Director of Public Prosecutions v Harris

[2020] VCC 175

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

CRIMINAL DIVISION

  Revised
Not Restricted
Suitable for Publication

GENERAL LIST

CR-19-00876
Indictment No. K10397171

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW HARRIS

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Warrnambool
DATE OF HEARING:	24 February 2020
DATE OF SENTENCE:	27 February 2020
CASE MAY BE CITED AS:	DPP v Harris
MEDIUM NEUTRAL CITATION:	[2020] VCC 175

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW      
Catchwords:             Sentence – aggravated burglary – theft - plea of guilty
Legislation Cited:     Crimes Act 1958 (Vic), ss 74, 77
Cases Cite:              Comensoli v The Queen [2020] VSCA 2
Sentence:                 Total effective sentence of 4 years and 4 months’ imprisonment with a

non-parole period of 3 years and 2 months.

Section 6AAA declaration: 7 years’ imprisonment with a non-parole

period of 5 years and 7 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Cordy	Solicitor for the Office of Public Prosecutions
For the Accused	Ms L Hartnett	Adrian Paull Criminal Lawyers

HIS HONOUR:

1.Andrew Harris, you have pleaded guilty to two charges of aggravated burglary, (Charges 1 and 3), for which the maximum penalty is a term of imprisonment of 25 years; two charges of theft of a motor vehicle (Charges 2 and 4), for which the maximum penalty is a term of imprisonment of 10 years; and one Summary Charge of unlawful assault with a weapon, for which the maximum penalty is a term of imprisonment of two years. 

2.Tendered on the plea as exhibit 1, was a Summary of Prosecution Opening dated 1 August 2019. I incorporate that document into my reasons for sentence. In brief, the circumstances of your offending were as follows. 

3.At approximately 6:20pm on the evening of Saturday 26 January 2019, you went into the garden shed at the rear of premises at 24 Hoki Street, Warrnambool, and removed a metal pitchfork before entering the house via a back door, still carrying the metal pitchfork. You then confronted the occupant, Ms Lois McInnes, and told her that you had been hiding in the backyard and that you were on ice, a reference to methamphetamine. This is Charge 1, aggravated burglary.

4.As Ms McInnes moved away, you held the pitchfork about six inches from
Ms McInnes' face and said, 'Give me the fucking keys’.  Ms McInnes complied with your request and provided you with her keys.  As you exited her premises, you ripped the landline cables from the wall so she could not use her landline to call for assistance. This is the Summary Charge, unlawful assault with a weapon.  Ms McInnes pointed at the door leading to the garage as you continued to hold the pitchfork in your hand.  You left in Ms McInnes' vehicle, a 2016 Kia Cerato.  This is Charge 2, theft of a motor vehicle.

5.You drove the vehicle for approximately two kilometres before abandoning it.  Shortly after abandoning the vehicle, at about 6:30pm you then attended another address at 200 Horne Road, Warrnambool. Ms Lynette Sheen was present at the property visiting her daughter.  You entered via an unlocked door. 
Ms Sheen found you pacing around her daughter's lounge room.  You told
Ms Sheen that you were ice affected, that you would not hurt her but that you had previously hurt someone else and that there was a chopper in the sky searching for you.  This is Charge 3, aggravated burglary.

6.You requested a glass of water as you were thirsty. You then demanded the keys to Ms Sheen's vehicle and followed her to a bedroom where she collected her keys.  You snatched the keys and then left the property in Ms Sheen's 2017 Hyundai i30.  This is Charge 4, theft of a motor vehicle.

7.The Hyundai i30 was recovered in Belmont on 28 January 2019.  Your Apple iPhone was found in the vehicle by investigators. You voluntarily attended Geelong Police Station on 13 February 2019 to surrender yourself into custody.  You were assessed by a forensic medical officer as unfit for interview and you have remained in custody since 13 February 2019.

8.In her Victim Impact Statement, exhibit 2, Ms McInnes wrote of her distress, once you had left the premises, of being unable to dial the police.  Lying in bed that night, she kept seeing your face coming at her.  The vehicle was written off by insurance.  Although she believes she has moved on, she is far more aware of her own security, as are her other neighbours.

