Director of Public Prosecutions v Harrison

[2016] VCC 241

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00759

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANK HARRISON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 March 2016
CASE MAY BE CITED AS:	DPP v Harrison
MEDIUM NEUTRAL CITATION:	[2016] VCC 241

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Bhai
For the Offender	Mr P. Teo

HER HONOUR: 

1The situation as it now stands is that Mr Harrison has abandoned his appeal against an 18 month sentence of imprisonment with a minimum term of six months, which was handed down by the Dandenong Magistrates' Court, on
18 December 2015, for charges including unlicensed driving, trafficking methylamphetamine, trafficking cannabis, dealing with property suspected of being proceeds of crime, carrying a prohibited weapon without exemption and a host of other charges, including committing an indictable offence whilst on bail, cultivating a narcotic plant, possessing ecstasy, possessing methylamphetamine and failing an oral fluid test within three hours of driving and possessing cartridge ammunition without a licence or permit, as well as two charges of essentially false use of number plates.

2This sentence was handed down in relation to offending that occurred essentially between about February and October of 2015.  On 6 August 2015, I placed Mr Harrison on a community corrections order for a period of
24 months with conditions to undertake unpaid community work, treatment and rehabilitation for drugs and treatment and rehabilitation for mental health difficulties.

3Clearly the offending for which you, Mr Harrison, were dealt with by the Dandenong Magistrates' Court in December breached the community corrections order which I handed down in respect of charges of aggravated burglary, armed robbery, common law assault and intentionally cause injury.  The fact scenario relating to that offending is contained in my sentencing remarks of that date which I annex to these sentencing remarks.  However, in brief compass you, with a co-accused on that occasion, broke into a house where you assaulted the inmates on the basis that they had been supplying amphetamine to your son, Luke, who had suffered a psychotic reaction which was still evident at the time of the plea in that matter.

4It appears from the community corrections report that for a while you abided quite well by the community corrections order, were self-reporting insofar as using methylamphetamine was concerned.  You were already, even in the period before you began re-offending, clocking up a number of unacceptable absences from the rehabilitative programs that had been ordered and you had sought to excuse yourself from unpaid community work on medical grounds for which you failed ever to ultimately produce documentation.

5Your counsel informed me that essentially you gave up hope after you were apprehended in February 2015, entering court and on being searched, methylamphetamine being discovered on your person.  The offending included regular attendance at a petrol station on hours overnight where you were selling methylamphetamine. 

6To say I was not impressed by your efforts is a complete understatement.  You very wisely, in my view, abandoned your appeal against the sentence you received in the Magistrates' Court which, in my view, was extremely lenient.  You have a long history of criminal offending and opportunities afforded to you by the courts by way of community-based orders and community corrections orders, all of which you have breached, not the least of which was the community corrections order which I imposed in August 2014.  On that occasion, Mr Harrison, I made it extremely clear that if you were brought back before me for breach of the conditions of your order, I would gaol you, and this I propose to do. 

7Notwithstanding the efforts by your counsel in putting forth what he said your position of complete loss of hope once you were apprehended for offending in February 2015, which I found to be an inadequate explanation for the escalation of offending that then occurred, what is particularly galling, as far as I am concerned, is that you were afforded an opportunity by this court in August 2014 because you were the sole carer for two children who are in their late teens and because it would appear that whilst the offending was serious it was done in response to someone pushing drugs on your then 16 year old son.  Lo and behold, Mr Harrison, you appear before me on multiple occasions of you doing precisely the same thing to other people's children.

8It would seem since you were gaoled, about 100 days ago roughly, you have progressed reasonably well.  The elders in their conversation with you around the table urged that you explore your Koori heritage, your aboriginality.  It is extremely important, in my view, that you do find some identity in your life. 
I do not propose to rehash the circumstances of your life which are outlined in the annexed sentencing remarks I have already referred to.

9In my view, for the protection of the community, it is imperative that I deal with you by way of a sentence of imprisonment to be immediately served.  This will leave your children, who are apparently now at the ages of 16 and 18, both of them suffering mental health difficulties, including epilepsy, on their own.  They were at one stage living with your mother, but they are apparently now living on their own.

10You seem to have got yourself off drugs whilst you are in gaol and this is very much to your credit, but there can be no reason at all that I can see for dealing with you in any other way than by a further term of imprisonment. 

11I make this remark very specifically to the sentencing authorities.  In brief compass you were assessed on the plea, in the matter before me in 2014, by a psychologist as suffering post-traumatic stress disorder and a major depressive disorder.  There was not found to be any direct correlation between those conditions and the offending on that occasion.  However, it seems to me imperative that you are placed on a proper medication regime.  You need to be on a regime of antidepressant medication for you to reach the stage where you can take the proactive measures that you very much need, to turn your life around and be the sort of father you want to be to your children and to obtain the sort of employment that at the moment simply remains a pipe dream for you.

