Director of Public Prosecutions v Harrison
[2021] VCC 1173
•9 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTION
CR 21-00362
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MELISSA HARRISON |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Shepparton |
DATE OF HEARING: | |
DATE OF SENTENCE: | 9 July 2021 |
CASE MAY BE CITED AS: | DPP v Harrison |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1173 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Keks | Office of Public Prosecutions |
For the Accused | Mr Z. Menon | Victoria Legal Aid |
HIS HONOUR:
1Melissa Harrison, you have pleaded guilty to one charge of common law assault, one charge of criminal damage and one charge of aggravated burglary. Those crimes carry maximum penalties of five years, 10 years and 25 years respectively.
2You are now 34 years of age. You ultimately pleaded guilty to the matter which, in your circumstances, is a credit to you. I accept that you now display appropriate remorse for the offending and, of course, you must get the utilitarian benefit of that offending. In these COVID times, pleas of guilty do relieve the court of significant time usage and also resources as explained in the matter of Worboys I was doing that anyways and acknowledge that discount.
3In terms of the offending itself, it can be described in pretty simple terms. It occurred in March 2020. You went to a house in Bairnsdale which was being occupied by a Ms Beale. She had recently offered your ex-partner a place to stay, and I suspect there is a lot more to it than that but in any event, you entered the house without her knowledge and went to a bedroom where Mr Katipa was sleeping. When you were discovered, on the Crown opening, by Ms Beale you threatened her with a golf club but did not actually hit her. Katipa escorted you from the house. You then smashed windows - which gives rise to Charge 2 of the criminal damage - and you then forced your way back into the house through the door to an enclosed porch area and it was at that point in time you picked up a bicycle frame that was there and then used that to do other damage. That gives rise to a charge of aggravated burglary which is entering the house with the intention of doing criminal damage. Obviously, the weapon itself was not picked up until you were already within the building.
4You had been in a relationship with Mr Katipa for about 10 years before you separated toward the end of 2019 and you had three children together who were aged between 11 months and seven years. Ms Beale had been friends with each of you and she had been at that property for a couple of weeks before the offending. It is said that she had offered Katipa a place to stay because he had been having a hard time with you. I do not know what the truth of all this is. I have had quite a bit of experience in the meilleu in which these things take place and I suspect there is probably a lot more to it than we are being told.
5Be all that is made, the fact of the matter is that you did go to the house. On the first occasion you went in, you said later you were invited in but I do not know about that, and you then, remonstrating with Katipa, certainly caused apprehension in Beale which gives rise to Charge 1 with the golf club, and after being escorted, you did break the windows, I accept that, and I accept that you also then went in as a trespasser with the intention of doing damage. You were knocking and yelling for Katipa, you were yelling verbal abuse at Beale and that is the circumstance in which all this occurred.
6In my view, this is at the lowest, if I might say so, end of aggravated burglary. I think it probably should have been dealt with in the Magistrates' Court but be that as it may, I accept that the 10 years that you have been with Mr Katipa was
10 years in which you did not offend by way of conviction. During that period of time, your children had all been taken from you by the authorities and a child had been taken from you at birth because of your drug use and in that scenario, it would appear that Mr Katipa was (1), able to keep you in a relationship where you did not offend against other people and I would form the view that his going and then, as you perceived it, shacking up, to use the vernacular, with Ms Beale was simply too much for you. That does not excuse what you did. AIt is a criminal offence, but it certainly puts it all into a context. I regard your offending as an act of desperation rather than an act of criminal intent.7There is no victim impact statement before me and, in these circumstances, that is hardly surprising. You have prior findings of guilt and, interestingly, I think they display the reality of your life. You have been in court on a number of occasions and on every single occasion, except one, you received a without conviction. In most of those you received a fine and only one of you received a conviction which is a fine of $200 for using indecent language in a public place.
8You have abused alcohol and various drugs throughout your life and it is to your credit in many ways that your offending against other people, apart from one assault police which was in Bairnsdale and could involve anything, has been very, very limited indeed. Your background was contained in what I have already described as very laudable submissions of your counsel and I do not propose to go into great detail. There is a report from a psychologist Ms Rogers; I might refer to that in a moment. As she points out, when this offending occurred you were substance affected. It was really Mr Katipa you were trying to see. I accept that the offending was erratic and spontaneous. You were on your own, there was no attempt to disguise yourself and you suffered injuries as well.
