Director of Public Prosecutions v Harrison

[2015] VCC 1511

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

AT MELBOURNE

CRIMINAL DIVISION

CR-15-00272, CR-15-00172, CR-15-00274, CR-15-00536

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEREMY HARRISON, NICHOLAS HARRISON, JAMIE McCUMBER, NEJMIYE MILLAR

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JUDGE:	MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 September 2015
CASE MAY BE CITED AS:	DPP v Harrison and Ors
MEDIUM NEUTRAL CITATION:	[2015 VCC 1511

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Ginsbourg (Plea) Mr M Hannan (Sentence)	Office of Public Prosecutions
For the Accused J Harrison	Mr R Dekrester	James Dowsley & Associates
For the Accused N Harrison	Mr G Chisholm	Balmer & Associates
For the Accused McCumber	Mr M. McGrath	Michael Brugman Solicitors
For the Accused Millar	Ms G. Morgan	Stary Norton Halphen

HIS HONOUR:  

1       All the accused can remain seated.  Nejmiye Millar, Jamie McCumber, Nicholas Harrison and Jeremy Harrison, you have all pleaded guilty to charges of false imprisonment, armed robbery and blackmail.  You, Nicholas Harrison and Jeremy Harrison also pleaded guilty to connected charges of obtaining property by deception.  You, Nicholas Harrison, pleaded guilty to the summary offences of driving while unlicensed and committing offences while on bail.  You, Jeremy Harrison, have pleaded guilty to a summary offence of resisting police who were trying to arrest you. 

2       The circumstances that give rise to these offences were set out in agreed summary of facts tendered on the plea.  On 29 September 2019, the victim in this matter drove from his home in Melbourne to Geelong to meet a woman he had been communicating with on an Internet dating site.  He met this woman and stayed in Geelong for that night.  The next day the victim communicated with you, Ms Millar, about arranging to meet up in Geelong.  He had also been communicating with you, Ms Millar, on the Internet dating site. 

3       You met up with the victim and then drove to your address in Helms Street, Newcomb.  The two of you engaged in sexual intercourse before going shopping, the victim then left to see other people.  It was 1.30 am the following morning, which is by now 1 October 2014 when the victim contacted you again, Ms Millar, asking you if you were still awake.  You said that you were and then invited him to come to your address.  He replied, he would be there by 3 am. 

4       You, Ms Millar, then contacted an associate of yours, Jamie McCumber, to tell him that the victim was coming around at about 3 am, that the victim had money and the drug, ice.  It was discussed and decided that McCumber would come around.  Nicholas Harrison and Jeremy Harrison, you were both at McCumber's house at the time, it was agreed all would come round to Millar's address and await the arrival of the victim and there, at least, rob him of money. 

5       The victim drove his Mini Minor car to your address, Ms Millar, in Helms Street, Newcomb.   You told him where to park and then he entered the unit, walked into the kitchen.  There is not a shadow of a doubt he was only expecting you to be there.  When he moved into the kitchen area, you three males then came from within the premises and confronted him.  You, McCumber, were armed with a large kitchen knife you had got from Ms Millar's knife block.  You, Nicholas Harrison, were armed with a wooden baseball bat and Jeremy Harrison, you were unarmed.

6       Understandably, the victim was immediately scared for his safety.  You, McCumber, intensified his fear by telling him that he was: 

"Going to pay for sleeping with someone's partner, who is in gaol."

7       As it turned out, this was not precisely accurate in that Ms Millar did not have a partner who was in gaol but that is not the point.  In fact, you and Ms Millar had access to a bank account of a man who is in gaol and who is a friend or had shared a gaol cell with you, Mr McCumber.  The suggestion made that someone was going to have to pay for sleeping with the partner of someone who is in gaol only has to be said, for its terrifying nature to be understood. 

8       Having been confronted by all of you, together with these threats and the weapons, the victim immediately handed over the cash that he had in his pocket, being $145.  He also handed over car keys.  He was then pushed onto the couch by you, Jeremy Harrison, while you, Nicholas Harrison, went through his backpack and found his iPhone.  You, Jeremy Harrison, told him to further empty his pockets and you then took his other iPhone.  You, McCumber, asked where his wallet was and he said that he had left it at home, which was not true.  Rather, it had been left in the car.  You, McCumber, showed your aggression by hitting the victim across the face with an open palm, telling him that he was not to,

"Fucking lie to us, that's how you'll get hurt." 

9       You, Jeremy Harrison and you, Nicholas Harrison and you, Ms Millar, went out and searched the car and returned with the wallet, and when the victim said that there would be $300 in it, he was punched by you, Jeremy Harrison, and told not to lie again.  Then you, Mr McCumber, went through the wallet which contained $350 and a number of bankcards, including credit cards.  You, McCumber, then demanded that the victim provide the PIN numbers for the cards.  The victim, fearing for himself and believing he had no other choice, provided the PIN numbers.  He was told, if he got any of the numbers wrong, he would get hurt.  When he could not remember one of the PIN numbers for one of the five cards, you, McCumber, hit him with an open palm to the face.  He was interrogated about what amounts were in the bank accounts.

