Director of Public Prosecutions v Harrison
[2018] VCC 262
•13 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 17-02378
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| TRAVIS HARRISON |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 29 January 2018 |
| DATE OF SENTENCE: | 13 March 2018 |
| CASE MAY BE CITED AS: | DPP v Harrison |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 262 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | OPP |
| For the Accused | Ms Rolfe | Kurnai Legal |
HIS HONOUR:
1 Travis Harrison, you have pleaded guilty to one charge of armed robbery. The maximum penalty for this offence is 25 years' imprisonment.
2 You have also pleaded guilty to one uplifted summary offence of committing an indictable offence whilst on bail. The maximum penalty for this offence is
30 penalty units or three months' imprisonment.
3 In addition, you admit breaching a Community Corrections Order (CCO) that was made by Judge Smallwood in the County Court on 8 April 2016.
4 Your offending can be summarised briefly. On 4 December 2016 you were staying with your cousin, Mathew Harrison, and his partner at their home in Traralgon. At 9 pm that night you and your cousin walked to a home that was occupied by Alarna Young. Your uncle knew her. You apparently went to the address to purchase cannabis. Unknown to your cousin, you had two kitchen knives hidden in your pants.
5
Ms Young was at home with her three young children and Robert Baillee, a man who let a room at the house. Another man who lived in a caravan on the property was also at the house. You knocked on the door and Mr Baillee answered it. You asked for a drink of water and followed Mr Baillee into the kitchen. You then produced a small knife and held it at against his neck. You pushed him to the ground. You stood over him, brandishing the knife. Mr Baillee began kicking at you and you removed a bigger knife and held it towards
Ms Young. You told Mr Baillee that if he did not stop kicking you would, “cut her.” This forced him to stop.
6 You then began demanding money. You told Ms Young not to touch her phone. She became emotional and you also became upset. Your cousin told you to stop your behaviour and leave. You became angry with him and told him to shut up. You threatened to harm him unless he helped you. You told him to remove the children to a bedroom whilst you attempted to steal items. Your cousin refused and insisted that you leave with him. You removed a small amount of coins from a drawer and left the premises.
7 You were arrested on 6 December 2016. You made a no comment interview. You have been held in custody since that date.
8
Obviously, this is a serious offence. After being invited into Ms Young’s home you produced a knife and held it against Mr Baillie’s neck. You pushed him to the ground. You threatened Ms Young with a larger knife. This offending occurred in the place where they were living, a place where they were entitled to feel safe and secure. Your behaviour must have been terrifying for both of them. The offending is even more concerning when you consider that
Ms Young’s children were in the area where the offending took place. You showed no concern for their welfare. When you committed the armed robbery you were on bail and on a Community Corrections Order.
9 In this case general deterrence, just punishment and denunciation are highly relevant sentencing considerations.
10 You have significant and relevant prior convictions. You started offending as a teenager. You have many prior convictions for offences of violence and you have spent much of the last few years in custody. This history means that specific deterrence and protection of the community are also relevant sentencing considerations.
11 I now move to matters relevant to your background and matters in mitigation. You are 27 years old. You are a Gunai Kurnai man. You were born in Moe and raised in Morwell. You parents separated not long after you were born and you had limited contact with your father. When you were three years old your mother entered a new relationship and there are three children from that relationship. In addition, your mother cared for three of her brother’s children.
12 Your family circumstances were very difficult. Although your mother did all she could to support you, she had a significant problem with alcohol. She also had the onerous responsibility of looking after your cousins and step-siblings. Your relationship with your stepfather was volatile. At times he was violent towards you and towards your mother. He also abused alcohol.
13 As a child and teenager you were exposed to considerable violence in the extended family network. I was told that you spent weekends with your cousins where you regularly witnessed family violence perpetrated by your uncles upon their partners. Your uncles were in and out of jail. They were poor role models for you.
14
You were also exposed to considerable substance abuse. You told
Ms Carla Lechner, a clinical psychologist who assessed you on 2 March 2018, “drugs and alcohol were an everyday thing.”
15 You were introduced to cannabis when you were just ten years old. You were using that drug daily by the time you were 12 years old. You also commenced abusing alcohol as a 12 year old. You developed a regular pattern of heavy drinking. You also commenced abusing inhalants. You commenced using methylamphetamine when you were 18 years old.
16 In these circumstances it is not surprising that you were not well engaged in the school system. You attended four schools before being sent to the Barringa Special Development School at the age of 13. When you were 15 you returned to the KODE School for a short period of time. You are poorly educated. You have never had paid employment.
