Director of Public Prosecutions v Harrison

[2022] VCC 333

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 20-00286

DIRECTOR OF PUBLIC PROSECUTIONS

v

ARTHUR HARRISON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	16 March 2022
CASE MAY BE CITED AS:	DPP v Harrison
MEDIUM NEUTRAL CITATION:	[2022] VCC 333

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	Office of Public Prosecutions
For the Accused	Ms J. Clark	Kurnai Legal

HIS HONOUR: 

1Arthur Maxwell Harrison, you were found guilty by a jury, after a short trial, of two counts of rape.  That crime carries a maximum penalty of 25 years' imprisonment.  You are now 29 years of age.  In the absence of a plea of guilty, you do not get the utilitarian benefit that normally accompanies such matters when there is a plea of guilty.  Insofar as remorse is concerned, you do not get the benefit of that either.  However, that is certainly not an aggravating feature, and I suspect that in your situation, being from an Indigenous community, having offended against another community member, you certainly now cannot concede what you had done, or you would be totally banished.  In those circumstances, I suspect that there is some remorse.  You seem to me to be genuinely upset when your victim's mother was reading her victim impact statement out aloud to the Court.  Because of the offending, you will be on the Sex Offenders Register and reporting will be for 15 years.  That will be sent to you at the gaol.  You are not to be sentenced as a serious sexual offender, because there is only two counts.

2The standard sentence for rape is 10 years.  I am well aware of the decision of Brown and the more recent decision by the Court of Appeal of McPherson, with which I totally agree.  The standard sentence is simply part of the sentencing process, and I will be outlining the objective seriousness of this offending as I go through it.  It is a situation where it seems to me that this could hardly be described as being at the low end of offending.

3The circumstances were that the complainant - this will be anonymised later on - Erin[1], was 14 years of age at the time.  She regarded you as an Uncle in Aboriginal terms.  On 19 October 2018, a joint birthday celebration was being held for both her and her brother; it was held at a local park.  At approximately 7 o'clock, the celebration shifted back to the complainant's home address in Traralgon.  Adults were drinking alcohol. 

[1] A pseudonym.

4You were seen leaving the premises at about 11 o'clock or 11.30 that evening, and there is a photograph of you being in the premises at around about 9.48 pm.  During the evening, the complainant stayed in her mother's bedroom with her two cousins - they were all in the same bed - and she came out at one stage to sing happy birthday to her brother. 

5As she was falling asleep or had been asleep, you entered the room.  It would appear to have been around about 10.30 or so.  She said that she saw your face in the light and identified you.  I have no doubt whatsoever that her identification was correct, and neither did the jury. 

6You went over to the bed, got on top of her, put your hand over her mouth.  You kept telling her things such as that you loved her.  You pulled down her pants and started whispering, as she said, 'rude stuff'.  She said that she was in shock.  You then began touching her vagina and you then digitally penetrated her vagina.  That lasted, on her estimate, for about 30 seconds, and that is Charge 1 of rape.

7You then inserted your penis into her vagina and told her that it felt good.  You continued to whisper things to her, which she described in her VARE statement as 'rude stuff'.  You then humped, as she described it, her for about five minutes.  You got off, told her not to tell anyone and left the room.  When you actually left the room, you said to her not to tell anyone or you were going to, like, start hurting people.  That undoubtedly had a very real and serious effect upon her. 

8She said that the act of penile penetration was painful.  She pretended nothing had happened and then went to sleep.  I do not need to go through the history of how the matter was reported.  It clearly had a devastating effect on her as a child, and I will go through that again in a moment.  She was asked during the special hearing why she had not told her mother and she said:

Because I just didn't want anyone to know.  I felt like that was, like - to me, it felt like I was the most disgusting person in the world because, like, I let that happen to me.  I could have screamed or anything but I didn't, so technically it's all my fault that that happened.

9That, unfortunately, is how so many of these young victims feel, having been violated in such a way.  The circumstances here are aggravated by a number of features.  You were clearly in a position of trust.  It was a birthday party.  There were many older people at the party and she was in a bedroom. 

10The offending was brazen.  You went into that room, running the risk of being caught, and still went ahead with it.  She was 14 years of age.  You threatened her.  She was a 14‑year‑old virgin and this was her first experience of sex.  She said during the course of the trial that she did not really know what was happening.  I have only, obviously, seen her in the course of doing a VARE statement and being cross-examined, but she struck me as being a very gentle, withdrawn child, and you would have been well aware of that, having known her for some time.

11She said that you had said things to her about loving her and the like beforehand.  And whilst I am not finding that this was a premeditated act, as your counsel strongly argued, I have to treat it as opportunistic.  It was certainly something that was not done in a totally drunken state.  You knew exactly what you were doing, and you violated a very young girl who was, essentially, as I indicated, in a position of trust - where you were in a position of trust.  