10      You, McCumber and you, Nicholas Harrison, then left, driving the victim's car to an ATM nearby, where the records of the bank show that $970 was withdrawn.  Other attempts to withdraw further money and make balance enquiries occurred at that time.  After a short time, McCumber and Nicholas Harrison returned to the unit and the victim was further interrogated about his bank accounts.  It was discovered that he had access to a mortgage account with $38,000 in available funds.

11      You, Nicholas Harrison, gave the victim's phone back to him and told him to log onto his Internet banking and transfer money to an account in the name of Robert Duggan and the account details were provided.  It was said that Millar was, at the time, in a relationship with Duggan, the man in prison.  You, Millar, had Duggan's bank details for some reason or other.  By now, almost an hour had passed since the victim was bailed up.  He did transfer $2000 from his mortgage account to the account of Duggan.  You, McCumber, then realised that the account had a $10,000 limit and became angry as to why the victim had not transferred another $8000.

12      While all this electronic transferring was being undertaken, you, Nicholas Harrison and you, Jeremy Harrison, left in the victim's car, to the ATM in Newcomb where you attempted to withdraw $2100 from a credit card.  Because you were unsuccessful you telephoned McCumber to say as much and to have McCumber tell the victim that he had got one of the PIN numbers wrong.  In doing this, McCumber slapped the victim to the face and picked up the knife, waving it in a threatening manner, saying to the victim: 

"The sooner you get this right, the sooner you'll be safe." 

13      The victim was desperately struggling to recall all the right numbers.  In the face of this, you, McCumber, in an agitated way said to him: 

"It's time to use the knife." 

14      As a consequence of the PIN number being incorrect for the credit card, it was swallowed up by the machine and the Harrison brothers came back to the unit.  Once all four accused were together again in the unit, you, Millar said: 

"Fuck this guy, do what you want to him." 

15      Again, this was a terrifying thing for the victim to have heard.  You then discussed hogtying the victim.  He was pushed down a corridor to a bathroom and told to get into an empty bath.  Whilst he was in the bath, you, Millar, referred to him as a little boy and said: 

"We're going to dress you up." 

16      This was humiliating behaviour.  You then pushed a pair of children's socks into the victim's mouth and tied a scarf over his mouth.  You then put a sleeping mask over his eyes.  In further frightening conduct, you, Ms Millar, put a pillow sheet over his head.  You, Jeremy Harrison, then endeavoured to tie the victim's wrists to his ankles but it could not be achieved.  The victim was then stood up, still with his head and mouth covered, and pushed back into the lounge room, being hit as he went. 

17      You, Millar, then went to the ATM at the Newcomb shopping centre to see if electronic transfers had placed money into Duggan's account.  When you returned from the ATM you said: 

"I don't think this cunt has transferred the money." 

18      The victim was still in the lounge on the couch, with the pillow case and the eye covers and socks in his mouth were removed.  He was told by you, McCumber, to go through his bank details again, and then in the words of the victim, he said that he was:

"Given the biggest open palm to the left side of my head, that I've ever felt." 

19      He said he nearly passed out with this hit and began seeing stars.  Shortly after, you, Millar, took the victim's phone from Nicholas Harrison and forced the victim to log onto his Internet banking and then you, yourself, conducted a number of electronic transfers, transferring a total of $8211 into Duggan's account.  This brought the transfers into Duggan's account to $10,211.  The total moneys stolen from victim was $11,676, being $495 cash from him, $970 from the ATM at the Newcomb shopping centre and the $10,211 transferred electronically into the Duggan account. 

20      If this was not enough, all you males told the victim to sit on a sofa chair.  He was then given an ice pipe and lighter and told to light it and hold two small plastic ziplock bags containing the drug, ice.  You, Jeremy, and you, Nicholas Harrison, took photos of the victim on your mobile phones telling him it was: 

"For insurance purposes." 

21      If the victim ever went to the police or told anyone about what had gone on.  He was told the photographs would be sent to the hospitals employing him and his family would get hurt.  This conduct amounted to the offence of blackmail committed by each of you.  There was more to it, with respect to you, Nicholas Harrison, when later the next day you forced the victim to write various notes on pieces of paper saying that he was signing over his car to you, Nicholas Harrison. 

22      At this point, nearly two hours had passed and you, Millar, went off to an ATM to make enquiries of Duggan's account and attempted to withdraw money.  Then, by 5.30 in the morning, you, McCumber and Millar, left the unit and drove the Mini Minor to a Kmart store in Belmont, where over the course of an hour, you, Millar, using funds that had been obtained from the victim, went on what was called a shopping spree.  Many of the items you purchased were later seized by the police at your address. 

