Director of Public Prosecutions v Harrison
[2017] VCC 2006
•21 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-01733
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COLIN VINCENT HARRISON |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2017 | |
DATE OF SENTENCE: | 21 December 2017 | |
CASE MAY BE CITED AS: | DPP v Harrison | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 2006 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentencing
Catchwords: Recklessly causing serious injury and common assault – lengthy delay – sentence served in Western Australia for serious violent offence – excellent progress on Parole – good rehabilitation prospects
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Trotman | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms O Thompson | Victorian Aboriginal Legal Service |
HER HONOUR:
1 Colin Vincent Harrison, you have pleaded guilty to one charge of causing serious injury recklessly and two charges of common assault.
2 The offending relates to events that occurred at Lilydale on 23 September 2007. Charge 1, Graeme West is the principal victim. He is now deceased. Steven Davis and Darren Brehaut are the victims of Charges 2 and 3 respectively.
3 Your offending is serious and that is reflected in the maximum penalty prescribed by law and that is 15 years’ imprisonment for recklessly causing serious injury and 5 years’ imprisonment for common law assault.
4 In addition, you have admitted your prior criminal history.
5 There were five court appearances in Victoria spanning a period from 14 September 2004 to 23 June 2005. In the past you had charges laid in respect to criminal damage, possession of liquor under 18 years, consume liquor under 18 years, theft from a shop (2004). You were placed on a without conviction community-based order for one year with special conditions. Then you were dealt with in 2004 for theft of a motor vehicle and fail to answer bail for which you received without conviction an adjourned undertaking of 12 months, and in 2004 you were also dealt with by way of fines for drunk in a public place and resist police. In 2005 you were dealt with for a theft of a motor vehicle and without conviction you were fined and also in respect to failure to comply with the earlier community-based order. The breach was found proven and the order cancelled.
6 Additionally, there is subsequent criminal history from Western Australia. On 25 February 2013 at the Perth District Court of Western Australia, you were convicted of assault occasioning bodily harm and imprisoned for 9 months and you were convicted of grievous bodily harm and imprisoned for 3 years. The sentences were ordered to be served concurrently making a total sentence of 3 years’ imprisonment.
7 There were also seven appearances in various Magistrates’ Courts recorded in Western Australia spanning the period 27 November 2009 to 8 November 2010. The appearances were for driving-related offences for which you received a variety of fines.
8 There is subsequent criminal history in Victoria. On 12 May 2008, breach proceedings were taken for failure to comply with the community-based order imposed 23 June 2005. The breach was found proven and the community-based order was cancelled. You were ordered to serve an aggregate of 21 days’ imprisonment and fines were imposed in respect to the liquor offences.
9 On 15 April 2009, breach proceedings were taken at the Heidelberg Magistrates’ Court in respect to breach of the suspended sentence and the sentence was reinstated, being 21 days’ imprisonment.
10 On 4 May 2009 at Heidelberg Magistrates’ Court, you were convicted of recklessly cause serious injury and criminal damage and placed on a community-based order with the conditions that you perform 100 hours unpaid community work.
11 There is one outstanding matter that is yet to be dealt with and that is listed at the Echuca Magistrates' Court on 30 January 2018 in respect to breach of the community-based order that was imposed on 4 May 2009.
12 Of note, you do not have any history of convictions for crimes of violence before this offending. You do however have relevant subsequent convictions about which I will elaborate shortly.
13 I will now proceed to sentence you on the basis of the summary of the prosecution opening that was read at the plea hearing.
14 The offending was committed by you in company with Christopher Paisley and Jai Shore. Their matters have been dealt with earlier in the County Court.
15 Mr Paisley contested his matters and was convicted after trial of one charge of recklessly causing injury to Graeme West only. He was acquitted of all other charges relating to Mr West and the other victim, Steven Davis.
16 On the 17 November 2011 he was sentenced by His Honour Judge M P Bourke to 2 years and 6 months’ imprisonment and 2 years of his sentence was suspended for 2 years and 6 months.
