Director of Public Prosecutions v Harrison

[2014] VCC 716

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-12-02213

DIRECTOR OF PUBLIC PROSECUTIONS

v

JADE HARRISON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 April 2014
CASE MAY BE CITED AS:	DPP v Harrison
MEDIUM NEUTRAL CITATION:	[2014] VCC 716

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D Hogan
For the Offender	Mr P Guggenheimer

HER HONOUR:

1Jade Corey 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.

2The fact underlying your offending are as follows.  On 7 September, at about 12.45 pm, you and your uncle Frank Harrison went to a house in Cranbourne where you first encountered one of the victims, Danielle Sirvera, who was sitting on her front balcony.  Your uncle told her he was the landlord and she opened the door and then you pushed it, knocked her over, and walked up the stairs, essentially pushing Danielle Sirvera in front of you as she walked up backwards.  At the top of the stairs your uncle forced Sirvera against the wall with his arm against her chest, for about two minutes.

3You then yelled out for two people, Andrew Patterson and Matthew Fountain.  You went in to a room where Fountain was asleep on a couch and then you woke him and asked him if he had chased your cousin, Luke Harrison.  Fountain said he had not and that he had not spoken to your cousin for about six weeks.  You then grabbed Fountain by the throat, put a knee to his chest, and stabbed him with a chisel.  You stabbed him to the right arm twice and you tried to stab him on his right side rib area and stomach.

4Your uncle Frank then released Sirvera and went in to the bedroom where you and Fountain were, saying to you that it was time to go.  You then held the chisel towards Fountain and demanded to know where his wallet was, taking it from a shelf, and then pointing the chisel at his face and demanding to know what the PIN number was.  Fountain told you a false PIN number.

5Your uncle then hit Fountain over the head with a metal pole which caused a cut to his forehead.  The two of you told Fountain and Sirvera if they called police you would come back and finish the job.

6Because you are co-accused in this matter, that is you and your uncle, each of you are responsible for what the other one did.  So, you are charged with aggravated burglary, that is you and your uncle bursting your way in to that house.  Secondly you are charged with common law assault which relates to your uncle pushing Sirvera against the chest against the wall for about two minutes.  The third charge of armed robbery relates to you taking Matthew Fountain's wallet and Charge 4, intentionally cause injury, relates to you stabbing him with a chisel.

7The two of you then left the house with the wallet and immediately an ambulance and police were called.  Fountain was in and out of consciousness and bleeding and was taken to hospital where he remained for four days.  He needed stitches to his forehead and he had to have surgery on his right arm for nerve and muscle damage.  It looked like there was a possible fracture to his neck and he was placed in a collar.  He was also found to have a puncture wound to the right forearm, a cut to the right forearm.  He had reduced sensation in his elbow area and he had a cut, three centimetre cut, to his right forehead.

8You went to your uncle's house where you called your friend Heather Richardson and asked her to come and pick you up.  When she got there you told her that you had to get out of there because you had bashed someone, saying you had taken a man's wallet, and later saying to her that if the police came she was to tell them that you had been with her all day and did not leave the house.  Heather Richardson agreed to do this and made a statement to police giving you an alibi.  She later changed her statement correcting that.  Your girlfriend Caitlyn also made a statement to police that you had been with her all day and the two of you had been at Heather Richardson's house.

9Police came to your house on 11 September 2013 and seized a chisel and a metal scooter pole.  Fountain identified you from a photo board saying that it was 110 per cent you.  Apparently two months before this incident Luke Harrison, who was your uncle Frank's son, had stayed at Fountain's house for a couple of nights.  You were arrested on 24 September 2013 after a short chase in a shopping centre in Cranbourne and were taken to the police station where you interviewed, telling police in that interview that you had been at Heather Richardson's house all that day and did not know the victims.

10The maximum penalty for aggravated burglary is 25 years imprisonment as is the maximum penalty for armed robbery is 25 years' imprisonment as is the maximum penalty for armed robbery.  It is all right, that is just the most I can give him, it is not what I am going to give him.  The maximum penalty for intentionally causing injury is ten years' imprisonment and the maximum penalty for common law assault is five years.

