Director of Public Prosecutions v Harrison
[2014] VCC 1483
•6 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 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: | 6 August 2014 | |
CASE MAY BE CITED AS: | DPP v Harrison | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1483 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Bhai | |
| For the Accused | Mr A.J. Lavery |
HER HONOUR:
1 Frank James Harrison, you have pleaded guilty before me to one charge of aggravated burglary, one charge of common law assault, one charge of armed robbery, and one charge of intentionally causing injury. The facts underlying your offending are as follows:
2 Your son Luke, who was then aged about 15, used to visit a share house in which the victim Matthew Fountain, his brother Andrew Paterson, and his ex-girlfriend were living. He stopped visiting you a couple of months before the offending.
3 On 7 September at 12.45 p.m. you and your co-offender Jade Harrison, your nephew, attended the house. Danielle Savera was sitting on the balcony and went down to meet you at the front door and you told her you were the landlord, and she opened the door. Jade Harrison, the co-offender, pushed the front door open and knocked Savera backwards and he and Savera walked up the stairs, Savera walking backwards, you following. At the top of the stairs, you forced Savera against the wall with your arm against her chest for about two minutes. Jade Harrison yelled out to Andrew Paterson and Matthew Fountain, and went into the room where Fountain was asleep on the couch. He asked Fountain if he had chased your son, Luke, and Fountain said he had not. Jade Harrison grabbed Fountain by the throat, put a knee to his chest, and stabbed him with a blue-and-yellow chisel. He also stabbed Fountain to his right arm twice, and tried to stab him to his right rib area and stomach. You released Savera from where you were holding her, and went into the room where Jade Harrison and Fountain were, and told Jade Harrison it was time to go. Jade Harrison then held the chisel towards Fountain, and demanded to know where his wallet was, and took Fountain’s wallet from his shelf, and pointed the chisel at his face, and asked for the PIN number, Fountain providing a false PIN number. You then hit Fountain over the head with a metal pole, causing a laceration to his forehead. And the two of you told Fountain and Savera that if they called police, the two of you would come back and finish the job, and then left the house with Fountain’s wallet.
4 Police and ambulance attended. Fountain was in and out of consciousness, and bleeding, and was taken to Dandenong Hospital, where he stayed for four days. He received stitches to his forehead, and surgery on his right forearm for nerve and muscle damage. He was also placed in a collar, because of possible injuries to his spine. He was found to have a puncture wound to his right forearm, a laceration to his right forearm, reduced sensation in his elbow, and a laceration to his right forehead.
5 You were arrested on 11 September at your home by police, who seized a blue-and-yellow-handled chisel, and a metal scooter-pole and you were interviewed and denied the offending, saying that you were at your house that day. A contested committal was held on May 1, 2014, after which you pleaded guilty, and the matter proceeded by way of straight hand-up brief. It is acknowledged that your plea of guilty was entered at an early opportunity.
6 I now turn to your personal circumstances. You are 42 years old, the eldest of three children, having a brother and sister and five half-siblings born to your mother’s previous relationship. Your father died of a heart attack when you were a child. You had a difficult childhood, in some ways, although you told psychologist Jeremy Parker, whose report dated 16 June 2014, was tendered on the plea, that you had a positive relationship with your mother and your sister; that you loved your brother; and that after your father died, you also had good relationship with him, although you moved out of home when you were 13, as you had a fight with your father, and he told you to get out. You then went and stayed at a half-sister’s flat for a while, and then spent about six months in a refuge, before living with a girl aged 16 with whom you stayed for several years. When you were 16, you formed a relationship with a 23-year-old woman, which lasted seven years, and you had a child. When you were 25, you formed a second relationship - who is the mother of your two children, Luke and Emma and this relationship ended when your then partner left, and you were left with the care of those two children, whom you have raised since Luke was one year old. You had some difficulties with education. You left secondary school halfway through Year 8. You currently began drinking daily when you were 16 and you also passed cannabis, although you now do not use any illicit drugs. You began work when you were 16, cutting firewood with your father. And you had employment picking fruit and making engine moulds, and working in sawmills.
7 You have a troublesome criminal history, the main trouble being that you have several times been placed on intensive corrections orders, and Community Corrections Orders, which you have failed to complete satisfactorily.
8 Turning to your prior criminal history: in the 1990s you were dealt with for possession of cannabis and cultivation of cannabis and in 2011 you were also dealt with for cultivating cannabis but more seriously, for an incident which arose at a party, where, as a result of gate-crashers who assaulted your nephew, you grabbed a rifle and shot into the air, and were charged with reckless conduct endangering injury and other firearm offences. On that occasion, you were placed on an intensive corrections order, which you breached by driving offences and failure to comply with the conditions with the ICO, which was then converted into a Community Corrections Order, which you contravened and you were ultimately placed on a suspended sentence, in August 2013. These offences, obviously, occurred whilst you were on that suspended sentence. You also received a suspended sentence on that day for dealing with property suspected of being the proceeds of crime.
9 You continue to reside with your mother and children. It appears that the reason this offending occurred was because of your understanding that the occupants of the house had given your son Luke amphetamines and I was informed by your counsel that your son, in fact, suffered a psychotic reaction to the drugs, and continues to suffer from this reaction to this day.