23      At a later point, telephone calls were made to the Westpac Bank to discover whether Internet transfers had gone through to the account of Duggan.  You, McCumber, told the victim that if the transactions went through by the afternoon then he could go home safely to his family.  All this occurred between 7.30 and 8 o'clock in the morning, some five hours now since the victim had been imprisoned by you offenders.  At around 8 o'clock, you, Jeremy and you, Nicholas Harrison, took the victim's car and yourselves went to the Kmart, purchasing small items with the payWave credit card that you had taken from the victim.  This amounted to the obtaining property by deception charges for the two of you. 

24      You, Mr McCumber and then you, Millar, the left the address around 10 am and went to the ATM in Newcomb, withdrawing $1000 from the Duggan account and then drove to Werribee where further withdrawals were made from the Duggan account, and then returned to Geelong where other withdrawals were made from the Duggan account at around 12.30 pm.  All the while the victim was still held captive in the unit, held there by you, Nicholas, and you, Jeremy Harrison.  At this time the victim says that not a great deal happened, and in fact by this time both you young men, realising the gravity of what you had done, were being kinder to the victim, giving him water, a jumper and allowing him to take his medication. 

25      It was at this time though that you, Nicholas Harrison, engaged with the victim to get him to write the notes that said that he transferred or signed over his car to you.  At around this time both you Harrison brothers were getting angrier at Millar and McCumber for being away and not replying to text messages.  At 1.45 you told the victim that you had waited long enough and both you men were going to leave.  You asked the victim what he was going to do, he said he would stay because he was worried about the safety of his family if he ran, believing Millar and McCumber would come back and they had such details of his address, taken from his licence.  You, Jeremy Harrison, said to the victim: 

"Can I make a suggestion?  I think it's best to go." 

26      At 2 pm, some 11 hours after the ordeal commenced, you Harrison brothers left and shortly thereafter the victim also left, making his way to a nursing home where a taxi was called and then he got himself back to Melbourne.  He reported the incident to the police at Heidelberg.  There was little else the victim could do except inform his wife of this bizarre, frightening incident and as a consequence the family left their home address and have not returned. 

27      The victim was extremely traumatised as borne out in his victim impact statement which I will turn to shortly.  Although each of you were complicit in all that went on in that unit, the victim does make it clear that you, McCumber, being described as the guy with the knife, were the most aggressive and had frightening mood swings.  Prosecution contends that it was you, Millar and you, McCumber, that were calling the shots.  The younger Harrison brothers were involved, as I have set out, and providing frightening backup to the others and adding to the victim's fear.  You, Ms Millar, and you, Jeremy Harrison were arrested the same day, with you, Jeremy Harrison, resisting the police when they came to arrest you.  You, Jeremy Harrison, made partial admissions saying that you could not remember much of it because of your use of ice. 

28      You, Ms Millar, denied your involvement saying, you were not at the address, plainly a lie.  Some days later, you, Nicholas Harrison, were arrested in Newcomb.  After your arrest you made full admissions to what had happened, stating, "The matter got out of control the longer it went along."  Ultimately resulting in you and your brother letting the victim go.  Six weeks later you, Jamie McCumber were arrested and said nothing to the police upon being interviewed. 

29      As required by the Sentencing Act I must consider the gravity of the offending.  This was a protracted and frightening ordeal.  In relation to trapping someone who had come over to engage in sex, this was a serious example of that sort of offending. 

30      To be held captive for 11 hours without any sense of how the ordeal was to end is extremely frightening, it is false imprisonment of a grave kind.  The violence and aggression involved adds to the gravity.  The weapons that were wielded, likewise add to the gravity, they convert the stealing of the property to an armed robbery.  The extraction of PIN numbers and then forcing the victim to electronically transfer significant sums of money from a mortgage account to another account reveals how persistent you all were. 

31      Having a man you knew held a responsible job, being photographed with an ice pipe so as you would have insurance against him going to the police and making threats to his family is both cruel and serious blackmail.  I do note that the victim did have and use ice at an earlier point when he was with Ms Millar for sex. 

32      The impact on the victim is also a matter I take into account by reason of the provisions of the Sentencing Act but it also adds to the gravity of the offending.  In your case in particular, Mr McCumber, but also in yours, Nicholas Harrison, the fact that you have significant prior convictions also adds to the gravity of this crime.  I will deal with each of your prior criminal histories shortly.

33      Nothing was put forward that would diminish your moral culpability.  For each of you, your moral culpability in these offences is high.  I take into account the immaturity of you, Nicholas Harrison, and to a degree, you, Jeremy Harrison, becoming involved in this criminal offending by reason of you being at McCumber's house at the time he was called by Millar.  Also in that regard I take into account how you better treated the victim for the morning and early afternoon of 1 October, and finally let him go and encouraged him to leave.