9.Ms Sheen in her victim impact statement, exhibit 3, describes how following the robbery, she became concerned about her safety.  In consequence she locks all doors and windows whenever she is in the house.  Her anxiety has increased and she is acutely aware of her own security and safety. Her children and grandchildren have noticed her increased vigilance.  Most poignant is the impact upon her of the loss of the vehicle you stole from her, it having been purchased by her and her husband just shortly before his death. Of this she writes, 'I treasured this vehicle and it meant the world to me.  I still struggle with this and I sometimes think that if he had taken all my money, this might have been better..

10.Your plea hearing was adjourned to enable a psychiatric court report to be prepared.  A report by Dr Fiona Best dated 21 February 2020 was tendered on your plea as exhibit 5AH.  Also tendered were defence outline of submissions, exhibit 4AH.  These two documents provide the source material for your personal history and circumstances to which I now turn.

11.You were born on 12 March 1980 and are now just short of your 40th birthday.  You were 38 at the time of this offending. You were born in Terang, Victoria.  You have one older brother and two younger sisters.  There is a frank history of mental illness on the paternal side of your family.  When asked about your early childhood, you described it as good and that your mum and dad were good parents.  However at the age of seven, you witnessed a serious assault upon your mother and this event has had a lasting and adverse impact upon you.  You struggled with school, being a slow learner, and were the victim of bullying.  It is only now that a tentative diagnosis of ADHD has been advanced.

12.You left school at 16 and your employment history has consisted of a succession of unchallenging manual jobs in a local pie factory, as a farm worker and more recently as a fencer.  You would lose employment due to your drug induced unreliability.  You began using drugs at a very early age.  You began using cannabis and alcohol at age 14 and in your adult life you persistently abused heroin and methamphetamine. This has resulted in unemployment, homelessness and separation from your brothers and sisters. You were homeless at the time of this offending.  I was told on your plea that your parents still stand by you, hard as it must be for them to watch their son succumb to the horrors of addiction.

13.You reported that you had attended a detox program at the Bridge Centre 24-25 times in your adult life and that you had attempted inpatient drug and alcohol rehabilitation no fewer than five times.  After each program and within a short period of time, you returned to your drug use. However, I am told, that within a custodial setting, you now attend Narcotics Anonymous on a weekly basis.  You have embraced sobriety and are now expressing a desire to remain drug free.

14.You have also struggled with mental ill health.  You began experiencing suicidal ideation at the tender age of 13.  You first came to the attention of mental health services in 1999 when you attempted to hang yourself; you were then 19 years of age. Material from Barwon Health reveals a history of frequent emergency admissions in the context of illicit drug intoxication and decompensating mental health, secondary to drug use; incidents of self-harm; overdoses of psychotic medication; and, significantly, a repeated and constant failure on your part to attend follow-up clinical sessions directed at both your mental health and your drug and alcohol issues. There have been tentative diagnoses of personality disorders and bipolar disorder. You have been prescribed with a variety of psychotropic medications, including Quetiapine and Chlorpromazine.  You are currently receiving a sedating dosage.

15.You report being in receipt of Disability Support Pension, although you could not remember when you first became eligible for the pension.  Of the offending you told Dr Best that you knew police were looking for you and that you 'jumped into a home'.  You heard voices telling you that you –

'have got to get another car or to lie down ...  I reckon it was more drug psychosis …  I feel sad for what I done … I was paranoid and scared shitless in the first place. The first case was the reason I ran in the first place.  If hadn’t have done anything, I was just shit scared'.[1]

[1] See report of Dr Best, exhibit 5AH, paragraph 37

You were clearly reporting some symptoms of a drug induced psychosis at the time of this offending, such as hearing voices and feeling that the police were tracking and following you. 

16.I note in this regard, that you stole one vehicle and abandoned it after a relatively short journey before entering the premises of your second victim to steal a further vehicle. The day after this offending, you were manifesting such psychotic symptoms that police officers brought you to an emergency department for assessment.  However, you were not assessed as presenting any acute mental health risks.[2]

[2] See exhibit 5AH, paragraph 10

17.Dr Best's opinion was that you are not in need of immediate psychiatric treatment in light of your current mild medication regime.  She states, 'Mr Harris also acknowledged that maintaining abstinence in the community is very difficult and he worries that he will drift back into illicit drug use when he is released into the community'.  She recommended non-stimulant medication to see whether some of your hyperactivity symptoms abate. 