17 Mr Shore pleaded guilty to one charge of recklessly causing serious injury to the principal victim, Graeme West, and one charge of common law assault in relation to Steven Davis.
18 His Honour Judge M P Bourke sentenced Mr Shore to 20 months’ imprisonment. Such sentence was wholly suspended for a period of 2 years.
19 The principal victim, Graeme West, was aged 49 at the time of the offending. His death was from unrelated conditions.
20 At the time of the offending he was living with his daughter, Amie West, and his then fiancée, Lisa Korompay. Steven Davis, aged 24, was visiting Amie, who was his then girlfriend. Darren Brehaut, the final victim, was aged 15 and he is the son of Lisa Korompay and he was staying with his mother and stepfather, Graeme West, on the day of the offending.
21 At about 9.00 pm on Sunday 23 September 2007, the victims and Amie West were standing outside their home. You were a passenger in a car being driven by Jai Shore, and Christopher Paisley was the front passenger in the vehicle. The vehicle was stopped and somebody yelled out to Amie West for her to get in and go for a drive. She told you all to go away and that exchange was repeated at least three or four times.
22 Eventually, Mr West walked over to the car and asked you to leave. He was then sworn at by somebody in the car at which time he then returned to the car and leaned through the open rear window and responded and told you to again leave. At that point you grabbed hold of him by his shirt and pulled him into the car through the open rear window. His feet were only just touching the ground. Whilst holding onto him, you lay across the seat and kicked him to the head a number of times with force and eventually he was able to manage to pull himself free. He staggered backwards. You then got out of the car and approached Mr West and punched him to the face a number of times.
23 Steven Davis came to Mr West’s assistance and he was assaulted by both Jai Shore and you. You then assaulted Davis by punching him to the back of his head.
24 Darren Brehaut then intervened and you punched him to the stomach, winding him.
25 All three of you co-accused then attacked Mr West by punching and kicking him to the face whilst he was slumped over.
26 Police were called and when you became aware of that all three of you left the scene.
27 As a result of the assault, Mr West was hospitalised for eight days and suffered multiple facial fractures, a fracture to his left ring finger and a laceration to the right cheek. Photographs taken at the time depicting his injuries were exhibited and shown at the hearing.
28 Mr West lost three teeth as a result of the assault and had to have plates inserted into both sides of his face and jaw. He suffered swelling to the back of his head and pain to his back.
29 Prior to his death, Graeme West completed a victim impact statement. It was declared on 22 August 2011 and in that statement he complained about the physical injuries he suffered as a result of your crime and the difficulties sleeping because of the plates that were inserted. Whilst in hospital he had to be fed by drip because he could not eat because of the injuries. His clothing was damaged. He was anxious all the time and suffered flashbacks. He was having psychological counselling.
30 Mr Harrison, your offending was gratuitous, violent and unprovoked. It caused not only lasting physical injuries but also psychological damage to the victim.
31 The lengthy delay in dealing with your proceedings is attributable to you departing Victoria prior to your matter being dealt with. You went to live in Western Australia where you worked in the mines until you were arrested and sentenced in respect to the Western Australia matters.
32 A warrant for your arrest was issued on 4 December 2009 in Victoria when you failed to appear at a scheduled directions hearing.
33 It was not until 5 July 2017 that you were arrested on the warrant and then bailed.
34 Thereafter, the matter resolved by way of plea of guilty at committal case conference on 28 August 2017.
35 The hearing of your matter proceeded in the Koori Court Division of the County Court. A sentencing conversation was conducted with Uncle Steven Delaney and Uncle Lawrence Moser, Elders and Respected Persons.
36 By way of background, you are now 32 and you were aged 22 at the time of the incident. You are currently employed as a park ranger in Nathalia and reside in Echuca with your partner, Courtney Collard, your stepchild, Maddison (aged 7) and your son, Jackson (aged 2).