17 In 2005, when you were 14 years old, you were assessed by DHHS as having an intellectual disability within the meaning of the Intellectually Disabled Person’s Act, 1986. A 2005 report indicated that you presented with significant deficits in cognitive functioning and adaptive behaviour.
18 In the same year you started appearing in the Children’s Court. A report from Ms Williams, Disability Case Manager, DHHS, confirms that on 24 May 2005 the Children's Court referred you to Disability Client Services (DCS) as a condition of a Probation Order. However, because you had been linked into the Youth Substance Abuse Service (YSAS) and the local Koori cooperative for anger management counselling, Youth Justice and DCS determined that DCS supports were not required. There were efforts to engage you with DCS in 2011, 2013 and 2015 but you did not maintain contact with the service.
19 Your life has also been affected by multiple deaths within your family and the significant distress that these losses have caused you. In her report Ms Lechner explains how you have been deeply affected by the death of family members and especially by the death of your mother with whom you were very close. Your mother died in December 2015 when you were in custody. Her death, not surprisingly, had a profound impact. In recent years you have endured the death of both parents, three of your maternal uncles and your maternal grandfather. Ms Lechner expressed the opinion that your unresolved grief is a contributing factor in your ongoing substance abuse problem.
20 I have spent some time on your background because it is relevant to a number of sentencing principles that are relevant in your case. First, I am satisfied that you come from a background of deprivation and disadvantage and that this reduces your moral culpability. As a consequence, there should be some moderation of the weight to be given to the principle of general deterrence. However, as Mr Roper, the prosecutor, submitted, the hardship you have suffered has left you with a propensity to behave violently towards others. This means that I must give appropriate weight to the principle of community protection.
21 Secondly, as your counsel submitted, your addiction to drugs and alcohol arose out of your exposure to those substances as a child and in circumstances where you could not be said to have exercised a rational choice. Your drug addiction is a relevant matter in your prior history. I am satisfied that there is a link between your offending and poly-substance abuse and that your addiction, given the circumstances in which it arose, mitigates to a degree your moral culpability.
22 Thirdly, there should be appropriate acknowledgment of the reduced moral culpability that arises from your intellectual disability. In her report of 9 March 2018, Ms Williams states that your impairments in emotional regulation and understanding of social norms have, “interfered with community participation and contributed to offending behaviours.” Ms Lechner states in her report that you have an IQ of 65. She refers to your limited capacity to reflect upon the impact of your behaviour upon others and how you struggle to anticipate and evaluate consequences, often acting impulsively with no regard for the consequences.
23
Before leaving your background I will say a few words about the breach of the CCO and the context of the current offending. On
8 April 2016, His Honour Judge Smallwood placed you on a CCO that was to commence upon your release from prison later that year. He particularly wanted you to be on an order with a Justice plan and with the opportunity to reside at Wulgunggo Ngalu. You have never resided at that place. It is run by Corrections and offers Aboriginal men on a CCO the opportunity to reside in a safe place whilst undergoing assessment and treatment for the issues that lie behind their offending. It also gives offenders the opportunity to strengthen their cultural connections.
24 You were released from prison in September 2016. Unfortunately, you did not attend upon Corrections and you did not go to Wulgunggo Ngalu. I was told by your counsel that you were still in the throes of grief following the death of your mother in December 2015. You went to live with your cousin, Percy, in Bairnsdale. This was not a safe place for you to reside. You were also very concerned for the health and welfare of your paternal grandfather. In these circumstances you prioritised family matters over your obligations on the CCO. Inevitably, you relapsed into the abuse of alcohol, methylamphetamine and cannabis.
25 On 22 November 2016, you were charged with offences that included drunkenness, assault police and resist arrest. You were released on bail to appear at the Latrobe Valley Magistrates’ Court on 7 March 2017. It was this bail order that you breached when you committed the current armed robbery.
26 On 2 December 2016 you were arrested after a drinking session in Churchill. You spent some hours in the cells at Traralgon. Upon your release you went to your cousin’s house. You resumed drinking and went with your cousin to purchase cannabis from the home where the victims of your current offending resided. You were heavily affected by alcohol and it seems that you had formed the misconceived idea that if a person was selling drugs it was okay to steal from them.
27 I accept your counsel’s submission that the offending was unsophisticated, that you were not disguised and that you only took some coins from the house. However, that needs to be balanced against the location of the offence in the victim’s own home and the fact that children were present at the time.
28 You have pleaded guilty. It is an acceptance by you of responsibility for your offending. It has saved the victims from the trauma of giving evidence and also saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.
