarded.

Consideration

100Home invasion is a particularly nasty form of criminal conduct. [24]

[24] Hogarth (2012) 37 VR 658, [1].

101Mr Wilson was entitled to feel safe in his home.

102No doubt, he was terrified when the two of you confronted him in the middle of the night.

103One of you, Hill, was armed with a baseball bat. You both were alcohol fuelled. You forced open the front door, intending to assault Wilson, a stranger, whose only vice was to have argued with you, Harris, when you said you were looking for O’Neill.

104You, Harris, had a perceived grievance with O’Neill. You instigated the trip to Officer where you believed O’Neill lived.

105The two of you drove some 50 km. Doubtless, you, Harris, intended to confront O’Neill.

106Considering you, Hill, have no history of violence, I am prepared to accept it is more likely you carried the baseball bat to deter violence rather than cause it. And, considering, you, Hill, initially sought to verbally get Wilson’s attention from outside, through a window, and only after the argument with him, forced your way inside the house, I am not satisfied beyond reasonable doubt you had driven from Nyora to assault O’Neill.

107I am satisfied you likely formed an intention to assault Mr Wilson at the point you forced your way into the premises.

108While your offending is serious, I assess it to be a below mid-range example of the crime of home invasion.

109While your forced entry into Mr Wilson’s home was a frightening ordeal, which has caused him significant harm, his physical injuries were not serious.

110Nevertheless, as the Court of Appeal stated in DPP (Vic) v O’Brien,[25] “[t]hose considering such antisocial conduct must know that stern punishment will follow their apprehension”.

[25] (2019) 288 A Crim R 1 at [37].

111Home invasion is a category 2 offence under the Sentencing Act. Imprisonment is the legislated norm. [26]

[26] Sentencing Act 1991 (Vic), ss 5(2G) and 10(AC).

112There are mitigating circumstances which moderate the sentence I impose.

113Firstly, both of you are entitled to a demonstrable sentencing benefit for your guilty plea. It has high utilitarian value because it has spared your victims the stress of a trial. [27] It also demonstrates your acceptance of responsibility for your actions and your willingness to facilitate the course of justice.

[27] Carter (2018) 272 A Crim R 170, [75].

114Secondly, I accept you are both remorseful.

115Thirdly I accept, because of your respective psychological conditions, prison will be harder for both of you than a person in normal health.

116In your case, Hill, I also accept there is a risk your psychological conditions will deteriorate in the prison environment.

117The rehabilitation of each of you is an important sentencing consideration.

118As the Court of Appeal restated in DPP v Paul Milson[28], “… it is easy to forget that the protection of the community ultimately is best served by the rehabilitation of the offender.”

[28] [2019] VSCA 55,

119Regrettably, in your case, Harris, previous prison sentences have not deterred you from re-offending. On 17 January 2020, you committed a strikingly similar crime when you went to a home, in company with another, with a grievance against one of the occupants, forced your way in and assaulted someone inside. I have read Judge Gucciardo’s sentencing reasons. [29] For that crime, you were sentenced to 2 and a half years imprisonment.

[29] [2020] VCC 1012, 10 July 2020.

120Concerningly, you reoffended within two months of the expiration of the overall sentence His Honour imposed.

121While I must be cautious about your prospects of rehabilitation, I am encouraged by your constructive use of your time in prison since your arrest, and by the staunch support of your family and friends. I accept you genuinely want to be a good parent, which is strong motivation to reform, and I am hopeful you will not reoffend.

122I will fix a minimum term which appropriately mitigates your punishment and promotes your rehabilitation.

123You, Hill, are a first offender. You have no history of violence. It is a protective factor for rehabilitation.

124Other protective factors are your good work ethic, supportive family and productive use of your prison time.

125I assess your prospects of rehabilitation to be good.

126Considering you are a first-time prisoner, with favourable rehabilitation prospects, I will fix a longer than usual parole period in your sentence.

Totality

127Because each of you is to be sentence for more than one offence, I will impose a total effective sentence which, in each case, properly reflects your overall criminality.

Parsimony

128In accordance with the parsimony principle, I will impose a sentence that is no more severe than that which is necessary to achieve the purposes of sentencing. [30]

[30] Sentencing Act 1991 (Vic), section 5(3).

Parity

129The parity principle requires that those who commit the same or similar offences should be treated equally, except where differences in the respective offenders’ offending and personal circumstances justify the imposition of different sentences. [31]

[31] Wong v The Queen (2001) 207 CLR 584, [65]; Hafner v The Queen [2012] VSCA 190, [17]; Drew Grey v The King [2024] VSCA 75, [61] – [62]

130In my view, there is a basis to differentiate between the sentence I impose on you Harris and the sentence I should impose on you, Hill.

131While the two of you acted in company, and you, Hill, were an active participant, who used a baseball bat and a belt to assault Wilson, considering:

(a)   Harris held the grievance and instigated the offending;

(b)   he broke into the house first, after arguing with Wilson;

(c)   specific deterrence is relatively more important in his case, because of his criminal history; and

(d)   your lack of prior convictions is an additional protective factor for your rehabilitation,

I will impose a lower sentence on the home invasion offence and a lower total effective sentence on you.

Conclusion

132Mr Harris and Mr Hill, by the sentence I impose, I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. As well, I must also look to your rehabilitation.

133Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, Mr Harris:

(a)   on the charge of home invasion, you are sentenced to 3 years and 9 months imprisonment. This is your base sentence.

(b)   on the charge of causing injury intentionally, you are sentenced to 12 months imprisonment.

134I direct three months of your sentence on this charge be served cumulatively with your base sentence.

135Your total effective sentence is 4 years imprisonment.

136I fix a minimum term of two years and six months before you are eligible for parole.

137I declare you have served 334 days of your sentence by way of presentence detention.

138Whilst there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to 5 years and 6 months imprisonment and fixed a minimum non-parole period of 3 years and 6 months.

139Mr Hill:

(a)   on the charge of home invasion, you are sentenced to 2 years and 9 months imprisonment. This is your base sentence.

(b)   on the charge of intentionally caused injury you are sentenced to 12 months imprisonment.

140I direct three months of the sentence on this charge be served cumulatively with your base sentence.

141Your total effective sentence is three years imprisonment.

142I direct you serve a minimum term of one year and six months before you are eligible for parole.

143I declare you have served 334 days of your sentence by way of presentence detention.

144While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to 4 years imprisonment and fixed a minimum term of 2 years and 9 months.

145I make an order for the disposal of the baseball bat and belt which police seized.

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