12I am going to ensure that my sentencing remarks, together with my previous sentencing remarks are forwarded to the prison authorities.  It seems to me extremely important: 

(1)       That you are put in contact with, (although you can perfectly well do this yourself), the Aboriginal Welfare Officer at Fulham, where hopefully you will be returned; and

(2)       As I have said you are placed on a therapeutic regime of antidepressant medication without delay.

13In all the circumstances, however, your complete failure to abide properly by any of the conditions, in particular the condition prohibiting re-offending whilst on the order, have led me, as I have said, to decide that you should be sentenced again in relation to that very serious offending, aggravated burglary and armed robbery, having maximum terms of imprisonment of 25 years; common assault, having a maximum penalty of five years; and intentionally causing injury, a maximum penalty of 15 years.  At least two of those offences are very high on the sentencing calendar. 

14Have I got that wrong, Ms Bhai?

15MS BHAI:  Ten years for the intentionally cause injury, Your Honour.

16HER HONOUR:  Yes.  It is ten years, not 15, I apologise.

17In all the circumstances, I propose to hand down an aggregate sentence. 
All the offending arose from the same incident. 

18In relation to the breach of community corrections order, you are to be sentenced to three months' imprisonment.

19In relation to the other charges, I am sentencing you to a term of imprisonment of three years and I am going to order that you serve a minimum term of 12 months.

20Pursuant to s.14(1) of the Sentencing Act, I must now fix a new non-parole period in respect of all the sentences you are to serve.  I declare that the new minimum parole period will be 18 months.  I declare that - how many days is it now?

21MS BHAI:  Your Honour, 132 days from the offending on the appeal matter until today and there was 79 days that he served prior to being placed on a CCO before Your Honour.

22HER HONOUR:  How much was it, 100 and?

23MS BHAI:  In total it is 211 days, which is 130 days from when he was arrested finally on the appeal matters and today, so he has been in custody for the last 132 days and he had served 79 days prior to being placed on the CCO by Your Honour.

24HER HONOUR:  Very well.  I declare that 211 days of the sentence has already been served by way of pre-sentence detention.  Does that satisfactorily answer the requirements of s.14, Ms Bhai?

25MS BHAI:  Just in regards to the requirements of s.14, if Your Honour makes it clear whether Your Honour is setting a new non-parole period of 18 months from today, or 18 months ‑ ‑ ‑

26HER HONOUR:  I am declaring that it is 18 months from today with the pre-sentence detention of 211 days.

27MS BHAI:  Yes, Your Honour.

28HER HONOUR:  I think that answers it, so it is a three year term with a new non-parole period of 18 months.  That effectively means that I have cumulated the minimum term imposed by the Magistrates' Court in December of last year and the minimum term I have imposed in relation to the sentencing today.  The three month community corrections order is to be served concurrently and I am doing so deliberately. 

29In my view there is no correlation between the offending that you engaged in after being placed on the community corrections order and the original offending and, in my view, the minimum term was extremely generous insofar as the magistrate is concerned.  As a whole, when you combine the offences for which I have now resentenced you and the matters for which you re-offended, it seems to me that 18 months' imprisonment is appropriate and, indeed, it is to some extent on the lenient side. 

30I am very concerned, the gaol authorities need to attend to your mental health difficulties.  You need a regime of antidepressant medication.  You present, you have got a major depressive disorder.  I had some concerns last time about the rather apathetic way that you presented, which in my view, amateur view though it is, was consistent with the diagnosis of the psychologist at the time and, in my view, that needs to be attended to immediately.  That is something you could try and initiate yourself, Mr Harrison, but I am probably trying to give you a bit of a kick on with that by making the point that in my view that is something that needs to be attended to without delay.  All right.

31OFFENDER:  All right.

32HER HONOUR:  Thank you.  Had you not pleaded guilty to the breach, I would have sentenced you to a term of imprisonment of four years with a minimum term of two years. 

33Thank you.  All right.  Get your life together, Mr Harrison, this has been going on for far too long, it is ridiculous.

34OFFENDER:  Is that three years and plus the 18 months as well?

35HER HONOUR:  No.  You are getting three years and there is a minimum term of 18 months, of which you have already served 211 days.

36OFFENDER:  Yes.

37HER HONOUR:  You have not got that long to go, that is if you are granted parole.  You may not be granted parole.  You need to get busy.  Gaol, and I hate saying this, gaol is proving, in my view, to actually be of benefit to you, it has got structure, you are not using and you are working.  I note that you are working as a billet and you have got a medium classification, which is not brilliant but it could be worse, and you need to get on with your life.  Thank you.

38I think that is all I need to attend to, is that right, Ms Bhai?

39MS BHAI:  Yes, thank you.

40HER HONOUR:  Yes, thank you.  We will stand down.

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