11You indicated a plea of guilty to the charges at committal mention in the Magistrates' Court, that is you entered a plea of guilty at the earliest opportunity.  You were remanded in custody, that is you were placed in gaol, on 22 November 2013 and have remained in custody since that date.

12You also pleaded guilty to breach of a Community Corrections Order which I placed you on, on 9 April 2013, on charges of armed robbery and attempted armed robbery.  I am just going to quickly go back to what that offending involved.

13On 1 July 2012 you were with some friends in Langwarrin when you went up to a couple asking for a cigarette, which you got, and then seeing them about an hour and a half later asked for another cigarette but the gentleman in the couple said that he had already given you his last one.  You then produced a tyre iron and demanded that the gentleman, Mr Wardle, hand over what was in his pockets.  You asked him and his girlfriend if they had mobile phones.  You snatched the mobile phone from the hands of Mr Wardle's girlfriend Ms Lester when she pulled it out and those actions underlay armed robbery.  You ran back to your group of friends, got in to a car, and left.

14The second charge of attempted armed robbery occurred on 9 August 2012 when you got friends to pick you up because you said you were bored.  This was in Cranbourne and a group of you decided to see another friend in East Bentley.  You then got lost on the way and decided to pull over and ask for directions, seeing a taxi driver, an Indian gentleman named Harpreet Singh who was at a car wash cleaning his car.  You went over and asked him to drive you to Bentley and when he said he could not you pulled up your shirt sleeve, showing a knife that was concealed there.  That related to a summary offence that I dealt with, carrying a controlled weapon.  Then you demanded that Mr Singh give you his wallet and phone but he refused and you pulled the knife out and pointed it at him saying, "Give me everything, I will kill you."  Mr Singh grabbed a nearby bucket of water and threw it over you before running to a nearby service station.  Those actions underlay the charge of attempted armed robbery.

15On that occasion I gave you what was effectively a total sentence of three months and then ordered you be released on a Community Corrections Order for two years.  I received a report from those involved in supervising you on the Community Corrections Order.  You appear to have made a briefly good start on that Community Corrections Order but basically after that absolutely fell off the wagon.

16Your counsel informed me that after being released from gaol on the three months that was attached to the Community Corrections Order you went down to Gippsland to Wagunganarlu, the men's learning centre, where you stayed for several months, doing quite well, and managing to stay off drugs.  The drug that is worse for you, of course, is ice, and you have been using this on a continuous basis since you were about 15 or 16.  However, your mother then rang up, reporting that she had been raped, she lived in Echuca.  You spoke to the head of the Wagunganarlu Centre, Shane Braybrook, who advised you to stay but you did not listen to him, took off, and went up to Echuca to assist your mother.

17Community Corrections were fairly cooperative with this action, they moved your reporting and supervision up to the Shepparton area so that you could be supervised up there and you stayed with your mother.  By this time, however, you had already fallen off the wagon, as I have said, and you were using ice.  You stayed with your mother for a while, things went, I suppose you could best describe it as, all right, but then your mother who was not happy about you being there and who had advised you to remain at Wagunganarlu, obviously had massive difficulty in dealing with what happened to her, overdosed on prescription medication and you were required to call the CAT team.  She was taken to hospital, she was very angry with you, and you then returned to Cranbourne where you lived at the home of your girlfriend's parents.

18By this time you and she were steadily using ice again and basically you had some time living at that address until you were thrown out because of your drug use and returned to live with your uncle and co-accused in Cranbourne, your uncle being a man, many years older than you, but who also has an established ice addiction.  In that scenario your life became extremely chaotic.  You lost contact with Corrections, you did not attend any of the programs that you were meant to, you did not undertake any of the community work, the unpaid community work, that was part of the conditions that I set for the Community Corrections office.

19It was unsurprising, therefore, that you ended up offending in the way you did.  I accept that the offending was initiated by your uncle.  It appears that he wanted to confront Matthew Fountain and another man over the alleged treatment of his son Luke, who is your cousin, and I note that your instructions are that at the time you had been using ice on a grand scale, had not slept for two days, and had very little recollection of what occurred.

20You have got a very long prior criminal history.  Interestingly it did not start until you were 15.  Your parents separated when you were just a baby and from the age of about three months your grandmother and step grandfather have been looking after you.  Even though they moved around a great deal, even though you went to a large number of schools and had a certain amount of disruption to your education you were a responsible and law abiding young man who managed to get some way through Year 10 and get there without ever coming to the attention of police.

