Director of Public Prosecutions v Harrison

[2019] VCC 1907

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 19-00147

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARLEE HARRISON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	30 July 2019
DATE OF SENTENCE:	19 November 2019
CASE MAY BE CITED AS:	DPP v Harrison
MEDIUM NEUTRAL CITATION:	[2019] VCC 1907

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D O’Doherty	Office of Public Prosecutions
For the Accused	Mr P. Murphy	Warren, Graham & Murphy Pty Ltd

HIS HONOUR:

1Marlee Harrison, you have pleaded guilty to one charge of home invasion and one charge of theft.  Those crimes carry maximum penalties of 25 years and
10 years respectively.

2You were 20 years of age at the time of the offending and you are still only
21 years of age.  Accordingly, you missed the opportunity of Youth Justice in those circumstances and, indeed, have served 31 days on remand in adult custody.  I take those matters into account.  You obviously are still a young man.

3You pleaded guilty at the earliest reasonable opportunity, and having heard you speak to the elders and I have spoken to you myself in Koori Court, I accept that you do have genuine remorse in this situation and of course you must get the utilitarian benefit of that plea of guilty.  You have very few prior convictions, which is quite extraordinary for somebody who has had your upbringing, and that gives me great confidence in terms of a sentencing disposition which allows you to rehabilitate and fit within the community.

4A summary of the offending is that you, in concert with other offenders who have been dealt with in the Children's Court, and I will come to that in a moment, attended at an apartment on the Princess Highway in Bairnsdale.  You and others entered the victim's unit via a back door.  You were dressed in dark clothes with your faces covered and one of them stood out as a lookout in the back yard.  There victim woke to you standing over him, grabbing him by the shirt, pushing him down and pushing your hand underneath his chin.  You had your hand up behind his head and it looked to him like you were going to hit him.  You demanded that he show you where the money was.  That is the charge of home invasion.

5You forced him into the lounge room, holding his hand behind him.  Another accused took the complainant's wallet, which contained approximately $400 with credit cards and a bag with change was also stolen and that gives rise to the theft.  You all exited the unit and as you were leaving one of your co-accused threatened the victim, saying sometimes like, 'Don't tell the police or we'll hurt you', or words to that effect.  The complainant recognised that person's voice.  As you were leaving somebody smashed the bathroom window.  Ultimately your fingerprints were found on the broken bathroom window and that gives rise, as I understand it, as to how you were ultimately detected.

6You, when spoken to by police in October 2018, made admissions and I take that into account in terms of your openness with the police.  On 6 December the three co-offenders were sentenced in the Children's Court to youth supervision orders without conviction.  They were aged between 16 and 17.  Whilst your age was 20, it is clear from the materials before me that you do suffer from a mild intellectual disability.  I think it is fair to take the view that your mental age is probably around about the same as your co-accused.  In those circumstances I think that you are entitled to a degree of parity.

7I also note in the materials that you have tended over the years to be used by younger people because of your size and physical fitness as a bit of an enforcer, if that is not too strong a word.  I accept in these circumstances you are now fully aware of the potential consequences of doing that and I accept what you have said to the psychologist, that you have now disassociated yourself from those other young offenders and you intend to not offend in the future.  There is no victim impact statement.

8Home invasion is a serious crime and has to be regarded as such.  The usual course of events calls for the application of general and specific deterrence as well as denunciation and an appropriate punishment.  In your particular situation it is agreed at the Bar table that the time that you spent in custody, being
31 days, being the first time you have ever been locked up, together with a Community Corrections Order of appropriate duration is the appropriate disposition.

9The Corrections order will have you subject to treatment and rehabilitation for drugs, programs to reduce reoffending.  You will be subject to a Justice plan for a period of two years during the course of this Community Corrections Order, and you will also be subject to the NDHIS people.

10In these circumstances I do not, I think, need to go through your background.  It is contained within the reports that I have directed remain on the court file.  It is a case where anybody reading those reports, albeit with some difficulty, would realise that the principles involved in cases such as Bugmy and Murral, Muldrock, Fuller-Cust, all apply in your circumstances.  You are a young Aboriginal man from a large family.  You, during the course of your childhood, were exposed to all sorts of dysfunctional activities, and again, you are sitting here with support from your sisters.  I do not think I need to go into that detail.

11The prospects of your rehabilitation should be good, I think, despite your disabilities, and I just put on the record that I have seen in the statement of an intellectual disability.  You have been able to get through life without offending in any significant way up until this occurred.  The risk of you reoffending should be slim.  I am also very much aware of your participation in Koori Court and I can indicate for the purpose of these sentencing remarks, that the elders were very impressed by your openness, your honesty and your determination to do well for yourself.

12As I indicated to you, if you do run into problems as you go through life they are always available to you to give you assistance.  Can I also say, being on a Community Corrections Order, if you run into problems it is important that you get in touch with the people who are looking after you, all right.  There are a lot of people genuinely interested, genuinely concerned, all right, and they like you, all right, which often is not the case.  So if things do start to go wrong, make sure you talk to people, Marlee, all right.

13All right.  Well, having said those things, on the two charges - yes, it will be - - -

14VOICE (from body of the court):  Sorry, Your Honour, it's a hasty development.

15HIS HONOUR:  All right, yes.  Hang on, what am I doing here?  Sentencing Marlee.  Yes, be two charges, be a combination, be an aggregate sentence of 31 days on the home invasion of theft, to be followed by a CCO with conviction, which is a punishment in itself, three years' duration with the conditions that I have outlined.

16In these circumstances with 6AAA I simply say that but for the plea of guilty it would have been six months with a CCO.

17MR WAREHAM:  If Your Honour pleases.

18HIS HONOUR:  And 31 days I direct as having been served.  That is right, yes.  Yes, there is also a Forensicare.  Yes, I had forgotten that.

19MS WATSON:  Yes, Your Honour.  I also understand a compensation order was filed.  I will double check that, Your Honour.

20HIS HONOUR:  All right.  I will make the saliva sample.

21MS WATSON:  Thank you, Your Honour.

22HIS HONOUR:  What I am doing, Marlee, I am ordering that you provide a saliva sample for DNA purposes.  That order having been made I must advise you that should you refuse to provide such a sample to police they may use reasonable force to take it from you, and that order is made and handed down.  Was there a compensation?  I did not - normally with someone like him I would not order it.  I mean it is - - -

23MR WAREHAM:  A young man, Your Honour.  In all of the circumstances - - -

24HIS HONOUR:  He is totally - he is penniless.  I am not going to do that.

25MS WATSON:  As the court pleases.

26HIS HONOUR:  It was not, yes.  No, all right.  All right, yes.  So, Mr Wareham, if you would not mind going? All right.  So what we have done, right, now, I know you have struggled a bit with this but what is done is you have done the time, all right.  That is all over, all right.  You are now on a Community Corrections Order, which would have been explained to you, and as I say, do not - and I am sure you are not going to mess up by offending or anything like that but work with them, they can help you a lot.  There are a lot of black fellas around who are going to help you too, all right, and just travel well, my friend, all right?

27ACCUSED:  Yeah.

28MR WAREHAM:  Thank you, Your Honour.  I will endeavour to explain the orders in full in a moment.  I just need to mention a matter in front of Your Honour then I will explain those orders in greater detail.

29HIS HONOUR:  Yes, all right.

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