29 You consented to having the charge heard in the Koori Court. In doing so you agreed to participate in a process that involves appearing before elders from the Koori community. The process is described as a “sentencing conversation.” It was apparent to me from the way you participated in the process that you do have some insight into the problems in your life that you need to address and that you are now expressing a willingness to use support to help you try to address these problems. This is particularly important because in the past you have rejected the supports that have been offered to you. I give you credit for your participation in the Koori Court process. The Court of Appeal has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.”[1] Participation in the process is not easy. Indeed it is challenging and your participation in the process is a factor that is relevant to sentencing.
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
30 Mr Harrison, you have a significant criminal record for offences of violence. Your deprived background, your early introduction to drugs and your intellectual disability explain the history. However, the fact that you found it difficult in the past to use community supports to change your behaviour explains why I am guarded about your prospects of rehabilitation.
31 However, I do accept that there are a number of positive developments that offer cause for hope about your future. As I have said, in the past you have not shown any commitment to working with agencies that could offer you assistance. You have failed in the past to meaningfully engage with Disability Services and you have not participated in effective drug rehabilitation. When you were recently given the opportunity to attend Wulgunggo Ngalu, you failed to do so. This confirms what you said to Ms Lechner, namely, that although you had been given opportunities in the past you really did not commit to changing your behaviour. You now express a different view. You told Ms Lechner that you do want to change and that you would welcome the opportunity to attend Wulgunggo Ngalu. You also expressed a willingness to engage with Disability Services. You confirmed these matters in court during the sentencing conversation. Indeed, Mr Hood, an Aboriginal worker from Kurnai Legal, told the court that it was significant that you were expressing a real desire to change your behaviour because he had not heard you say that before.
32 Your prospects are further enhanced by your behaviour whilst on remand. I have been told that you have attended educational programs designed to improve your literacy, numeracy and vocational skills. You have completed the Koori Healthy Lifestyle Plan and Koori Substance Use Program training. Your participation in these programs is to your credit.
33 Mr Harrison, this is not an easy sentencing decision. On the one hand you have committed a serious offence whilst on bail and in breach of a CCO. You have a significant criminal history and you have not responded to community supports in the past. In such a situation deterrence and community protection are highly relevant.
34 On the other hand, you come from a deprived background with early exposure to inappropriate drug and alcohol abuse. You have an intellectual disability that impacts on the way you behave. You are still a relatively young and you are now expressing a strong desire to attend Wulgunggo Ngalu and work with Community Corrections to address your drug and alcohol problems. You are willing to work with Disability Services. You have now spent some 461 days on remand. You understand that should you be released you will be required to live at Wulgunggo Ngalu and participate in the programs that are offered there. These are all positive developments.
35 You have been assessed as suitable to undergo a Community Corrections Order with a Justice plan and to reside at Wulgunggo Ngalu. Your counsel submitted that such a disposition would provide a stepping-stone for your return to the community and enhance your prospects of rehabilitation. I agree with that submission.
36
I was advised that should I make an order that allows for your release today
Ms Williams would provide support in transporting you to Wulgunggo Ngalu and Corrections have confirmed that you can be immediately accommodated at that place.
37 Mr Harrison, I have come to the conclusion that it is in your best interests and the community’s best interests if an order is made that enables you to attend at Wulgunggo Ngalu. Attendance at the program is not possible by way of parole. It can only happen as part of a condition of a CCO.
38 Mr Harrison, on the charge of committing an indictable offence whilst on bail you are sentenced to 14 days' imprisonment and I direct that that sentence be served concurrently with the sentence that I will announce shortly on the armed robbery charge.
39 On the charge of armed robbery you are convicted and sentenced to be imprisoned for 461 days. I declare that you have served 461 days' pre-sentence detention.
40 The order on the armed robbery charge is coupled with a Community Corrections Order for a period of 18 months. The order commences today and it has the following conditions attached:
you are to be under supervision;
you are to attend for drug and alcohol treatment and rehabilitation;
you are to attend for mental health treatment and rehabilitation;
you are participate in a Justice Plan; and
you are to attend other programs for treatment and rehabilitation. (This final condition is directed to your attendance and residence at Wulgunggo Ngalu.)
41 The contravention of the Community Corrections Order is proved. I cancel the original order and make no further order, and I do that because I have today placed you on another Community Corrections Order for 18 months.