21However, once you left school you also left home and it was when you left home that you began getting in to trouble.  It was at this stage that your alcohol consumption started to go up and you were introduced to ice by your peer group when you were 16 and you swiftly developed an addiction to it.  You have been using it pretty much non-stop ever since, the only breaks being when you have been in gaol.

22I will repeat what I said in my last sentencing remarks Mr Harrison.  You appeared before the Children's Court many times for driving offences, dishonest offences such as burglary and theft, charges of recklessly causing injury, reckless conduct endangering serious injury, criminal damage, unlawful assault, armed robbery in 2009, dealing with property suspected of being the proceeds of crime, attempted armed robbery, shop lifting, theft of motor vehicle, resisting police, making a threat to kill, criminal damage by fire, that is arson, intentionally destroying and damaging property and along the way you have been dealt with extensively by the youth justice system.  Now that was your prior criminal history before you came in front of me back in April of last year.

23Along the way also you have been placed on probation, youth attendance orders, good behaviour bonds, and you have breached them all.  You received ten months in a Youth Justice Centre on charges of robbery, unlawful assault, theft of motor vehicle and criminal damage by fire and you also breached a youth parole order.  Your first time appearing before an adult court was in 2011 when you appeared before the Dandenong Magistrates' Court on charges of intentionally destroying property and intentionally damaging property as well as theft of motor vehicle.  There you got a six month Community-based Order with conditions that you undergo programs to reduce offending, but you breached that.  You were sentenced to two months' imprisonment by the Dandenong Magistrates' Court in September 2011.

24Now, you appealed that two month sentence to the Melbourne County Court, you got another CBO for 12 months and that was the first time you attended the Wagunganarlu rehabilitation centre and the Nuarla Wollonbong Cooperative, which arranged the job, and you managed to stay off drugs for some time.

25Now, your family history has not been easy.  Your mother clearly has problems of her own, you have had very little to do with your father, who is an Aboriginal man and who, I understand, is currently in gaol.  You have had contact with him for the first time since your birth, the last time you appeared before me in April 2013.  Nevertheless I am satisfied you have had a good upbringing.  You have had your step grandfather and your grandmother in your life since you were a child and it was quite clear that they love you very much.  I was able to form that impression from sitting around the table with them in the Koori Court plea that was conducted this morning, Mr Harrison.

26It was quite clear to me that you have got a lot going for you in your life.  At the top of the list is the assistance and the support of your grandparents, but also I found this morning's session extremely useful because I got to see you close up and I got to talk to you.  What was important for me was seeing you straight, if I can put it that way.  You have now been unable to obtain ice for something in the region of five or six months.  That is making a huge difference and your counsel informed me you are now taking the anti-depressant Avanza which is making a lot of difference to your mood.  I thought you presented really well at the table this morning, you did a really good job for yourself.  You are a capable young man.

27

I have got various reports saying difficulties with intelligence because of a car accident and difficulties with education, but you know how to present yourself

Mr Harrison.  You know how to look someone in the eye, you know how to talk to them, and that is something that employers want.  What they do not want is someone who is going to miss days and days because they are in a drug haze and so forth, but you know that perfectly well.  I thought you spoke honestly and sensibly this morning and as I made the comment earlier, like many people who are addicted to ice, gaol has actually been good for you.  It is about the only way we can get young blokes like you off this appalling and terrible drug that you get addicted to so quickly, that you have to use all the time, and that ends up making you feel worse and worse.

28In any event you have managed a difficult time in custody, you have been at the Melbourne Remand Centre where facilities are limited.  You are in the protection unit, you have been in lock down from about two o'clock in the afternoon to 7.30 the next day.  That is a pretty rough way of serving time in custody.

29You said to me during this morning's hearing that you are not a criminal, that you do not belong in gaol.  My comment to you was that it was a good thought, you probably do not, largely because of all the good work your nan and step grandfather have put in to you, but if you keep offending in the way you are offending you are going to belong there.