18.Confined by the absence of a comprehensive history, Dr Best noted that some features are suggestive of an anti-social personality, difficulties and behaviours. You were observed to be remorseless when speaking of your hatred of Corrections Officers and for your ex-girlfriend with whom you had been living just prior to these offences.  You acknowledged that you were oppositional when faced with hierarchy and that you felt challenged by hierarchical regimes.  At the time of Dr Best's assessment, 5 February 2020, you were in a management unit.  You were remorseless about your treatment of others, although you were remorseful about your victims in relation to the current offending.  Dr Best writes,

'I note that Barwon Health have given Mr Harris the diagnosis of anti-social personality disorder.  But it should be remembered that other major mental health disorders can co-exist and that having a personality disorder increases the risk of developing a major mental illness.  Mr Harris should be encouraged to continue with his goal to achieve abstinence.  He would benefit from some biological therapy to assist him to avoid illicit drugs when he is released to the community.  He would benefit from long-term engagement with a drug and alcohol problem'.

19.Mr Cordy, on behalf of the prosecution, rightly identified that your offending represented a terrifying experience for your vulnerable, blameless and innocent victims, and had left a significant impact upon them, although both noted that, in their view, you were clearly in need of help.  He accepted your plea was entered at the earliest opportunity. He submitted that the sentencing purposes of general and specific deterrence, just punishment and protection of the community are primary sentencing purposes.  He submitted there should be cumulation in respect of the two victims of your offending, subject to the principle of totality. 

20.Your counsel Ms Hartnett accepted this was serious offending and that the only appropriate disposition was an immediate term of imprisonment. She conceded that the matters for which you fall to be sentenced today represented a significant and grave escalation in your offending, having regard to your prior criminal history.

21.You were last in front of the courts in March 2009, for possession of cannabis and thus had remained offence free for a decade.  In July 2008, for breach of an intervention order and other instances of family violence, you were sentenced to a total effective sentence of 108 days reckoned as time served and placed on a Community Correction Order with therapeutic conditions, for 12 months, which you completed.

22.Ms Hartnett told me that in the past you had self-funded your drug addiction by your employment and thus had not come to the attention of the Courts.  You instructed that you had been using methamphetamine for weeks prior to this offending. In mitigation of sentence, she urged upon me your plea of guilty which was entered at the earliest opportunity and your expressed desire to remain drug-free. It is clear, Mr Harris, that any future that you may have will be determined quite simply by whether or not you can remain drug-free when you return to the community. 

23.Mr Harris, aggravated burglary is a serious offence as is made clear by the maximum penalty imposed by Parliament of 25 years' imprisonment.  I am prepared to accept that at the time of your offending you were manifesting some symptoms of a drug-induced psychosis. But with your many years of methamphetamine use, you were, it seems to me, well-aware of the adverse effects of that drug upon you, and thus this cannot mitigate your offending.  In your drug affected stated you perceived an irrational imperative to get a vehicle which led you to enter the homes of your victims.  It was the early evening.  Both your victims were of mature years.  Both were home alone.  Both were entitled to feel safe and secure.  Both had that sense of safety and security taken from them by you.  Both were confronted by a strange man, clearly drug affected. 

24.Your first victim, Ms McInnes, had a pitchfork brought within six inches of her face, as you demanded the keys to her vehicle before ripping the telephone cables from the wall.  But minutes later, you entered a different premises, where you found your second victim, Ms Sheen.  You followed her into the bedroom as she went to get the keys to her vehicle.  Your actions engendered fear in both of your victims.  As the Court of Appeal has recently stated, offending of this kind destroys the sense of security that people are entitled to feel in their homes.[3]  Mr Harris, the Courts will do everything they can to ensure that the community is protected from offending of this kind.

[3]Comensoli v The Queen [2020] VSCA 2 at [20]

25.Theft of a motor vehicle is not to be regarded as a trivial matter without impact upon the victim. People may work hard and save for a very long time to purchase their own vehicle which can become for them their independence and their identity, far more than just a simple mode of transport.  Indeed the vehicle may have a sentimental attachment, beyond all value, as was indeed the case for Ms Sheen.