37 There were a number of people who were present to support you at the plea hearing including Courtney, her mother Robyn Inditch (who travelled from Geraldton, Western Australia), your mother, Susan Harrison, and your brother, Christopher Harrison.
38 Ms Thompson on your behalf made a plea in mitigation. She highlighted the fact that significant delay had occurred. The offending occurred some 10 years ago and she said the man who was involved in the offending is now a different man. She acknowledged that you were the principal in the offending and further acknowledged how serious the offending was. She highlighted the fact that you had entered a plea of guilty at an early stage, and the matter settled prior to any witnesses being called. I accept her submissions in relation to the early plea of guilty and I accept that there is real utility in your plea. You spared the victims the further trauma of trial and you saved the costs and expense of a trial. You have facilitated justice so your sentence will be discounted accordingly.
39 I accept that you now accept full responsibility for your actions and that you acknowledge that what you did on that occasion was wrong and further you acknowledge that you understand the harm that was caused.
40 There was a delay from the date you were interviewed on 24 September 2007 until the date of charge on 18 August 2009. The court was informed that this was due to operational pressures. That delay was beyond your control and I have had regard to that delay.
41 Following your departure from Victoria, you lived and worked in Western Australia. The further offence that occurred over there on 12 March 2011 resulted in you being imprisoned on 25 February 2013. The grievous bodily harm relates to you being in company with two others. You and the co‑offenders were involved in a verbal argument with the victims in a carpark area of a tavern. You started throwing rocks at one of the victims and you picked up part of brick paver and threw it at one of the victims, striking his head, causing him to fall to the ground unconscious.
42 On seeing his friend being assaulted, the second victim crossed the street in an attempt to protect him and you and the co-accused struck him, knocking him to the ground and kicking him repeatedly. That forms the circumstances of the assault charges that you were dealt with in Western Australia for which you underwent a term of imprisonment.
43 You were arrested on 21 March 2011 and made admissions in your record of interview.
44 Whilst in prison, you completed a high intensive violent offenders program. From that program you were challenged about your propensity for violence and during the course of the recent sentencing conversation you confirmed that you are now equipped with a number of tools that mean that you no longer use violence as a first resort to resolve disputes and that you have adopted a different lifestyle following your release on parole.
45 You completed your parole and adhered to the strict conditions. You renewed your licence, purchased a car and obtained work in the mines as a scaffolder. Your partner, Courtney, had your first child. You then worked for multiple companies in construction. When your son was 12 months old, you were made redundant and at around that time you came to live back in Victoria living in Echuca. You started studying with the aim of getting into parks and wildlife. Recently, having completed your studies, you were accepted for and now work in a position within Parks Victoria as a seasonal ranger. You have expressed the desire to live a more pro-social life and you are committed to your family.
46 Your mother resides in Echuca and is frail and in poor health. Your brother, Christopher, aged 34, works in construction and he also lives in Echuca. Your two younger surviving siblings are in employment and live in Ferntree Gully and Croydon respectively. Tragically, one of your brothers, Jared, is now deceased.
47 You grew up in Seville in the Yarra Valley.
48 You are an Aboriginal man belonging to the Dja Dja Warrung Tribe. You are living with your partner, Courtney, your two-year-old son, Jackson, and seven year old stepdaughter.
49 Your parents separated when you were only young, aged 10 months. You continued living with your mother who raised you as a solo parent. There was some fortnightly access with your father but that relationship was strained. Over the years there were periods where you did not talk for substantial numbers of years and currently you are attempting to renew your relationship with your father. Otherwise, you have good relationships with all your surviving siblings. Your older brother, Christopher, attended the sentencing conversation and spoke on your behalf.
50 You have limited formal education, having left school after Year 9. Thereafter you worked with family members. You have always been in paid employment save for times when you have been in jail. You are a skilled labourer with experience in bricklaying and also semi-skilled work working in the mines.
