Director of Public Prosecutions v Harrison

[2021] VCC 668

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

Revised

Not Restricted

Suitable for Publication

CRIMINAL JURISDICTION

CR 19-00636, CR 20-00365

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY HARRISON

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2021
DATE OF SENTENCE:	19 May 2021
CASE MAY BE CITED AS:	DPP v Harrison
MEDIUM NEUTRAL CITATION:	[2021] VCC 668

REASONS FOR SENTENCE

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Subject: Criminal Law Sentence

Catchwords: Koori Court – Aboriginal offender – Prohibited person possess firearm – resist arrest – threats to inflict serious injury – removal from Aboriginal parents at three months – effects of resentment at biological parents- alienation from culture and identity- psychological trauma of insidious racism- Bugmy factors – Relevant Criminal History.

Legislation Cited: Sentencing Act 1991 (Vic).

Cases Cited: Bugmy v TheQueen (2013) 249 CLR 57; R v Verdins & Ors [2007] VSCA 102

Sentence: Three years' imprisonment with a non-parole period of two years and three months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Ms T. Theocharous	Kurnai Legal

HIS HONOUR: 

1Ricky Harrison, you have pleaded guilty in the Koori Court jurisdiction of this Court to one charge of being a prohibited person in possession of a firearm and two charges of resisting an emergency worker on duty (being police officers) on Indictment no. J10327308A.1.  You have also pleaded guilty to one charge of making a threat to inflict serious injury on Indictment No. J10327308B.  I will refer to these indictments as Indictment A and B.

2You have also pleaded guilty to relevant summary offences of possessing a controlled weapon, possessing cartridge ammunition without a licence and storing an explosive without authority.

3You have admitted a criminal record disclosing several relevant prior convictions.

4The maximum penalty for a prohibited person possessing a firearm is 10 years imprisonment.

5The maximum penalty for each of the other indictable matters you have pleaded guilty to is in each instance five years imprisonment.

Circumstances of Offending: Indictment B

Threat to inflict serious injury

6The Summary of Prosecution Opening is Exhibit A in this case and forms part of these reasons for sentence.

7On 5 November 2017, two passers-by who are referred to as Forbes and Hamilton in the Prosecution Opening, observed you arguing with a woman on the side of the road at Hastings.  It was around 7:30pm.

8Forbes and Hamilton were in a car. They stopped and one of them wound down a window.  They heard you say something like, 'What are you cunts looking at?'  Forbes said, 'Excuse me'.  You said something like, 'Shut the fuck up, I’ll stab you fucking white cunt' or, 'I’ll stab you, you white cunts'.  You reached into the back of your pants and pulled out a knife.  You were about two metres from Forbes.

9Moments later, an altercation of sorts, at some distance, then transpired.

10You were arrested on 2 February 2018 at 69 James Street in Hastings.

11You were interviewed by police the following day.  You said you do not get along with islanders; you said they yelled, 'You black dog' and you said, 'Fucken come on then, cunt', you said the man grabbed a baseball bat and you had a machete, you said it was a very, very large knife.  You said the man saw the knife and got back into the car and left.  At the time of your arrest for this matter the offences the subject of indictment A occurred.

Indictment A

12The Summary of Prosecution Opening in relation to that is Exhibit B and forms part of these reasons for sentence.

13On 2 February 2018 police attended at 69 James Street in Hastings looking for you.

14The police members in attendance included Senior Constable Lamsis and Detective Senior Constable Moodie.  The police entered the house by invitation and used loud verbal commands to identify themselves and to tell you to surrender if you were hiding.

15During the police search Moodie located you standing behind a door in the laundry.  You were holding a firearm in a manner in which it could be used, namely with one hand on the grip of the firearm and the other hand under the stock or the barrel.  You were a prohibited person as not more than five years had expired since you finished serving a term of imprisonment of less than five years for an indictable offence.

16Officer Moodie yelled, 'Gun' and pushed the laundry door inwards to contain you.  You were aggressive and pushed back against the laundry door.  Lamsis entered the laundry to assist Moodie.  Moodie and Lamsis wrestled with you inside the laundry, trying to disarm and arrest you.  You aggressively resisted their attempts to restrain you.  They shouted at you to drop the gun.  Other police officers then assisted Moodie and Lamsis in forcing you out of the laundry and into the kitchen area.

17The police continued to struggle with you and eventually overpowered you and placed you in handcuffs. The firearm ended up on the floor in the kitchen area near the laundry.  Another officer cleared the firearm and a single round was ejected.  The firearm was a loaded sawn-off .22.

18Police conducted a search of the house and located the following, namely that
there was ammunition (in three separate locations); there was gun powder (in a plastic bag) and knuckledusters.  Those three items relate to the summary offences which have been dealt with.