26.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 I must deter others from behaving as you did.  I must consider specific deterrence, that is I must deter you from any repeat of such offending.  I must consider the need to protect the community from you.  In my view, only successful engagement in drug and mental health treatment on your part will reduce your risk of reoffending.  I must express the community's denunciation of your conduct.  I must take into account the effect of your crimes upon your victims.  I must have regard to the statutory maximum penalties for the offences to which you have pleaded guilty and to current sentencing practices. In short, I must try to balance your personal circumstances with the circumstances of your offending.  And I am required by law to pass no longer a sentence than is necessary.

27.Clearly, sentencing principles of general and specific deterrence, just punishment, denunciation and community protection are all relevant purposes in this case.  In sentencing you, I have regard to the matters that were urged upon me by your learned counsel.  I have regard to your plea of guilty which I accept was entered at the earliest opportunity and which saved the community the time, cost and the trauma of a trial.  I have regard to your express desire to give up drugs and to the longstanding mental health challenges that you have faced.

28.Nonetheless, as your counsel has conceded and as you are only too well aware, the gravity of your offending can only be met by an immediate and significant term of imprisonment.  I have however moderated orders for a cumulation that I would have otherwise made having regard to the principle of totality.  If you would stand up please, Mr Harris.

29.On Charge 1, aggravated burglary: you are sentenced to a term of imprisonment of three (3) years and two (2) months.

30.On Charge 2, theft: you are sentenced to a term of imprisonment of six (6) months. Your licence is cancelled and you are disqualified from obtaining another licence for a period of three (3) years.

31.On Charge 3, aggravated burglary: you are sentenced to a term of imprisonment of two (2) years and ten (10) months. 

32.On Charge 4, theft: you are sentenced to a term of imprisonment of six (6) months.  Your licence is cancelled and you are disqualified from obtaining another licence for a period of three (3) years.  This period of disqualification is to run concurrent with the terms of disqualification imposed on Charge 2. 

33.On the Summary Charge 3, assault with a weapon: you are sentenced to a term of imprisonment of seven (7) months.  I order that two (2) months of the sentence on Charge 2, seven (7) months of the sentence on Charge 3, two (2) months of the sentence on Charge 4 and three (3) months of the sentence on Summary Charge 3 run cumulative to each other and cumulative to the sentence on Charge 1.

34.This makes a total effective sentence of four (4) years and four (4) months.  I direct that you must serve a period of three (3) years and two (2) months before you become eligible for parole. 

35.Pursuant to section 18(4) of the Sentencing Act, you have served 379 days of the sentence I have passed upon you and I direct that this be entered into the records of the Court. 

36.Pursuant to section 6AAA of the Sentencing Act, had you not pleaded guilty, you would have been sentenced to a total effective sentence of seven (7) years with a non-parole period of five (5) years and seven (7) months.

37.Ms Hartnett, custody management issues.  Now in terms of his medication regime, I understood him to be on Quetiapine and Chlorpromazine.

38.MS HARTNETT:  Yes, Your Honour.

39.HIS HONOUR:  And insofar as you're concerned, that regime is working?

40.MS HARTNETT:  Yes, Your Honour

41.HIS HONOUR:  All right are there any other?

42.MS HARTNETT:  He's not indicated any other issues in relation to custody
management.

43.HIS HONOUR:  Nothing further, all right.  Yes.  Now the 464 is now automatic
Mr Cordy?

44.MR CORDY:  Yes, Your Honour.

45.HIS HONOUR:  And there was a disposal order.

46.MR CORDY:  Yes, Your Honour.

47.HIS HONOUR:  Which I will sign in chambers.

48.MR CORDY:  Thank you, Your Honour.

49.HIS HONOUR:  All right.  Thank you, Mr Harris, it's time now for you to build on it.  You've expressed a desire, there's no mystery to the future.  You've got to stop.

50.OFFENDER:  No, thank you, Your Honour.

51.HIS HONOUR:  You have got to stop.  So you've expressed a desire, carry on doing the work that you're doing.  All right?  So you've got some protection for yourself when you come into the community again.  As the old slogan goes, 'You just say no'.  All right, if you go with the officers.  Thank you, thank you officers.  Thank you Ms Hartnett, thank you Mr Cordy. 

52.MS HARTNETT:  Thank you Your Honour.

53.HIS HONOUR:  All right, thank you for your attendance.

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