9It is a situation where, putting it bluntly, you have five children, three different fathers, none of those children remain in your care. You have two living with your mother, you have lost contact with the other children and your youngest son Cohen was taken from you at birth. I accept that you have deep shame at the removal of him and that is in fact particularly distressing for you. You are an Aboriginal woman and you have been diagnosed for anxiety and depression. It is said to me in Ms Rogers' report - and I will refer to that very briefly in a moment - that you have a diagnosis consistent with general anxiety disorder, major depressive disorder and substance use disorder. She said you also suggest a symptomology consistent with post-traumatic stress disorder. Having read through in detail your background, I would be amazed if you in fact do not have a post-traumatic stress disorder. But I cannot make that as a finding because I am not a psychologist.
10In any event, it is clear to me that the principles in Bugmy play a significant part in this sentencing, as well as certain aspects of Verdins. It is a situation where you have never received a term of imprisonment. You spent two days in the cells at Bairnsdale I over these matters. I accept the views of the people who have been working with you and Ms Rogers that you have had a 'terror' of in fact going to prison and that has now been going for a couple of years and I accept that that delay - I am not blaming anybody for that, COVID has not helped - has been of real significance to you in terms of your ongoing anxiety and fear.
11The situation is that you have, in the past - I will just simply quote, I think -
Ms Rogers says, 'Mr Harrison experienced trauma and neglect in the development years, including early exposure to family violence and substances abuse, as well as general lack of stability. She commenced using substances at an early age and her criminal record commenced when she was 16. She had her first child at the age of 19 and after the birth of four further children (none of whom are in her care) to two different fathers, including one relationship which was particularly violent, Ms Harrison found herself displaced, traumatised and addicted to substances with limited ability to change her lifestyle. Recent years have been characterised by increasing substance abuse, including methamphetamines, cannabis and heroin. Ms Harrison now acknowledges that she requires assistance to cease substance abuse. She has good insight into her offending and substance abuse, as well as positive goals for the future regarding her children in particular, which are providing current motivation to change.'12She then goes through the various drugs that you have been using, confirms my views that are already formed that you were expressing appropriate remorse for all these matters. You, I think probably for the first time in your life, are now genuinely willing to engage in substance abuse treatment. You have to look seriously at the question of a residential program and they will be matters to be worked out between you and corrections and the people who are assisting you at the moment. I think in this situation - I do not need to go to the - I know, obviously, members of your family - your grandmother was like a rock to you and I accept that. You have done your best and I accept that as well.
13You said to Ms Rogers that your primary goal at the moment is to get your 'life back on track', to stop using substances and try and get contact back with your children. Ms Rogers then said, 'While in the past she acknowledges resistance towards counselling as an intervention, Ms Harrison now accepts that she needs support to make significant changes in her life and is willing to meaningfully engage in detoxification withdrawal support, as well as substance abuse and general counselling.' She reported an excellent network of support workers currently from Gippsland and East Gippsland Aboriginal Corporation, or GEGAC as it is referred to, including Shae White (I spoke to her last week) and Carmen Schroder who is a domestic violence worker. They are able to provide encouragement and assistance for you, I accept and assistance of the highest order.
14Again, you do not even know what year you finished schooling. I am not going to go through all that again. Bugmy clearly applies here. You have been medicated in the past and at present you are on diazepam. You ceased taking antidepressants earlier because you did not think that they were working and, again, I do not think I need to go through all that.
15The Crown position was that a custodial order for custodial sentence was available. I do not think that is the case. This is one of those situations that I think can be adequately summed up just with a couple of Court of Appeal decisions. In the Court of Appeal in the DPP v Leach the court said:
'It is particularly important that this court should not devalue or deny the right of the sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of the offender ought to be grasped. That, after all, may be a decision which rebounds very much to the benefit of the community. The sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence where, in the long term, the community's interests will be served by that course. This court should seek to promote public understanding to the fact that, apart from the interests of the individual, it is sought to rehabilitate. An important interest in itself, it is a light in the community just in maximising the prospects of rehabilitation of the individual who is convicted or being convicted of a serious crime.'
16In The Queen v Bradshaw the Court of Appeal said:
'Parsimony requires sentencing judges to give proper consideration to non custodial options.'
