Director of Public Prosecutions v Harrison

[2018] VCC 759

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-18-00714

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRIAN ROBERT HARRISON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	25 May 2018
CASE MAY BE CITED AS:	DPP v Harrison
MEDIUM NEUTRAL CITATION:	[2018] VCC 759

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Warren	Office of Public Prosecutions
For the Accused	Mr R. Davis	Robert Davis

HIS HONOUR: 

1Brian Robert Harrison has pleaded guilty to one charge of sexual penetration with a child under the age of ten years.  Yesterday I sentenced him to be placed upon a 12-month undertaking without conviction with a special condition that he give $500 to the Quantum Services within two months and satisfy me of that having been done within three months.  I now give the reasons for the imposition of that sentence.

2Brian Robert Harrison, you have pleaded guilty to one charge of sexual penetration with a child under the age of ten.  You are now 41 years of age.  You pleaded guilty at the earliest reasonable opportunity and I accept there is appropriate remorse and a great deal of utilitarian benefit in this plea of guilty.  You made admissions to the police in a record of interview and made admissions to the complainant in a pretext call.  It is quite clear from that that you do have appropriate remorse and it is also clear that the plea of guilty is accompanied by materials which enabled the Crown to prosecute you.  Had this proceeded without the pretext call and your openness in that and the admissions in your interview, it would be very unlikely that the Crown would ever have been able to obtain a conviction against you.

3The circumstances of the offending are that - I do not think I have to go through the family backgrounds but the complainant would visit the property in Yallourn North.  There were a number of people living there including you.  During the time that this offending took place, she was aged between around about four and eight.  You were aged 11 to 14, give or take.  Obviously with sexual offending, there was a very long period of time a presumption that a boy under the age of 14 was impotent.  That presumption had been abolished in 1980 and this offending is alleged to have occurred around the period of 1987 to 1990.

4The charge is a representative one of four separate occasions.  As I discussed with counsel, it is a very intellectually difficult sentencing process because it seems to me that the Crown are unable to actually particularise an age which each of these matters that give rise to the count occurred.  Accordingly, I believe I have to sentence you on the basis of the charge for which I do actually sentence you occurred when you were about 11 years of age.  Obviously, it is not to be treated in isolation because similar acts occurred subsequent to that.

5What would occur would be that the complainant would go to the property and play, riding motorbikes to various sheds, et cetera, on the property.  Once - the one for which I sentence you - while playing in a caravan, you exposed yourself to her and requested that she perform oral sex on you.  She complied and performed that sex.  On another occasion it happened in a cubby house.  Another occasion, it happened in a hay shed.  On the fourth of the occasions it occurred between the chicken sheds and hedges on the property.  The same sort of thing would occur each time that you would expose yourself and ask her to perform oral sex which she did.

6As I say, this was back in the late 1980s.  In March of 2015, she having obviously complained to police, spoke to you in a pretext call.  She asked why you did "those things" to her.  You said, "It was just, you know, we were sort of kids back then".  You said you did not have a reason and you were terribly sorry for doing it.  I accept that that is the fact of the case.

7When you were interviewed by police in March of 2015, you admitted that there had been fondling.  You admitted that she had sucked your penis on four to five occasions over about a 12-month period and agreed that that happened on the farm and generally in those circumstances. 

8You have no prior convictions.  There is no way you really could have, but you certainly have no subsequent matters either.  That goes very much to the prospects of your rehabilitation which I accept is for all intents and purposes complete.  You have a partner, you have a child, you have gainful employment, you are in charge of a number of men, you work as a yard foreman.  Nothing of a similar nature would appear to have occurred since and in your situation, I have no doubt that you will not reoffend.

9The real difficulty in sentencing in this matter is this:  you offended as a child.  You would have been subject to the Children's Court where of course general deterrence does not play a part in the sentencing process.  There would have been virtually in my view no penalty imposed at all had you been apprehended.  You may well have ended up on the wrong end of a care application but that is about as far as it would have gone. 

10As I said, there is a difficulty though.  The consequences of this to the complainant are dramatic and have been longstanding.  Filed was a victim impact statement and allowing for matters which I take no exception to because victim impact statements are about how a complainant feels, there are matters which I clearly cannot take into account in the sentencing process.  She dramatically describes an ongoing what would have to be post-traumatic stress disorder, the sense of guilt, the sense of blame of herself, the difficulty in terms of having intimate relationships, the fear for her own children in terms of being protected and those massive anxieties which permeate the lives of children who have been sexually abused.  It is often said that no sexually abused child is ever a happy adult and I think her victim impact statement eloquently describes that.

11But taking all those matters into account, it is a situation where I have determined after discussion with counsel that realistically, the appropriate disposition was an adjourned one but one which contained within it an acknowledgement of the damage that you had caused to what was then a young girl who is now a woman in a relationship with children.  Accordingly, the disposition I have described earlier was given and you have entered into it.

12In this situation, there is no s.6AAA as I understand?

13MS WARREN:  No, Your Honour.

14HIS HONOUR:  Nothing else?  No other orders?  Nothing else I need to do, is it?

15MS WARREN:  No, Your Honour.

16MR DAVIS:  No, thank you, Your Honour.

17HIS HONOUR:  There's no 464 or anything?

18MS WARREN:  No.

19HIS HONOUR:  Yes, thanks for that.

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