10 You yourself present with a number of problems: You were assessed by Mr Parker as suffering a post-traumatic stress disorder, and a major depressive disorder. He says there is no direct correlation-causation between your offending and these conditions but he did state that you would find it difficult to manage in prison, because of your anxiety, which is exacerbated by prison and can re-trigger flashbacks and distressing imagery. I had you assessed for a Community Corrections Order. I did so because there has been no subsequent offending, and because whilst your behaviour was extremely ill-judged, you seem to have played a far more passive role than your nephew Jade, who was, apparently, high on ice at the time and I dealt with him in relation to that offending, and gaoled him primarily because I had previously placed him on a suspended sentence in relation to a very serious series of armed robberies that he had committed, and because this offending was just one of several breaches of that suspended sentence. His situation, when he presented to court, was quite different to yours and in my view, the issue of parity does not particularly arise.
11 Mr Parker states that he believes you would be a good candidate for rehabilitation in the community, as you have stable and supportive living arrangements, appropriate social activities, and opportunities for work. I am reluctant to gaol you because of your condition but it was noted by the community corrections assessor that you have performed very poorly on orders in the past and it was his opinion that he had little confidence that you could successfully complete a Community Corrections Order at this time. He stated, “When asked as to reasons for the extensive non-compliance, Mr Harrison cites carer responsibilities, and drug and alcohol use, as the main factors. While subject to supervision by Corrections, Mr Harrison was caring for two children. He now cares for one, and reports to have assistance from his mother, as well as the Department of Human Services, and used a substance abuse service.” This is a service that your son Luke now attends. Mr Thomas continued, “Whilst these protective factors may improve his ability to comply, his son is still highly dependent on him. Also of concern is that Mr Harrison admitted consuming ‘a few beers’ before caught on the day of the assessment, thinking he was going to be gaoled. Carer responsibilities and irresponsible use of substances appear to continue to feature highly in Mr Harrison’s life.” It was for that reason Mr Thomas concluded that you are unlikely to be able to complete a Community Corrections Order.
12 Despite the concerns of Mr Thomas, I am going to give you one more go, Mr Harrison. But, really, you need to understand that if you do not comply with the conditions, you are going to end up in gaol. This is the last chance a court is ever going to give you. I am giving you this opportunity because of the early plea of guilty; because of the gains you have made on your substance abuse, in particular the drug use; because of the responsibilities you have towards your son Luke, because you have better prospects for rehabilitation now than you have had in the past, and because I am satisfied that you would find service of a sentence of imprisonment more difficult than the ordinary prisoner, because of the psychological problems that you have.
13 However, as I have said, I do warn you that if you do not stick to the conditions of this order – if you are brought back before me, in front of a breach(sic) – you will be going to gaol. And all the problems in the world that you have, Mr Harrison, are not going to stop that happening. You are responsible for what happens to you now. Do you understand? Are you prepared to be placed on a Community Corrections Order?
14 PRISONER: Yes, Your Honour.
15 HER HONOUR: I will explain the conditions of it. Stand up, please.
16 As the offence all arise from the one incident, I am going to make an order for an aggregate term, in that the Community Corrections Order will be an aggregate disposition. The order will last for a period of two years. I need to explain to you the core conditions of the order. They are, firstly, that whilst you are on the order, you must not commit any offence punishable by imprisonment, either inside or outside Victoria. We have been through that, Mr Harrison. Do you understand?
17 PRISONER: Yes.
18 HER HONOUR: Secondly, you must report to, and receive visits from, the Community Corrections Office. You must report to the appropriate Community Corrections Office within two working days of receiving this order, that is, by Friday. Whilst you are on this order, you may not leave Victoria without the permission of the Community Corrections Office. You must also inform the Community Corrections Office of any change of address or employment whilst you are on that order, do you understand? Within 48 hours.
19 I am going to order special conditions: that you undertake 200 hours of unpaid community work; you are to receive assessment of, and treatment for, substance abuse problems. You are also to be assessed for, and receive treatment for, mental health problems. That is, you are going to have to attend a psychologist. All right? Are you prepared to abide by this order?
20 PRISONER: Yes.
21 HER HONOUR: Yes, thank you, I will prepare the order.
22 All right. So I have signed the retention and disposal.
23 MS BHAI: Thank you.
24 HER HONOUR: Yes, we will just get you to sign this, Mr Harrison. I should also add that your prior history is not particularly extensive. It mainly involves breaches of an original order that you were placed upon, so that, in terms of you presenting at the date you get the Community, your history does not, in my view, mean that I need to see that as a dominant principle in the sentencing exercise before me. Of course, aggravated burglary, armed robbery, and assaults, essentially home invasions, are extremely seriously offences, and ordinarily you could only expect to be sent to gaol, and indeed this was the course that was urged upon me by the prosecution but for the mitigatory features that I have already outlined, I have decided that the better course is to place you on the order in the terms that I have outlined. But this is absolutely your last chance, Mr Harrison. I do not need to make a s.6AAA declaration, because I have imposed a Community Corrections Order. Thank you very much.
25 MR LAVERY: As Your Honour pleases.
26 PRISONER REMOVED
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