Director of Public Prosecutions v Harrison

[2018] VCC 1966

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00263

DIRECTOR OF PUBLIC PROSECUTIONS

v

MERVYN HARRISON

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2018
DATE OF SENTENCE:	26 November 2018
CASE MAY BE CITED AS:	DPP v Harrison
MEDIUM NEUTRAL CITATION:	[2018] VCC 1966

REASONS FOR SENTENCE
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Subject: Koori Court, Armed robbery
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L Hunter	OPP
For the Accused	Mr J Miller	Valos Black

HER HONOUR:

1Mervyn Harrison, you elected you have your plea heard in the Koori Court and you have pleaded guilty to one count of armed robbery.  The maximum penalty for this offence is 25 years.

2The prosecution filed a summary of prosecution opening on the plea, Exhibit A, and your offending can be briefly described as follows.  At approximately
2.30 am on 17 January 2017, you and two others went to the Parkview Hotel, Fitzroy North.  You and one of the other men entered the gaming area, and you produced from under your jacket a sawn-off double-barrelled shotgun.

3The two of you both approached the cashier, and you pointed the firearm at her as you walked towards her and demanded money.  Other patrons were told not to move.  Your co-offender jumped the counter and pushed the cashier out of the way as she was getting the money.  He grabbed the money, a total of $10,500, and put it in his bag whilst you continued to point the firearm at her.  You both then left the hotel and ran away with the third person who was waiting outside.

4Police were able to identify you as involved through a combination of pieces of evidence:  (a), you were recognised in a still from the CCTV footage by a police officer; (b), your DNA was found on a jacket which the CCTV showed had been worn by the armed offender - this jacket was found a few hours after the offence in park in close proximity to the hotel, and; (c), you were in possession of various items of clothing worn during the offence.  When interviewed, you denied any involvement in the offending.

5No victim impact statement was filed, however it is clear the cashier would have been petrified when you and another entered the hotel in the early hours of the morning and pointed a double-barrelled shotgun at her, demanding money.  People are entitled to feel safe in their work environment and not be subjected to such a terrifying experience.

6I note that you were sentenced by Her Honour Judge Fox of this court on
6 September 2018 for offences of aggravated burglary and robbery that occurred on 28 January 2018, about ten days after this offence.  This offending involved a home invasion, where a female sleeping occupant was awoken to you carrying a knife and demanding various items.

7I was provided with the sentencing remarks in relation to that matter.  Those remarks provide a useful summary of your personal circumstances and those that existed at the time of the offending.  I was also provided with the report from Ms Carla Ferrari, psychologist, dated 22 August 2018, prepared for the purpose of that other matter.

8You are currently aged 27.  You were raised by your paternal aunt and uncle from the time you were a baby and have had little interaction with your biological parents or siblings.  Contact with both biological parents was explored with the elders in the sentencing conversation.  You regard your cousins as your siblings and you have a close and supportive relationship with them.  They are mostly in - excuse me, could you please not talk?  Thank you. 

9OFFENDER:  Beg your pardon, Your Honour.

10HER HONOUR:  They are mostly in the East Gippsland area around Morwell.  You continue to have a good relationship with your family, though none of them were able to attend court given that your father suffered a stroke and I was informed is currently hospitalised in Bairnsdale.  You continue to have phone contact with family every few days.

11You left school in Years 9 or 10 and you have never had any employment.  Having regard to your criminal history, it would appear that you began to get in trouble when you were aged about 13.  You had, however, only one court appearance in the adult court at the time of the commission of this offence in 2011 and you received a CCO.

12At the time of this offending, you had been in a long-term relationship, your
ex-partner for about eight years, and you had two daughters together. 
You were living in Melbourne, having moved there to be closer to Ms Lovett's family, though when the relationship broke down you were effectively homeless.  You had little support in Melbourne, and did not seek assistance from the family in Gippsland.  You began using methamphetamine and alcohol daily to cope with your emotions and stress.

13You have no history of mental illness.  However, Ms Ferrari assessed your demeanour as profoundly depressed.  Her diagnostic impression was that you may suffer from a major depressive disorder and amphetamine-type substance use disorder.  It was not suggested your condition was such as to enliven Verdins, though it may explain your lack of ability to cope with not seeing your daughters when the relationship broke down, and your increased drug use and chaotic lifestyle at that time.