19You were interviewed and admitted possessing the gun and other items found.  You denied brandishing the weapon as alleged stating that it would be stupid to point the gun at armed police officers.

Objective Gravity

20The possessing of a loaded firearm, which you had to hand when police sought to arrest you, is a very serious offence.  Firearms in the community and loaded firearms in the community, particularly in those circumstances, are of great concern and require denunciation.

21It is also a very serious matter to resist police officers in their arrest of you whilst brandishing a loaded firearm.

22I must be careful to avoid double punishment of you for the use of a loaded firearm which overlaps the separate criminality between Charge 1 and Charges 2 and 3.

23The Prosecution relied upon written submissions (Exhibit C) as to the nature and gravity of the offence of prohibited person possessing a firearm and in particular I have formed the view that the fact that it was loaded, and you had it to hand for use and did use it in the manner referred to above, are features which make your conduct a particularly serious example of the offence.

24The resisting arrest charges are also serious examples due to the presence of the loaded firearm.

Personal circumstances

25You are a proud Aboriginal man.  You were born in Traralgon in 1984 to Aboriginal parents from the lands of the Gunai Kurnai people and the Lake Tyers Trust.

26A formative event in your life was your removal from your parents to
non-indigenous foster care when you were three months of age.  Understandably, this fact has been a source of much distress and resentment throughout your life.

27You have an older brother, who stayed with your parents, thus your resentment at being placed in foster care.  I was told you have seven siblings, and it was not clear to me whether they were also placed into care or at what time.  The psychological report of Ms Rodgers states that several of your siblings and cousins were in foster care at different times with you, and with the same foster parents.

28Your foster parents provided a loving home.  You speak well of them, they have now both passed away I was told.  They provided you with a stable home – although it was crowded.

29Whilst you identify strongly with your foster parents, and as I have said you speak well of them, the link with your biological parents, culture and community was effectively severed at infancy.

30As has been documented in the Bringing Them Home Report of the ‘National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families’, the removal of Aboriginal children from their families has devastating, life-long and far-reaching consequences.

31I have no doubt that the impact upon you of this separation and loss of connection to your Aboriginal identity has been severe.  To a large extent you have been denied the strength and purpose that can be gained from experiencing the pride and celebration of a shared cultural identity.

32In particular, you have been deeply affected throughout your life from insidious racism.  In combination with your alienation from your birth family and heritage, your neuro-developmental disorder (being ADHD) and your psychiatric infirmities, your experience of insidious racism and the psychological trauma flowing from it appears to have been profound and connected with the events the subject of Indictment B at least.

33Your childhood experiences and education in particular were hampered by the effects of ADHD.  You ceased education at Year 7 level after being expelled.

34Substance misuse and abuse and alcohol abuse commenced at a young age.

35Your work history is virtually non-existent.

36You have experienced periods of youth detention I was told, and many of your adult years have been spent in custody.

37All of these factors operate in combination to help explain how you come to be before me.  Your responses and impulses throughout your life have been shaped by childhood experiences and these other inter-related factors.

38No single factor – be it ADHD, removal from family, the diagnosis of schizophrenia, or a poor educational level – leap out as being formative or causative in isolation.  The whole is greater than the sum of its parts.  The interplay between these features of your life and personality are relevant to my assessment of your moral culpability and in combination they have significant mitigatory effect.

Psychological Report

39Subsequent to the Sentencing Conversation in the Koori Court, a thorough psychological report was filed on your behalf.  The report was authored by Megan Rodgers, psychologist.

40I accept the opinion of Ms Rodgers as follows.

·You were subjected to insidious racism throughout your upbringing and you learnt to respond to this with violence.

·An extensive history of substance abuse and poorly diagnosed and treated mental illness, including schizophrenia, as well as homelessness and multiple sentences of imprisonment have led to major instability in your life.

·You had some resentment and anger towards your parents for adopting you out. Your anger was further fuelled by extensive racism experienced throughout your youth and early adulthood, including a number of physical assaults when you were a child.  As you grew older you were able to fight back and you did so.

·You have insight and are working hard to manage and regulate your emotions better when your anger is triggered this way.

·You experience a high level of psychological distress and severe symptoms of both depression and anxiety.

·You have some insight into the effects upon you of the psychological trauma flowing from your having been placed into foster care as an infant, the passing of family members, foster parents and your biological father, and the impact of insidious racism.

41Insidious racism and the psychological trauma that flows from it is a phenomenon that is starting to become better understood in the wider community.  Although there is a large body of scientific literature about the harmful psychological effects of racism, the methodology for individual assessment is in its infancy.

