Director of Public Prosecutions v Harrison

[2017] VCC 855

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01224

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAM HARRISON

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 June 2017
CASE MAY BE CITED AS:	DPP v Harrison
MEDIUM NEUTRAL CITATION:	[2017] VCC 855

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke
For the Accused	Mr R. Thyssen	Ms K. Moloney

HIS HONOUR:

1Sam Harrison, you have pleaded guilty to six charges of causing injury intentionally, one charge of common assault, two summary charges of assault with a weapon and one summary charge of fail to answer bail.

2The facts of the matter are set out in the summary of the prosecution, Exhibit 1.  It is not disputed by your counsel; I will not go into any great detail in the facts.  Any reader of these reasons can refer to that exhibit to place the sentences in their factual context.

3Briefly stated, the offending involved assaults upon your two daughters; Gemma who at the time of the offences was aged between seven and 12, and Krystal and at the time of the offences she was 11 years of age.

4Charge 1 involves an incident where you hit Gemma in the head with the end of a toilet brush and she sustained a 2 centimetre laceration to her head.  Charge 4 involves you slapping her to the face, that is Gemma, with the back of your hand and hitting her ribs with a golf club and punching and kicking her.  You threw her onto a couch causing her to hit her head on a wooden bar, breaking the wood.  Charge 5 involves you striking her to the face with your hand, kicking her and using a golf club to strike her body.

5Interestingly after that Gemma told a teacher she had fallen in her bedroom and crashed into her desk.  This is a pattern common to these charges where Gemma has to make up a story to account for injuries.

6Charge 6 involves you slapping and hitting her with a golf club and a black rubber stripping from a car, you also kicked her.  She told a teacher that on the way to school her laces got caught in her bike chain and she had an accident on the bike.  Charge 7 involved you slapping her, hitting her with a golf club and kicking her.  You also made her stand in a cold shower with her clothes on.

7Police attended on 4 June 2015 to conduct a welfare check.  Gemma told police who had observed bruising on her face that she was self-harming.  Police found a note written by Gemma that you told police you kept the note as protection if the police were to investigate.  In the note Gemma says she caused the bruises to her face and wanted her father's trust.

8Charge 10, that is the summary charge with a weapon, involves you making her remain in a car while you cooked dinner and when she came inside you hit her with a golf club.  Charge 11, a charge of assault with a weapon, involves you in a car trip, pulling the car over to the side of the road, picking up a tree branch, breaking it into bits to form a stick and then later getting out of the car and hitting Gemma on the buttocks with the stick.

9In relation to Krystal, Charge 2, involved you giving her what is called a clip over the ear and Charge 3 you forced her into a cold shower fully clothed and struck her to the stomach with an open hand twice while she was in the shower and this caused Krystal to sustain bruising to the stomach area and feeling pain.

10The summary offence of fail to answer bail relates to you failing to answer bail on 21 October 2015.

11You admitted your criminal history which, amongst other matters, involves four convictions for assault type offences.  The victim impact statement of Gemma was supplied to the court and in that she movingly sets out the effect that your behaviour has had upon her.  I will make some further remarks about that later.  I take its contents into account.

12The prosecutor submitted that this was protracted offending and involved a gross breach of trust.  I agree with both of those submissions.

13A contested committal was held at which both complainants were cross-examined about the incident.  The matter was listed for trial at the Horsham sittings on 6 February of this year.  The matter with Krystal was resolved on
3 February of this year and Gemma on 9 February this year.  The prosecutor informed me that no offers of settlement had been made prior to this.  In these circumstances your pleas of guilty were entered at a relatively late stage.

14In mitigation, your counsel, Mr Thyssen, pointed to the following matters,
(1) you have had sole responsibility for the care of the children as your estranged wife was in gaol for armed robbery, she also had a substantial drug habit; (2) he pointed to the dysfunctional family background; (3) he pointed to your poor upbringing; (4) your drug usage and pointed to the fact that four times you had made serious efforts at rehabilitating yourself; (5) your plea of guilty; (6) he submitted did not have a lengthy criminal record; (7) you accepted that your behaviour was wrong; (8) he submitted that you were unlikely to reoffend and (9) he tendered a report from psychologist, Warren Simmons, dated
28 February 2017.

15In that report Mr Simmons said you impressed as being of average intelligence, he set out your family background in which your father was a stern disciplinarian in that he would use items such as a strap and a duster to administer corporal punishment.  You had a closer relationship with your mother.  Your father also had problems with alcohol.

16You left home at the age of 15.  You attended school until Year 9, that is at Warracknabeal, you then went to Wangaratta High where you were expelled so your schooling successfully finished at Year 9.  Thereafter you spent a lot of time on the streets and then travelled around Australia working at different jobs.