34      Each of you has pleaded guilty at an early time through February and March of 2015.  Each of you has been in custody since your arrest.  I will deal with what you have done while in custody, shortly.  As I have said, it is necessary to consider the impact of your crime on the victim.  In his victim impact statement the victim emphasised the fear that he felt for his life during the course of the ordeal.  He also feared for those close to him, his wife and two children.  Not surprisingly, his sense of fear has persisted and he has experienced feeling unsafe, distressed and has become hypervigilant in circumstances where he would usually feel safe, such as at home or in his workplace.

35      He has undertaken regular psychiatric counsel and treatment for his trauma and consequential depression.  He had to take seven weeks off work due to his symptoms and fear and only returned to partial duties in January 2015.  He is not able to give to his work what he had been able to do at a high level, prior to it.  He found it significantly difficult to be the father to his two children, he finds it difficult to teach his children to be curious and open‑minded about the world that they grow up, rather he wants to teach them to be fearful and perhaps inward looking.  He knows that his family and friends are stressed as they worry about his health and welfare.  He misses the security and calmness that he valued prior to this ordeal and he is reminded daily how his life has changed since. 

36      As to the personal circumstances of each of you, a comprehensive plea is done by counsel on behalf of each of you, assisted me in knowing your backgrounds and prospects for the future.  Also, I have considered carefully the various psychological reports and other materials tendered. 

37      Dealing with you first, Mr McCumber.  You are now 32 years old.  You have a lengthy criminal history, though the offences that I have before me are far and away the most serious you have committed.  Since around the age of 18 you have been regularly before the courts for burglary, theft, theft of and from motor vehicles, driving offences and failing to answer your bail.  It was pointed out by your counsel, there was a break in your offending from 2006 to 2009.  It was in 2006 that you breached an intensive corrections order and required to serve 93 days in prison. 

38      You had, prior to this, received gaol terms, suspended sentences and youth training centre detention.  Your offending recommenced in early 2009, with further offences involving dishonesty and driving but now also including violence.  You received community based orders which you then breached.  There was a further break in offending from the end of 2011 until court appearances in July 2014.  At that point in July 2014 you were placed on a wholly suspended sentence.  You have breached that wholly suspended sentence by this offending. 

39      Your offending history is of real concern.  You are not to be re-punished for your past crimes but it leads me to a conclusion that your prospects of permanent reform are very guarded indeed.  Your personal circumstances were detailed by your counsel, Mr McGrath, in his written outline and supplemented by his oral submissions.  You relied upon a report of a psychologist, Mr Staos, dated 8 May 2015 though he corrected some significant errors in that report. 

40      Your parents separated when you were young, your father had trouble with the law and was, for a time, himself in custody.  After your parents separated you remained with your mother and went to Perth, returning around 1991 and moving ultimately to Portarlington and then back to Geelong.  This time you were made a ward of the state and moved around to different places under the care of MacKillop Family Services and the Department of Human Services. 

41      The difficulties you confronted, saw you placed in secure welfare in Melbourne.  As a consequence you have very little contact with your family, you were in state institutions for boys until the age of 14.  From about 14 to 16 you lived on the streets.  Despite this, you were able to attend for some time, a school in Geelong, most importantly at St. Augustine's School which had a specialist program for those who were struggling with mainstream education.  You achieved a year 10 level of education.  You found this time to be important to you.  You were at that stage living with your father in Corio, along with a brother.

42      You have worked in various unskilled jobs since school, including periods in Queensland.  Your use of cannabis and alcohol followed the example of your parents, from the age of about 13.  After leaving your father's home when you were about 17, you took to methylamphetamines and heroin.  You have been on a methadone program for your heroin problem in the past and have resumed this program since you have been in custody.

43      You were using methylamphetamines at the time of your offending.  You have developed a real sense in recent times, that you want to put the use of drugs behind you.  You are doing what you can in the prison to try and assist in that regard and that is to your credit.  In the period of time that I mentioned, between 2006 and 2009 it seems that you were stable, with a partner, having stable accommodation and employment.  You have separated from your former partner, a woman that you were with for about 12 years.  After you separated, you had the primary care of your daughter until just before this offending. 

44      You wish to remain part of your daughter's life but this has not been easy with you in custody, and you are taking steps to try and bring this about through family lawyers.  You have clean drug urine screens whilst you have been in remand.  You have been prescribed antidepressants while on remand.  Your psychological report indicated you have symptoms of depression and post‑traumatic stress disorder.  That said, no argument was put that any impaired mental functioning was relevant in any of the well‑known categories for mitigation as a consequence of impaired mental functioning. 

45      Of late, your time on remand has been especially hard due to the riots and the consequences of them.  I take that into account, in mitigation.  It is plain to me that your life has been one of emotional and material poverty.  That said, you have a concerning criminal history which requires some weight to be given to deterrence to you, and as I have said, your prospects of rehabilitation are not strong. 