12That is a serious example of rape and I do not think there can be any other description for it.  It calls for the application of general and specific deterrence.  It calls for the application and denunciation and appropriate punishment.  A gaol sentence and a significant gaol sentence is the only option open. 

13The victim impact statements - one was read out by Erin's mother and the other was read by the prosecutor.  Those victim impact statements described the devastation of what you did has had upon not only a young girl but upon her mother and upon your community.  It seems pretty clear that you had very little support within the community after all this, and references have been tendered on your behalf from a couple of people who do support you, and clearly I have read those and understand their anxiety about your fate.

14There is an element of extra‑curial punishment involved in this, as it is the situation when these things do happen within an Aboriginal community.  You are, essentially, ostracised, and that will last, I would have thought, for a very long period of time.  The victim impact statement of the mother simply said that she felt no pity for you, and it is perfectly understandable.

15In terms of the length of the sentence, the objective factors are pretty obvious, I would have thought, but I then turn to the matters personal to yourself.  I should also mention that the victim impact statement of Erin points out that the offending has caused her, over time, to have depression and suicidal thoughts, that she has only just started counselling sessions but still cannot talk to a counsellor about what has happened, and she has only just started to get comfortable with her.  It has, essentially, made a mess of her life and one could only hope that she is able to recover from it.

16In terms of your own personal circumstances, you do have prior convictions and one situation with gaol some 15 years ago for aggravated burglary.  That did not involve any form of sexual offending, and for these purposes I will regard your prior convictions as being of virtually no significance in this process.

17So far as your background is concerned, your mother, who is now deceased, was Yorta Yorta, and your father was Gunnai.  You are the only child of that union, but there is another 10 stepsiblings that you have from earlier relationship of your mother's.  In your life, you have fathered a young boy named A.J, and after you separated from his mother you became his full‑time parent and went to the Family Court and got that custody.  Your housing transferred to Morwell and you then moved in with your parents in a three‑bedroom house, and A.J was raised by all of you.  Your mother passed away about four years ago.

18Your father you continued to live with, till he moved back to Lake Tyers, which is where he comes from, and he just simply, as I understand it, wanted to go home.  He had suffered a brain clot and was well enough to go home, and you went to live in Lake Tyers to look after him as a carer. 

19I take into account that the circumstances will be very difficult for you because of the inability to have proper contact with your son, and also I understand that, from an Aboriginal person's point of view, the odds are very, very high, I would have thought, that your father is going to die whilst you are in custody and you will be unable to attend the funeral.  A.J has now been taken to Adelaide, where he is being cared for by other relatives, and I am sure is being cared for well.

20I take into account that in, certainly, the initial aspects of this custodial sentence you will undergo in COVID conditions.  Everyone is well aware of what they are in these circumstances and I do not really have to list them.  There was a psychologist's report tendered on your behalf, and I have read that and taken it into account.  It describes the circumstances of your family of origin and also your son A.J.  You apparently have secondary education to the completion of Year 10, and you clearly do not have any matters related to the principles in Verdins or Bugmy or anything along those lines. 

21You were rated low on sexual deviation.  I am well aware, of course, that you have no prior convictions.  You have a history in more recent times of suicidal attempts and poor coping during remand.  And, again, that is a matter that causes me great concern, for somebody in your particular circumstances.  You have abused alcohol in the past and it would seem pretty clear you had abused it on this night, to give you the Dutch courage or whatever the appropriate expression would be.

22So, in any event, I have taken all those matters into account in what is an appropriate sentence, but, at the end of the day, it boils down to a very serious criminal offence against a very young and very vulnerable child who has been very much damaged, but the prospects of her rehabilitation are really up to you.  The risk of you re-offending in such a way as this are probably low.  I understand from what you told the psychologist that you intend to appeal a conviction.  It is simply a matter for you. 

23Your counsel has explained to you that in the absence of an admission to the offending you will probably not be able to get parole.  They are all matters to be discussed with you and your legal advisors.  I do not place any emphasis whatsoever on your telling the psychologist that you do intend to appeal.  Situation such as this, where a person in your circumstances - to now admit it, having lied about it for an extended period of time, would be impossible.  That certainly does not aggravate the situation, in my view.

24But, in any event, taking into account as best I can all the principles involved, on Charge 1, 10 years.  Charge 2, 10 years.  They are to be served concurrently with each other, having occurred within seconds of each other.  It is a total effective sentence of 10 years.  In these circumstances, I am aware of the provisions (indistinct) standard sentences, but, in any event, you are to serve a minimum term of seven and a half years before becoming eligible for parole, and I direct that 33 days be written as having been served under this sentence.  Is there any other orders that I have to make?

25MR HUTTON:  No, Your Honour.

26MS CLARK:  Your Honour please.

27HIS HONOUR:  Thanks for that.  Yes.  All right.  Thanks.

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