51 There was a history of substance abuse that was noted. At age 15 you commenced abusing alcohol and also sniffing petrol and paint. From ages 15 to 25, drugs were an issue, particularly ice. In addition from age 20 to 25, you were drinking heavily three to four days a week.
52 Ms Thompson relied on the fact that there has been significant progress insofar as your rehabilitation is concerned. I accept that it is now some 10 years since the offending before the court occurred and some six years since you have committed any offence. That is of great significance having regard to your prior criminal history and the other matters that have been dealt with by the courts that I have earlier set out.
53 The consequences of you being imprisoned in Western Australia have been a very real catalyst for change. It has enabled you to remain offence-free and also to develop more a pro-social lifestyle. You now have a loving and supportive relationship with your partner, Courtney. Courtney spoke at the sentencing conversation of you being a very supportive partner and good father to the children. You enjoy strong family support from your older brother, Christopher, and your mother. You now understand the consequences of your behaviour and the effect of your behaviour on others.
54 Alcohol was a significant problem at the time of this offending. Although you have not ceased drinking alcohol altogether, your use has dramatically reduced such that you only now drink occasionally and limit yourself to three or four beers. In the past when you were a young man in your early 20s, your lifestyle was totally devoted to drinking but now you are more devoted to being a family man. Your partner, Courtney, does not support any violence and will not tolerate it in your relationship.
55 Your brother, Christopher, confirmed that as a consequence of the Western Australian experience that you learned very harsh lessons and that there has been a massive change in your behaviour and attitude since undertaking the programs that you were required to do as part of the gaol term and parole. He says that you are a person who is interested more in learning about indigenous culture. He has been connecting you back to your country and cultural identity and is willing and able and wanting to continue to support you. He acknowledged that your offending was very serious.
56 Both your mother and your partner’s mother confirmed their view that you are a young man who supports them and is a good father to his children.
57 You were very attentive at the sentencing conversation and listened carefully to what was said by each of the Elders. They condemned you for your violence. They told you that your conduct was disgusting and that they were angry and horrified that you would do this to another person. They cautioned you to continue on the path that you have now chosen to change your lifestyle and to work hard to avoid reacting violently and attacking people physically.
58 They emphasised the cultural values of indigenous people are those of compassion, wisdom, understanding, self-respect, honesty and importantly, respect for others. They further urged you to continue developing your cultural contacts, to speak to your Elders in your community and to experience country.
59 I accept that your participation in the sentencing conversation is mitigatory and is indicative of your rehabilitation generally.
60 In sentencing you, I have had regard to the sentences that were imposed on the two co-accused. The principle of parity applies. This is, however, a difficult sentencing exercise having regard to the passage of time that has now elapsed since the offending, the fact that one of your co-accused proceeded by way of plea hearing and the other proceeded to trial and he was dealt with for different charges.
61 However, it is agreed that you were the principal offender who instigated the violence and you inflicted real violence with real consequences to the victims.
62 It is acknowledged that you caused significant harm and that you now understand the consequences of your actions.
63 Overall, I consider that you are genuinely remorseful and that is evidenced in the way in which you have conducted yourself in the Koori Court sentencing conversation.
64 You have now taken very real steps towards rehabilitation and have demonstrated through not only your words but also your conduct that you are committed to a more lawful lifestyle now and into the future.
65 Insofar as disposition was concerned, Ms Thompson sought a wholly suspended sentence or, in the alternative, a Community Correction Order so that you could continue to remain in the community and continue with your rehabilitation whilst being supervised. She emphasised the punitive and rehabilitative functions of a Community Correction Order.
66 Mr Trotman on behalf of the prosecution indicated that this was particularly grave offending and a bad example of this sort of offending. He accepted that the offending was in company with all three men being involved. It was an unprovoked violent attack and serious injuries were suffered by Mr West. He noted that there was a delay of two years not attributable to any acts on your part and that following your arrest and imprisonment in Western Australia there has been significant progress in your rehabilitation. He acknowledged the utility of your plea, the fact that you were a youthful offender at that time and he also confirmed that a wholly suspended sentence was open having regard to the date of the offending.