46      Your early plea of guilty means the sentence I impose will be less than it otherwise would have been, it is some evidence of remorse.  I will return to other mitigatory matters that apply to all accused shortly.  Your counsel, however, conceded that imprisonment was the only option available but urge that a gaol term be added to a community corrections order, with all the prospect of punishment and rehabilitation done in the community and simultaneously that such an order a community corrections order entails.  I will return to this submission later.

47      Turning next to you, Nejmiye Millar.  You are 32 years old.  You do not have a significant criminal history though you have been before the court four times in the past, though, a real concern was that you were before the Geelong Magistrates' Court on 30 September 2014, pleading guilty to a theft and committing an offence on bail.  I understand that there are other matters that are yet to be resolved, but on 30 September 2014 you were placed on a nine‑month community corrections order, so it seems you committed these offences while on bail for other matters and on the very next day after receiving a community corrections order. 

48      You were raised in the suburbs of western Melbourne.  Your mother and father separated when you were 11.  You lived with your father thereafter, in Brisbane from 11 to 17.  Your father has reconnected with you, subsequent to your remand and has come from interstate to visit you, is intending to move to Victoria to set up home for you, on your release.  His role in providing you with support is a matter of real significance. 

49      Your education went to year 10 and was followed by a hairdressing apprenticeship and work as a hairdresser, followed by other work in hospitality, telephone customer servicing and house cleaning.  However, the most significant workload and commitment for you has been your children.  You have eight children from two significant relationships. 

50      First relationship commenced when you were 17 and ended when you were 21.  You had two children in that relationship and thus were a parent at a very young age.  The next relationship was one of about ten years, ending in early 2014.  Both your previous partners are of Aboriginal descent and thus you have connections to the local Wathaurong community in Geelong.  They have provided you with real assistance in relation to your physical and mental health. 

51      In May of 2013 all your children were removed by the Department of Human Services as a consequence of your use of methamphetamines and, it seems, your reluctance to proceed with criminal complaints against your husband for domestic violence.  It seems plain that you were the victim of domestic violence in both relationships.  All your children, the oldest is just 13 and the youngest, twins, just four, are in the care of the Department of Health and Human Services.  You are very keen to play a role in your children's future, and thus while in custody you have developed a keen motivation to reform so that you can have a chance of playing a role with your children. 

52      You have been assessed in 2006 with bipolar disorder type 2 but you have had little treatment or medication for it since 2006.  While in custody you have again been assessed and now are on antipsychotic medications, first, lorazepam and sodium valproate and now risperidone.  Your psychology state has stabilised.  You are involved in psychological treatment and you are compliant with your medications.  It was said that your impaired mental functioning means that your term of imprisonment will weigh more heavily upon you than if you were in good mental health.

53      Given, this is the first time that you have been in custody and given your criminal history, the first time would have been ever on the cards, that you would have been in custody.  I do consider that your impaired mental functioning, though well treated in the prison, makes things hard for you.  Although I see this as a mitigatory matter in your favour, I am also reassured to know that the medical officers at Dame Phyllis Frost are providing you with the most dedicated mental health assessment and treatment that you have ever had.  Your imprisonment has also otherwise been difficult as you were held in management due to other people being in prison, who have other connections to you. 

54      Notwithstanding this, you have done what you can in prison including working as a billet, attending counselling with specialists that assist those that have been victims of sexual assault, as you were in your teens.  Most importantly, this in combination with your involvement in the prison's domestic violence support group, which has given you a real insight in the need to ensure that you deal with the consequences of domestic violence.  You have done drug and alcohol programs and are a participant in the well-known Someone's Daughter theatre production. 

55      You pleaded guilty early and thus your sentence will be less than it otherwise would have been had you pleaded not guilty.  Your counsel conceded a term of imprisonment had to be imposed, and grave as that always is, there is no other option.  However, your counsel submitted that a term of imprisonment could be combined with a community corrections order and continue the punitive aspects of the sentence while in the community, but also provide a capacity to continue supervision and rehabilitative programs while you resettle and endeavour to reconnect with your children.  It was submitted that in the alternative, a nonparole period, a substantial, potential period of supervision was indicated.  I will return to those submissions shortly. 

56      Nicholas Harrison, I now turn to your personal circumstances.  You are currently 19 years of age, shortly to turn 20.  You were 18 years old at the time of your offending.  You are the younger brother of Jeremy Harrison.  Your parents separated when you were young.  You get on well, so it is said, with your father who is remarried and lives in Queensland.  You are estranged from your mother and have not spoken to her for the last three to five years.  Your recollection of your upbringing is not particularly strong.  You grew up mostly in Queensland; you went to many primary schools and, on your account, were often in trouble at school, resulting in suspensions and the like.