14I take into account your level of participation in the Koori Court process. 
I formed the view in the sentencing conversation that your demeanour was consistent with that expressed by Ms Ferrari.  You were, however, able to actively engage in the sentencing conversation with elders, and expressed an understanding of the issues raised by them.

15You expressed a desire to give up drugs and to get on with your life, recognising the importance of your family and contact with your daughters.  I formed the view you have genuine insight into your offending and remorse.  This was the first time that you had been involved in the Koori Court process.

16I have considered and taken into account the matters to be take into account in mitigation as outlined in the recent Court of Appeal decision in Honeysett [2018] VSCA 2114.

17The court set out three factors which sentencing courts can use in assessing the weight to give to an accused's participation in the Koori Court process: 
(1), the fact that participation is voluntary and may be confronting to an offender, likely to involve him being shamed; (2), the fact the offender, rather than hiding behind counsel, is taking the opportunity to personally demonstrate remorse and demonstrate insight into the reasons for and serious and effect of his offending, and; (3), expressing any intention to reform and how that will be done, including by participating in available rehabilitative programs.

18The court's assessment of the genuineness of the offender's statements during this sentencing conversation.

19Although your plea was not at the earliest opportunity, you are entitled to some benefit.  None of the witnesses were required to relive the traumatic incident at the hotel.  Further, your plea shows an acceptance of responsibility for your actions and a willingness to facilitate the course of justice.  There is utilitarian value in your plea, as you have saved the community the cost of a trial.  Consistent with your presentation and expressions in the sentencing conversation, I accept your plea is indicative of remorse.

20I was provided certificates relating to courses undertaken by you whilst in custody relating to drug and alcohol use.  Although your behaviour in custody has involved an instance of drug use resulting in a change in your classification, you have been reclassified and returned to Fulham.  You have been working on your physical health and employed during horticultural tasks in custody.

21You recognised in the sentencing conversation the need for you to stay away from substances, particularly for the sake of your contact with your daughters.  You presented as ashamed and remorseful for your conduct and motivated to utilise the courts both within custody and outside.  You have engaged with Aboriginal workers in the system and are prepared to continue to do so to address your issues.

22Clearly, you will require assistance, and I accept Judge Fox's view that your rehabilitation prospects are guarded.  As indicated to you by Judge Fox, you are at a critical stage where there is still a possibility for you to change your circumstances and create a better future for yourself if you engage in supports that are available to you.

23This is a serious offence, as reflected by the maximum penalty.  Your choice of weapon in the armed robbery was particularly terrifying.  No doubt, the effect of your offending on the victim and possibly other patrons was significant.

24You were arrested for the other matters on 9 March and remanded. 
You remained in custody until 16 June 2017.  You were re-arrested on 3 August 2017, and on 30 November 2017, dealt with in the Magistrates' Court for other summary matters and received a 100-day sentence or time served.  You were sentenced on 6 September this year to a total effective sentence of three years and three months' imprisonment with a non-parole period of 22 months.

25Pre-sentence detention of 393 days was declared, or approximately one year, one month.  You have thus been in custody since August last year, and I take those periods into account in terms of totality.

26General deterrence and denunciation are important relevant sentencing considerations.  Specific deterrence is also a factor, as is community protection.  These must be balanced with the matters in mitigation as outlined above. 
Your counsel conceded that the only appropriate sentence was a further term of imprisonment.

27If you could please stand, Mr Harrison?

28In relation of armed robbery, you are convicted and sentenced to a term of imprisonment of four years.

29Three years of the sentence imposed will be concurrent with the sentence that you are currently undergoing.

30Pursuant to s.14 of the Sentencing Act, I am required to set a new non-parole period.  That is commencing today, and taking into account the time that you have already served, I set a new non-parole period of 20 months.

31Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have sentenced you to a term of imprisonment of five-and-a-half years.

32I think there is a disposal order for me to sign.  Is there anything else?  You can sit down, Mr Harrison.

33MS HUNTER:  Just the disposal order, and there were the additional five days of pre-sentence detention.

34HER HONOUR:  All right.  Sorry.  Yes, I will declare the five days PSD. 
Thank you.  There is nothing else I need to do?

35MR MILLER:  No. 

36HER HONOUR:  All right, thank you.  I will just stand down.

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