42It will always be difficult for the members of a dominant culture to appreciate and process the impact of racism when the lived experience of those members could be described as involving a daily absence of the consequences of racism, or the consequences of negative racial bias either conscious or unconscious.

43Based on the matters set out in Ms Rodgers' report, and in combination with the other matters personal to you, including your childhood history, your criminal history and the circumstances of the offences before me, I am satisfied that the psychological trauma you have experienced due to insidious racism is significant.

Application of Verdins

44Ms Theocharous on your behalf filed an additional outline referring to the Rodgers report.  Ms Theocharous submitted that the content of the Rodgers report enlivens the Verdins principles relating to moral culpability – which flow on to considerations of general deterrence.[1]

[1]R v Verdins & Ors [2007] VSCA 102

45Ms Theocharous also submitted that the hardship in custody principle referred to in Verdins applies in your case.  I accept that due to the matters set out in the Rodgers report, and noted in Ms Theocharous' further outline, your experience in custody will be more onerous than it would for another who does not suffer the burden of mental illness.

46In relation to moral culpability; your mental illness, ADHD and potential acquired brain injury (undiagnosed, of course) are parts of the puzzle in the sense that I have set out above.  The causative link with offending is not straightforward, however.  The nexus is there but it is a long and winding road – substance abuse, housing instability, poor education, trauma stemming from disadvantage, removal from family and cultural identity, and racism, are each signposts on the way,  along with the psychiatric and psychological factors.

47As I have said, I have assessed the mitigatory effect of these matters in combination.

48There is mitigation in a Bugmy sense to a significant degree when these matters are properly assessed.[2]  Ms Theocharous pointed out in her further outline with reference to the report of Ms Rodgers that the Bugmy principles applied and she referred to your interrupted school attendance and suspension, out of home care, early exposure to substance abuse, unemployment and homelessness.  Ms Theocharous referred to the matters set out in some detail at pages seven to nine of the Rodgers report and submitted that your extremely disadvantaged upbringing and early life are relevant to sentencing in moderating the weight to be given to moral culpability, general and specific deterrence and protection of the community.  I accept that the Bugmy principle applies with significant effect in your case.

[2]Bugmy v The Queen (2013) 249 CLR 57

49The forces that have shaped you are clear from the materials before me and they are summarised herein.  Their effect upon you must be assessed in light of your ADHD and psychiatric illness – substance abuse, poor education, homelessness and absence of work history are the result of those forces and experiences in your particular case.  They in turn are well recognised precursors to the periods in detention and custody that you have experienced - as in they are criminogenic factors.

50Aboriginal disadvantage is an inadequate term that is often embraced as a catch-all to refer to factors that are embraced by the Bugmy principles.  That term often contemplates exposure to dysfunction or disadvantage in an Aboriginal community.  In your case the removal of you at three months at age from your community and culture has had a negative effect upon you, but you have also been exposed as you grew, to cousins and uncles who you describe as, ‘Gaol heads’ and that has also had a negative effect on your experience, and there are the other matters that are referred to by Ms Theocharous that I accept that have just been set out.  Your experience sits within the broad descriptive term of Aboriginal disadvantage.

51Your experiences of foster care, and periods of custody, are part of a wider Aboriginal experience of higher representation in State care and incarceration that has been part of the colonial legacy and experience of Aboriginal people and remains an indelible stain on the colonial narrative.

52Ms Rodgers summed up matters and refers to her prognosis and I will now refer to the report again at page 10, paragraph 45. 

'Mr Harrison was adopted at the age of three months, growing up with Caucasian foster parents in towns he described as “very racist”, but nevertheless he reported a positive upbringing surrounded by many of his siblings and cousins, who were also raised by the same foster parents.  He reported extensive racism to which it appeared he responded with physical violence, which escalated throughout his adolescence and young adulthood;  Mr Harrison reported that he has always had a “short temper” and identified anger management as a recurring problem in his life. 

He reported being diagnosed with ADHD when he was younger and medicated for this, although it is unclear for how long he complied with that prescription.  He was further diagnosed with anxiety and depression, which may be associated with symptoms of trauma which he further reported.  Mr Harrison has been diagnosed with schizophrenia in recent years, however he has never been adequately treated for this and currently remains unmedicated, save for methadone. 

Mr Harrison cited protective factors, such as his tendency to stabilize when in an intimate relationship, and his strong desire to be a positive influence in the life of his seven-year-old son and similarly with his nieces and nephews.  He further reported the intention to follow up with diagnostic clarification and appropriate treatment when in the community, planning to attend the local Aboriginal cooperative.  He has stable accommodation with his sister in Noble Park upon release into the community'.