57      You came to Victoria from Queensland around the age of 13, to be with your mother.  You said it was fine at the outset but then she overdosed and things went badly thereafter.  It seems that you were placed in foster care, mostly separated from your older brother, Jeremy.  Though your schooling was significantly interrupted, you have had a number of short‑term jobs, though the most important is that you worked as  a boilermaker's apprentice for about three years.  This was a position that you enjoyed and it involved you travelling around parts of Australia.  The business ran out of work and you were put off it seems, just weeks from completing your apprenticeship.  This set you back and you have not worked much at all in the last number of years.

58      What seems very prominent in the last number of years is your regular attendance at courts for criminal offences.  I have counted 17 appearances at the Children's Court, from 13 August 2009 to 8 August 2013, with many offences for burglary and shop theft, driving and criminal damage.  However, there are more serious offences for armed robbery, recklessly cause injury, conduct endangering serious injury and threat to kill. 

59      In addition, you have three appearances at the Magistrates' Court including arson, burglary and contravening corrections orders.  The sentence have included periods of detention in a youth training centre.  Your criminal history is extremely concerning.  You have been troubled by drug use and abuse of alcohol from an early age.  Your drug use involves significant amounts of cannabis from an early age and in recent times, you have been using ice, GHB and abusing prescription drugs. 

60      Not surprisingly, your life has been chaotic.  You developed psychotic symptoms such as extreme paranoia and hallucinations, which you describe as "just the ice talking." 

61      You have reported some auditory hallucinations and considered that you were receiving messages from the television.  There is some report of your mother suffering schizophrenia and there is a risk of you developing that illness.  In this regard I was referred to the report of Carla Lechner, a forensic psychologist whose report is dated 6 July 2015.  The report prepared by Ms Lechner recommended that you undergo a psychiatrist evaluation, particularly with regard to your reported auditory hallucinations. 

62      You were seen by Dr Glowinski on 16 June 2015.  His report of the same day, was tendered.  In that report it was noted that an aunt, as opposed to your mother, has schizophrenia, which nonetheless was said to bring to mind the possibility of genetic vulnerability.  In the opinion of Dr Glowinski, you, Nicholas Harrison, could be described as being at risk of developing an enduring psychosis."  It was pointed out that this was, "Especially if he was to resume substance abuse in the future." 

63      Dr Glowinski reported the following:

"I don't think his current symptoms represent a significant psychiatric illness presently.  I think that his current report of voices can be understood as being a result of a combination of his previous longstanding substance abuse, his immaturity and vulnerable personality and the stress of being in custody with the prospects of a lengthy custodial term."

64      What was also noted by Dr Glowinski and Ms Lechner was your risk of institutionalisation.  In that regard, I note that you are only 19 years old, you have had some brief periods of detention in the youth justice centre, in the current eight or so months on remand in the adult gaol, with your brother providing some degree of support to you.  You have been in state care as you grew up, it is hope that you do not become institutionalised. 

65      What is in your favour is your plea of guilty at the earliest opportunity, which followed from the full and frank admissions that you made very shortly after the events.  These matters are indications of remorse and matter of importance, in particular with the young offender.  Your plea of guilty saved the victim of the significant embarrassment of a trial and as such, your sentence will be less than it otherwise would have been had you pleaded not guilty to these offences. 

66      What is important is your youth.  Ordinarily, it be the most prominent sentencing consideration but given the seriousness of this protracted frightening offending and your long criminal history involving many spurned opportunities for reform, in your case your rehabilitation must yield to deterrence and denunciation.  That said, facilitating your rehabilitation is now abandoned, you will need help on your release.  Your work history shows you can be productive but it depends on you putting drugs behind you and staying away from other drug users.  This is not easy but if you do not make an effort, you will waste your life in gaol. 

67      I turn to you, Jeremy Harrison.  You are now 22 years old and were a year younger when you offended.  You have been on remand since your arrest on 2 October 2014.  Although you are the older brother of Nicholas Harrison, your personal circumstances do differ in important aspects.  As you grew up there were some periods of stability.  You moved through many schools and were placed into foster homes due to your mother's drug addiction, rendering her incapable of caring for you or your brother. 

68      But once you moved to Queensland and into the care of your father, where you remained, you were able to settle, attending school in rural Queensland, to year 10.  After school you started but did not complete an apprenticeship as a plasterer.  You got jobs in fast food stores and supermarkets but could not stick at them for very long, mainly due to your use of drugs.  You were employed in a metal fabrication business for nine months.  Your father wrote that you were a hard worker, doing long shifts.  Your work history, although intermittent, is to your credit and it reveals that if you put an end to drug use you have a good chance to be a solid working man.

69      You left rural Queensland in September 2014, to get away from drug use and other drug users.  You also wanted to get your brother Nicholas away from drugs.  However, by coming to Geelong and reuniting with your brother Nicholas, your resistance and his, to ice faltered and ultimately failed.  Unfortunately, both of you took to using ice and ended up at McCumber's house when the call from Millar came through. 