67 His submission insofar as disposition was that just punishment and the need to emphasise general and specific deterrence meant that a partially suspended term of imprisonment would be an appropriate disposition.
68 His Honour Judge Bourke sentenced Jai Shore. He did have some prior criminal history but nothing of great relevance. Mr Paisley was only dealt with in respect to one charge of recklessly cause serious injury.
69 There are real differences between each individual involved in this criminal offending. However, having regard to the particular circumstances of your case and the features that have been highlighted, namely the real utility in your plea of guilty, the delay in prosecution that was not attributable to any acts on your part, the real progress that you have made following your release from prison on parole and your current stable circumstances, your sobriety, your commitment to maintaining your rehabilitation and your current employment are all factors which militate against a term of imprisonment being imposed which needs to be immediately served.
70 All in all, I have decided that a wholly suspended sentence will be imposed. A suspended sentence can still be regarded as a sentence of imprisonment and it is still very significant punishment and ought not be seen as a soft option. In the past it has been recognised it can serve the function of general deterrence and such a sentence might be imposed because a judge considers that it offers the greatest prospect of reformation and in turn, the protection of society.
71 I am satisfied that a term of imprisonment is appropriate for the charges that you have been charged with. It is not an unconditional release nor a mere exercise in leniency but it is an order that I am making in the community's interest and it is designed generally to prevent reoffending. You must understand if you were to breach the wholly suspended term of imprisonment that you would be brought back before me in respect to the breach and be dealt with and, absent exceptional circumstances, you would expect to serve the three years' imprisonment. This is being done because I do consider that you ought have the benefit of the special opportunity to reform, to rebuild your life and to make recompense for the wrong that you did on this occasion. Your genuine participation in the Koori Court sentencing conversation is another powerful mitigating factor.
72 I will ask you to stand now please, Mr Harrison, and I will announce the formal orders.
73 In respect to the one charge of causing serious injury recklessly and the two charges of common assault, you will be convicted and sentenced to 3 years’ imprisonment to be wholly suspended with the operational period being three years.
74 I make the following declaration pursuant to s.6AAA: but for your plea of guilty, I would have imposed a term of imprisonment of 5 years to serve 3 years before being eligible for parole.
75 Finally I make the order for the forensic sample pursuant to s.464ZF of the Crimes Act 1958. I note that the making of the order was not opposed and I consider the granting of the order is in the interests of the public. I have had regard to the seriousness of the circumstances of the offending and your prior criminal history and I consider that each of those factors warrant the making of the order.
76 I have signed those orders and the only thing I need to tell you about that, Mr Harrison, is that you will be required to attend the Echuca police station to provide a forensic sample. You will be given a little cotton bud to put inside your mouth, you scrape it and provided you do that, it is all you need to do. In the event that you do not do it, then I have to tell you that police can use reasonable force to enable the procedure to be conducted and that can be done by way of blood sample.
77 All right, I will sign those orders. I don't think there's any other ancillary orders, is there, Mr Roper?
78 MR ROPER: No, Your Honour, although I was just discussing with my friend, I think there may need to be a declaration for one – for one day that was - - -
79 HER HONOUR: Sorry?
80 MR ROPER: There was a day in detention prison - - -
81 HER HONOUR: Yes, look, I'll make a notation on the record that there was a day but I'm not going to declare it.
82 MR ROPER: Yes.
83 HER HONOUR: Because it's not required to be served. Thank you for your assistance, Ms Thompson. Mr Harrison can be released from the dock now. All right, so all the best, Mr Harrison. You've got the rest of your future ahead of you. I think you've found out the hard way what happens when people commit these sorts of offences. Hopefully for the future it won't be an issue for you. All the best for you and your family.
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