42 If you had pleaded not guilty and been found guilty after a trial I would have sentenced you to a term of imprisonment of two years and six months and set a minimum term before you would be eligible for release on parole of 18 months. That would be the total effective sentence on the armed robbery and the offence of committing an indictable offence whilst on bail.
43 So, Mr Harrison, in summary you have been convicted and sentenced to 461 days' imprisonment, and I make a declaration that you have served that time, all right? I will repeat that: 461 days, that time has been served. So you will now have to go back downstairs. You will then be released on the Community Corrections Order and you will have to go to Wulgunggo Ngalu; you understand that? You have to go to Wulgunggo Ngalu with Ms Williams, who will wait for you downstairs, take you to the railway station or the bus stop or wherever. She will travel with you to the valley and to Wulgunggo Ngalu and that is where you have to reside. So do you understand that?
44 ACCUSED: Yeah, I understand that.
45 HIS HONOUR: Yes. So you will not be released immediately. You have to go back downstairs because you have probably got property and the Corrections people will need all the documentation to show what has happened today. When you are released Ms Williams will be waiting for you and you go with her to Wulgunggo Ngalu. I need just to explain this to you. If you do not do that you will come back to court on a breach and I will send you back to gaol. So as you have said all along, you want the chance. I am giving you the chance. You make the most of it. You understand all of that?
46 ACCUSED: Yeah, I do.
47 HIS HONOUR: All right. Just take a seat there because we will print up the papers and we have to get you to sign them. Is there anything else? There were no other - - -
48 MR ROPER: No, Your Honour.
49 MS ROLFE: Your Honour, just in terms of the timeline for the processing of the paperwork, it is likely beyond Your Honour's hands but the guard that is present in court did indicate if the paperwork was received before 1 o'clock it may be done within the hour.
50 HIS HONOUR: Yes, right.
51 MS ROLFE: But beyond that it could take longer. The transport is 2.20. I just wonder if Your Honour is able to make some remarks in respect of the transport. That may well have an effect on the authorities.
52 HIS HONOUR: Sorry, when you say the transport you mean that is when the train leaves?
53 MS ROLFE: That is the next one.
54 HIS HONOUR: That is the next train. Well, I understand from Mr Hood, and he has good knowledge in these matters, that there are trains every hour.
55 MR HOOD: Thereabouts, yes.
56 HIS HONOUR: Yes, thereabouts. So - - -
57 MR HOOD: But there are buses from Southern Cross to Pakenham and a train from Pakenham to there.
58 HIS HONOUR: Ms Williams, you might - - -
59 MS WILLIAMS: It is approximately 2.20 for the next one, 3.20 for the following one. My understanding is there are trains running from the city to Morwell but there are buses coming back. So it is the - there are a lot of line works at the moment.
60 HIS HONOUR: All right. Well, look, I will sign the orders straight away. It would be, given what we are trying to achieve here, incredibly beneficial if those downstairs were able to process this matter as a priority. I understand, of course, that that is not always possible.
61 PRISON OFFICER: I will ask, Your Honour, but they depend on getting the paperwork but (indistinct) after one. It takes a couple of hours.
62 HIS HONOUR: Yes. We will give you the paperwork straight away. I will sign the orders now.
63 MS ROLFE: Thank you, Your Honour.
64 HIS HONOUR: My associate has been very diligent in attending to all of this so we will get it done immediately. All right, now, Mr Harrison will just have to sign his consent to the Community Corrections Order.
65 MS ROLFE: May I approach, Your Honour?
66 HIS HONOUR: Yes, certainly. Ms Hales, you have been listening to this with interest so you can see that what we are trying to do is to get Mr Harrison down to Wulgunggo Ngalu tonight.
67 MS HALES: Yes.
68 HIS HONOUR: And then once he is at Wulgunggo Ngalu you will liaise with him about all the other conditions of the order; is that correct?
69 MS HALES: Yes, Your Honour.
70 HIS HONOUR: Thank you.
71 MS HALES: May I be excused. Your Honour?
72 HIS HONOUR: Yes, certainly.
73 HIS HONOUR: Ms Williams, thank you for your assistance in this matter and hopefully he can be processed and out of here within the hour, if not it might have to be the 3.20 train.
74 MS WILLIAMS: Thanks, that is fine, yes.
75 HIS HONOUR: But hopefully the Corrections worker heard what I said and they will do all they can to process him ASAP.
76 MS WILLIAMS: Yes. No, it is good that he gets to go.
77 HIS HONOUR: Ms Rolfe, can I commend you on your plea in this matter? It was a very thorough, very well presented plea.
78 MS ROLFE: Thank you, Your Honour.
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