17Mr Thyssen told me in recent times you have had jobs as a service station cook and previous to that you had been involved in other occupations.  You have recently taken up playing football again.  You have been living with your grandmother in Mildura. Your grandfather is in a nursing home.

18Mr Simmons set out the relationship you had with the mother of the two young girls, you had been with her for about 13 years, you were married.  Both of you had drug problems and criminal behaviour problems.  The relationship ended in 2010.  He set out your drug and alcohol history; you began using cannabis at the age of 14 and amphetamine at the age of 18.  At the age of 20 you began using morphine.

19You have made a number of attempts at rehabilitation; most recently at a residential rehabilitation place called Team Challenge, a place that you have been to before.

20In relation to your attitude to your current offending you told Mr Simmons that you would now have done things differently.  At the time you had the idea in your head that physical discipline was the only way to handle children's behaviour however you now believe that is no longer appropriate.

21In his opinion he said that your father had problems with chronic alcohol consumption and you had a very poor relationship with him.  You have battled with drugs over the years, although when you were taking care of your children you were able to address that issue.  He said your long term relationship with the mother of the children was extremely dysfunctional as both of you were spending time in gaol and using drugs.  You had a long history of involvement with the church.

22He opined that you displayed an attitude towards discipline that your father had shown to you.  This was the only type of parenting to which you had been exposed.  He said you now appear to understand that your behaviour was not appropriate and he suggested that you would benefit from ongoing drug and alcohol counselling.

23I have taken all those factors into account, I have looked at the summaries of sentencing statistics and cases in relation to intentionally cause injury to consider the issue of current sentencing practices in line with the pronouncements by the superior courts as to how I should consider that.  The basis purposes for which a court may impose a sentence are punishment, general deterrence, both specific and general rehabilitation, denunciation and protection of the community.

24In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, offenders are rehabilitated into society.  I express my denunciation of the behaviour.

25In this case because of your criminal history, specific deterrence has a role to play but in a society that seemingly cannot understand that children must be protected by their parents, general deterrence is a paramount sentencing consideration.

26I agree with Mr Simmons that this was a dysfunctional family; both you and your wife's upbringing of these two children could only be described as appalling.  They have no role models except you and your wife, both drug users, both engaging in criminal activity and you engaging in the behaviour that I am about to sentence you for.  Parents are entrusted with the safety of their children and your behaviour here grossly breached that trust. 

27Parents are supposed to be mature, responsible people.  No matter the fact that your father may have treated you in a similar fashion, that in no way excuses your behaviour here.  Some of your behaviour almost borders on the description of being sadistic.

28Violence against children must simply cease and courts must send a message to the community and those who want to inflict violence on children that it will not be tolerated.

29In mitigation I take into account your plea of guilty which is an acceptance of responsibility by you for your behaviour and has saved the court the time and expense of a jury trial, taking into account your background, the fact that you have accepted responsibility and seem to understand why your behaviour is wrong.

30As for your prospects of rehabilitation, that can only be assisted if you do something about your drug problem and what would seem to be, at the very least, an anger management problem.  Your behaviour here is not a parent's isolated, spontaneous anger reaction to an incident.  It is protracted offending against two young children.  The children have lost the innocence of youth.  One wonders what will happen to them given their upbringing.  They are at the moment in the care of DHS and one can only hope that they are somehow put into a situation where they have caring and loving people looking after them.

31I impose the following sentences.  In relation to Charges 1, 4, 5, 6 and 7
I impose a sentence of three years, that is an aggregate sentence.  In relation to Charges 2 and 3 I impose an aggregate sentence of nine months.  Three months of that sentence will be cumulative upon all other sentences imposed today.  In relation to Charges 10 and 11 I impose an aggregate sentence of nine months, that is concurrent with all sentences imposed today.  In relation to the summary charge of fail to answer bail I impose a sentence of one month, that is concurrent with all sentences imposed today.

32This makes a total effective sentence of three years and three months. I declare that you should serve a period of two years and three months before becoming eligible for parole. I declare pursuant to s.6AAA of the Sentencing Act that if you had proceeded to trial and you were convicted by a jury I would have sentenced you to at least six years with a non-parole period of four.

33I declare that one day that you have already served to be reckoned as part of the term of imprisonment I have just imposed pursuant to s.18(1) of the Sentencing Act. The aggregate sentences I have imposed because in my view they accord with the requirements of s.9(1) of the Sentencing Act.  I have already made the other orders.

34Are there any other matters I need to consider?

35COUNSEL:  No, Your Honour.

36HIS HONOUR:  Thank you, Mr Harrison, you may leave.  Thank you,
Mr Moloney, you are excused.

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