53Ms Rodgers went on, and this is a matter I have had regard to in relation to prospects of rehabilitation. 

'Mr Harrison identified the strong relationship between his mental illness, substance abuse and offending and so intends to remedy these risk factors to reduce his risk of recidivism.  Should he be able to comply with treatment of his mental illness ongoing, as well as remain abstinent from substance use, he is much more likely to stabilize in the community and not reoffend'.

54Ms Rodgers then went on to recommend neuropsychological testing to determine whether you do have an acquired brain injury.  In the circumstances of the matter before me, I formed the view that it was not necessary to seek that further report but I make particular note of it in these sentencing remarks as I am aware that you have a pending matter and that matter may become relevant. 

55In relation to prospects, I am guarded given your history and the circumstances of offending in the current situation.  However, you do have some prospects and they seem to be fairly strongly linked to you dealing with mental health and substance use issues, the two being related, seeking as much support as you can from the Aboriginal Cooperative and also the other cultural supports and making good on your statement that you want to provide a good example for your son and nieces and nephews and taking those steps to provide some stability in your life.

Sentencing Conversation

56You participated in the Koori Court Sentencing Conversation and you engaged well despite it being difficult for you.  You are not articulate, so it was challenging, but I am satisfied that you engaged fully.  

57You were challenged by the Elders, particularly in relation to the very unsavoury aspects of this case, particularly having a loaded weapon and also a controlled weapon that you had.   You were challenged and it was uncomfortable for you, but that is part of the Koori Court process and the sentencing indication and I take your participation into account.

58You expressed a desire to avoid recidivism and to provide a positive example and role model for your seven-year-old son.

59You also expressed a desire to connect and explore in a meaningful way your Aboriginal identity and cultural heritage.

60Your experience in custody to date for a substantial period has been during the restricted environment of the pandemic and that has had a well-documented effect on experience in custody and I take that into account that that period in custody has been harsher because of that experience.

61Your plea of guilty is significant and has a significant utilitarian value in the current environment and the current state of the trial lists.

Sentence

62Having regard to general deterrence and denunciation, just punishment, and also taking into account your prospects of rehabilitation and other matters personal to you, I sentence you as follows.

63Indictment A, which is the indictment including the possession of weapon charge, on Charge 1 on that indictment, you are to be sentenced to two years and three months imprisonment;

64On Charge 2, 12 months imprisonment;

65Charge 3, 12 months imprisonment;

66Three months of the sentence imposed on Charge 2 and three months of the sentence imposed on Charge 3 are to be served cumulatively on the sentence imposed on Charge 1.

67On Indictment B, which is the threats indictment – I will just have to correct what I said at the outset, you pleaded guilty to two charges of threaten to inflict serious injury.

68On each of Charges 1 and 2, on Charge 1 of that indictment I sentence you to 10 months' imprisonment – one month to be served cumulatively on Charge 1 on Indictment A and on Charge 2 I also sentence you to 10 months' imprisonment, one month of which is to be served cumulatively on Indictment A and cumulatively on other sentences.

69That should make a total effective sentence of two years and 11 months' imprisonment.

70I declare that you have served two years and 11 months.  In fact, as I understand it you have served more than that, but I will make a declaration, of course, only in relation to what the head sentence is in this matter.

71Whilst it is academic, given you have already served this sentence, I indicate that I would set a non-parole period of two years and three months before being eligible for parole, but of course you have served the entirety of that sentence.

72I forgot to add in relation to the offences of possessing a controlled weapon, possessing cartridge ammunition and store an explosive without authority I sentence you to an aggregate fine of $1000.

73Pursuant to s6AAA of the Sentencing Act, were it not for your pleas of guilty I would have sentenced you to a total effective sentence of four years and three  months with a non-parole period of three years.

74Are there any other matters I need to address?

75MS THEOCHAROUS:  No, Your Honour.

76MR ROPER:  Pre-sentence detention, Your Honour?

77HIS HONOUR: Yes, I indicated pre-sentence detention, not in days because I just have not done the calculation. I declare pursuant to s.8 of the Sentencing Act that he served two years and 11 months as pre-sentence detention.

78MR ROPER:  Yes, Your Honour.

79HIS HONOUR:  I think the actual days that he has actually served exceeds that, but if I make the declaration it might impact on the availability of some of those days for any future sentence.

80MR ROPER:  I understand that, Your Honour.

81HIS HONOUR:  I also make the disposal order that is sought.  Are there any other orders that were sought or anything else I need to state?

82MR ROPER:  No, Your Honour, that covers it.

83HIS HONOUR:  All right, thank you, Ms Theocharous, thank you, Mr Roper.  We will adjourn the court.

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