70      You have been troubled by heavy binge-type drinking in the past as well.  You need to manage your drinking habits once released.  You pointed out to Ms Lechner, the psychologist who saw you as well as your brother, that your time in custody was the longest you had been drug free and sober since you were 15.  You have expressed real regret and remorse, pleaded guilty as early as you could and continued to express remorse in your account to Ms Lechner.  Remorse shown by a young offender with very little prior history, which is your case, allows significant weight to be given to rehabilitation.  The community will be better off if you reform. 

71      While your rehabilitation does not dominate, in your case I can and will do what I can to establish conditions to facilitate rehabilitation.  I am also encouraged in this direction by your efforts to rehabilitate while on remand.  I have taken into account the submissions and materials about your involvement in prison programs, you have also ongoing support of your father in Queensland. 

72      As to important sentencing considerations for each of you offenders, I am mindful that the guideline decision in the Court of Appeal in Boulton.  I am also keenly aware of the clear direction from parliament contained in s. 5(4C) asking what has been described as the new sentencing landscape, I must consider whether options other than incarceration are just and appropriate in the sense of meeting all sentencing purposes for the crimes committed by you, with all your different personal circumstances.  Each of your counsel urge that I consider a sentence involving a community corrections order or in the case of you, Nicholas Harrison, youth justice centre alone. 

73      Prosecution contend that the offending, especially the false imprisonment and the armed robbery were so serious that even considering all the mitigatory matters and the need for deterrence and the denunciation was such that the sentence to be imposed ought be longer than what would permit a combined community corrections order and gaol.

74      I had each of you assessed for community corrections order and you, Nicholas Harrison, for a youth justice centre.  All were concerned suitable but different levels of risks for reoffending.  You, Mr McCumber, were considered a high risk for reoffending, programs were recommended to reduce the risk, to prevent relapse into drug use and reoffending as well as deal with you mental health problems.

75      You, Ms Millar, were also assessed as high risk for reoffending, though this is not easily understood by me as the other risk assessments.  Again, programs recommended were directed at getting you away from drugs and offending behaviour. 

76      You, Jeremy Harrison, were assessed as being at a medium level risk, however, one concern I have is that your aim is to return to Queensland and your father as soon as possible and there is much to be said for that.  I understand that all community corrections programs can be transferred interstate except for community work. 

77      Nicholas Harrison, your assessment for community corrections order noted your previous poor record on community corrections orders but that you were suitable with a medium level of risk for reoffending.  You were assessed as suitable for the youth justice centre, though a careful analysis of that report raises questions as to whether, in practical terms, the youth justice centre is the best option for you, given your current circumstances in prison, your past behaviour, both good but also some not good at all in the youth justice system, and your attitudes as initially expressed to the assessor.

78      You are now approaching 21 so there is a limited time for you to be the subject of a youth justice order.  I note this afternoon, your counsel, on your instructions, has indicated you do not wish to be returned to a youth justice centre if there is to be any incarceration.  The best for you is the stability you will find connected with your brother, or being in the same place as him. 

79      I must ensure as best I can, proper parity which means acknowledging the roles of each of you in the criminal conduct and the responsibility of each of you in the joint criminal enterprise, and the differences in your personal circumstances, your prior criminal histories and your prospects of reform.  Well, there are separate offences in my view, an aggregate term is appropriate for the central offences of false imprisonment, armed robbery and blackmail, as is plain and conceded, the offending was serious.  It was violent and frightening and has left a lasting impact on the victim.  Denunciation and deterrence are paramount considerations. 

80      After much anxious consideration, in the end the option for a combined community corrections order and gaol is not available to, as I consider, the aggregate sentence for these crimes committed by each of you must be of a length that does not permit a community corrections order component.  That said, I will allow for a potential parole period to assist in each of your rehabilitation back into the community.  In respect of you, Nicholas Harrison, of the same order, a term in the youth justice centre is not open due to the limitation of three years for such an order.

81      The sentences will be different as that appropriately acknowledges the differences in your offending behaviour and your personal circumstances, including your prior criminal histories and your age.  You can remain seated for this part of the sentences but it is here that I announce the sentences to be imposed. 

82      You have committed serious crimes and now is the time the consequence of just deserts must be announced.  Jamie McCumber, for committing the crime of false imprisonment, armed robbery and blackmail, I impose an aggregate term of four years and nine months with a minimum nonparole period of three years and three months.  Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed six years with four years and nine months.  You have already served 297 days on remand that is attributable to these offences.  I will ensure that the declaration, 297 days be reckoned as part of the sentence that I have just imposed, be entered into the records of the court so that there is no doubt that in the prison authority's mind, that you have already served 298, just in case I said the wrong number - 298 days already. 

83      Nejmiye Millar, for committing the crime of false imprisonment, armed robbery and blackmail, you are sentenced to an aggregate term of four years with a minimum term of two years and three months.  Had you pleaded not guilty to these matters, I would have imposed a sentence of five years and six months with a minimum term of four years and nine months.  You have already served 343 days on remand and I reckon that this period of time, part of the sentence that I have just announced, I will ensure that this declaration is entered into the records of the court. 