17And in cases such as Bolton, again, I am not going to go into the detail of Bolton. We are all fully aware of it:
'A Community Correction Order provides a flexible mechanism for imposing the sentences of both punitive and rehabilitative which can be fashioned to address the particular circumstances of the offender and causes of the offending to minimise the risk of reoffending by promoting the offender's rehabilitation. As the order of seriousness of the offending conduct increases so that the likelihood that such a disposition would be appropriate diminishes, but it may remain an option that is open even in cases of very serious offending.'
18As I said, I regard this aggravated burglary in itself can be an extremely serious offence. On the other hand, it can be a momentary loss of control where in the end, nobody is really hurt and I think that that is the situation here, as I have already indicated. It is at the lower end.
19I do not think I need to go into any more detail or any more cases. I have referred to the Court of Appeal in Bugmy, I have referred to the fact that you have done two days on remand for this, you may have done days in the cells before, I do not know, but you certainly have a terror of gaol. Hopefully, you have now turned the corner. Thirty-four is an age where you can really do that. You are now open to it, you have got really good people to help you and, having had you assessed and found it suitable, the disposition I am going to impose - if you agree - it will be a Community Correction Order. It will be with conviction which, in your situation, is a punishment in itself. It is just about the first one you have ever had and it will include the programs that are being recommended by the people at Corrections.
20This disposition will show that the offending is not trivial. As I said, it is certainly at the lower end but certainly not trivial. But also to assist you in what is your real potential for rehabilitation. You do, it would appear, to present well. The people at Corrections are obviously impressed by the way that you were able to present and your honesty and I have no reason to doubt that with Shae White and the various people at GEGAC, you have got, as I have said about three times, people who, as an Aboriginal woman, you can be helped greatly and get to a situation where you can have proper access to your children and be proud of yourself.
21Accordingly, as I said, it will be three years with conviction. There will be an unpaid community work condition. I will make that 200 hours to indicate that it is an aggravated burglary but what I will also do is, the order will say that that 200 hours can be worked off in its entirety by doing programs and the like. Other conditions will be assessment and treatment and rehabilitation for drug, assessment and treatment for alcohol and mental health assessment and treatment, and it will be with supervision if you agree to those matters.
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22 HIS HONOUR: I will just say a couple of things before I ask you if you agree. If you breach it and get brought back before me for breaching it by offending, you're going to be in trouble. I'm sure - and I'm sure Shae will have explained this to you, as will others - that correction orders aren't that easy and what I want you to do is, if you are having difficulty or you are struggling with things, the matter can always be brought back to court to be looked at and if we need to have something different in place it can be done. The object of the court in this situation is to try and assist you in rehabilitation. You'd probably aware, I know, a lot of Aboriginal people down around Bairnsdale and Sale and your name's well known to me. It'd be great if you could stand proud amongst the Gunaikurnai and that's what we're trying to do.
23 If something's going wrong, talk to people, Melissa, talk to people. Don't just go hiding. I know in the past you've had difficulty with appointments and the like and you tend to go to ground if things get difficult. That's really got to stop and it's up to you to stop it with the assistance that you've got. So having said all that, Melissa, do you agree to the Correction Order? I can't hear them. Have they got a microphone?
24 MS WHITE: Yes, she does.
25 HIS HONOUR: All right, thank you for that. All right, we'll just print that off and I'll sign it. I'll mark it as acknowledged. Just while that's being done, just for my information, Melissa, did you go to 754 in Bairnsdale?
26 OFFENDER: Lakes Primary School.
27 HIS HONOUR: Yes, but 754?
28 OFFENDER: Ah, no.
29 MS WHITE: No, 754's in Bairnsdale. Lakes Primary, is it called Post?
30 HIS HONOUR: She went to Lakes Primary, gotcha, okie doke.
31 MS WHITE: Yeah.
32 HIS HONOUR: No, it's all right. All right, that order's made. All right, yes, thank you for that. Thank you, Mr Keks.
33 MR KEKS: If it please the court.
34 HIS HONOUR: Yes, good luck, Melissa. Stick with it, all right? Thank you, Shae, too for your help.
35 MS WHITE: My pleasure, Your Honour.
36 HIS HONOUR: Yes, thank you, James.
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