84      Nicholas Harrison, committing the crime of false imprisonment, armed robbery and blackmail, I sentence you in an aggregate term to three years and six months.  For obtaining property by deception I impose a sentence of 14 days to be concurrent with the sentence that I just announced.  In respect of the unlicensed driving, you are convicted and fined $200.  In respect to committing an offence on bail, you are convicted and fined $200.  So the total effective sentence is three years and six months and I order a minimum nonparole period of 20 months to be served.  Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of four years and nine months with a minimum term of three years.  You have already served 339 days on remand and this being reckoned, I declare that 339 days is part of the sentence that I have just imposed and I will ensure this declaration is entered into the records of the court.

85      Jeremy Harrison, for the crime of false imprisonment, armed robbery and blackmail, you are sentenced to three years and six months.  Obtaining property by deception, you are sentenced to 14 days which should be concurrent with the sentence that I have just announced.  For resisting arrest you are convicted and fined $200.  The total effective sentence for you is three years and six months.  I order a minimum nonparole of 18 months to be served before you are to be released.  Had you pleaded not guilty to these offences, been found guilty of them, I would have ordered a sentence of four years and nine months with a minimum of three years.  You have already served 343 days in custody, this period having been reckoned, I declare that 343 days is part of the sentence that I have just imposed and I will ensure the declaration is entered into the records of the court.

86      HIS HONOUR:  Is there anything further required? 

87      MR HANNAN:  I don't think so, Your Honour. 

88      HIS HONOUR:  There are some orders relating to ‑ ‑ ‑

89      MR HANNAN:  There are some orders, Your Honour, yes, I understand that they were forwarded to Your Honour.  Orders are sought for a forensic sample in relation to Millar and the two Harrison accused persons. 

90      HIS HONOUR:  They'll be granted.  There's no opposition to any of these orders, are there? 

91      MR McGRATH:  No, Your Honour. 

92      MR CHISHOLM:  No, Your Honour. 

93      MS MORGAN:  No, Your Honour. 

94      MR DEKRESTER:  No, Your Honour. 

95      HIS HONOUR:  Made orders relating to the disposal of items connected to the crime. 

96      MR HANNAN:  Thank you, Your Honour.  Your Honour, a compensation order is also sought. 

97      HIS HONOUR:  Yes, the compensation orders will be signed. 

98      MR McGRATH:  Your Honour, just to ensure that this was raised, I think on the last occasion.  There was an issue about the amount of money that had been taken from the banks but that wasn't necessarily in accordance with what had been ‑ ‑ ‑

99      HIS HONOUR:  What do you want me to do? 

100     MR McGRATH:  It was conceded on the last occasion, Your Honour, that the loss was $4204.  If the compensation is for that amount ‑ ‑ ‑

101     HIS HONOUR:  Yes, to Westpac. 

102     MR McGRATH:  Yes, no issue there. 

103     HIS HONOUR:  To the gentleman himself, just under 500. 

104     MR McGRATH:  Yes. 

105     HIS HONOUR:  All right.  Those orders will be made in respect of each of the accused, bear with me. 

106     MR HANNAN:  Thank you, Your Honour. 

107     MS MORGAN:  As Your Honour pleases. 

108     HIS HONOUR:  There's a forfeiture order, as I understand, by consent for Ms Millar relating to some items.  You're aware of that? 

109     MR HANNAN:  I wasn’t, Your Honour. 

110     HIS HONOUR:  It says, item 8, one all black Audiosonic tablet (indistinct)  pink children's couch.  Any ideas? 

111     MS MORGAN:  Your Honour, those are the matters that were stolen by the trip from the Kmart, so there's no issue with that. 

112     HIS HONOUR:  Yes, that's what I thought.  Although I'm close to signing all these orders, I'm conscious of the time that it takes and each accused knows that I'm doing it.  It may be that some or other wish to speak to their lawyers as quickly as possible, downstairs and I assume that the prison authorities have a time that they wish to get them away.  Is there any need to keep them there while I do any of this paperwork? 

113     MR HANNAN:  No, Your Honour. 

114     MS MORGAN:  No, Your Honour. 

115     HIS HONOUR:  Is there anything else required in this matter at all? 

116     MR DEKRESTER:  No, Your Honour. 

117     MR HANNAN:  No, Your Honour. 

118     HIS HONOUR:  Can I thank counsel for their very significant assistance in respect to this.  Each of you to head down, it's not time to talk to anyone.  Speak to your lawyers shortly. 

119     MR McGRATH:  May we be excused, Your Honour? 

120     HIS HONOUR:  Yes. 

121     MR McGRATH:  Thank you. 

122     HIS HONOUR:  Thank you very much. 

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