30You have left me with no option but to gaol you.  If I did not gaol you today I can tell you straight away that this matter would be taken to the Court of Appeal across the road and the Director of Public Prosecutions would say that Judge Gaynor had handed down a manifestly inadequate, that is far too light, sentence.  Three judges from the Court of Appeal would turn around and say we absolutely agree and they would give you a really heavy whack, all right?

31So, as I said to you, judges cannot do everything, we are bound by the law, and we have reached a stage now where the law is saying the only way I can deal with you is to give you a sentence.  But I recognise this is the first sentence of imprisonment, adult imprisonment, you will ever have received.

32Also of great assistance to me was the attendance of the Community Corrections workers, the longsuffering Community Corrections workers, who have trailed around after you as you went from place to place in Victoria and god knows how - somehow they still like you and still see that you are a person with some promise.  You are a likeable young man.  I bet when you are on the ice, though, you are not.  When you are on the ice you lose all - drug addicts basically lose all their personality.  They lose all their personality because they present exactly the same, it is like a bunch of robots.  You can almost tell from how someone's behaving whether they are on smack, whether they are on speed, whether they are on ice.  It takes away your personality, it reduces the person who is using it to a type.  They have stopped being an individual and they just become a junky.  All right?

33So your individuality gets robbed every time you use ice, you just become one of a whole group of ice addicts.  Shard freaks.  All right?  That is just you when you take ice.  You are not special anymore you are just part of a big group of sad people using drugs.  You are only you, really Mr Harrison, when you are off the drugs.

34I do not like gaoling a young bloke like you, no court does.  I know that I took your head off last time you appeared in front of me, I told you that if you offended again to bring your toothbrush.  I hope you have brought your toothbrush, because that is what is going to happen, but I do not like doing it, I do not like sending you to a place where your full potential is not going to be explored, but in some ways I am comforted by the fact that at least in gaol you are as safe as you can be from ice.  I do not know whether it has started flooding the gaols yet, but so far people are managing not to use it in the gaols.

35So you are going to get a sentence today, Mr Harrison, and it is going to be a longish sentence.  When you get out you will have a long period of parole.  Now, parole is really dangerous for you, I tried to explain it to you when we were sitting around the table.  When you are on parole, if you commit another offence while you are on parole you will get gaol again and you will have to serve it on top of whatever time you owe, all right?  But you can also breach your parole by not complying with your conditions.

36So use your time in gaol.  Use your time away from ice.  There is plenty you can do, there are programs you can do, you will not be at the MRC anymore you will be classified now, you will be going somewhere where something can happen.  Hopefully it will be somewhere like Daringil, somewhere where they have got programs, where there is a bit of concentration on young blokes, and a bit of rehabilitation can go on in your case.  All right?  Use it.  Obviously you are not going to like it, no one likes gaol, gaol is not designed to make people like it.  The only people who like gaol are the people who feel comfortable there, the people whose mates are in gaol, who do not feel comfortable on the outside because they have got nothing.  You have not got nothing.

37But there is plenty there, if you are sensible, that you can use for your ultimate benefit and I hope you do.  I hope you do, because you can make something of your life, you can come out, you can be, you know, somewhat of a strong influence and a leader to your little brother and I am sure, as Aunty Pam said to you, there is a big place for you in the Aboriginal scheme of things if you want to explore that.  A lot of the gaols have a lot of opportunity for young Aboriginal men who want to do that and it is a community that very much needs the participation of young men like yourself.  All right?  That is because overwhelmingly, whether it is Aboriginal, or whether it is non-Aboriginal, it is you young blokes aged 17 to about 28 who are getting in to all this trouble and causing all this damage and need to get yourselves out of it and to find a way out.

38So I am saying all that to you, Mr Harrison, because as I said I do have to gaol you and I do not want you going out of court thinking how unfair it is.  I want you to understand why you have got it, that I do not like doing this, that I am obliged to do it, that the Elders have nothing to do with this sentence, their role was simply to talk to you, and that this is a position you have got yourself in to and it is a position you can get yourself out of again.  In sentencing you I take in to account your plea of guilty which was made at the earliest stage.  I take in to account that you are only 22 and a young offender for the purposes of the legislation.  That you presented extremely well during the conversation in the Koori Court session, that you have the continued support of a good family and that you do not have hopeless prospects of rehabilitation.  Indeed I am of the belief that if you set your mind to it you have got good prospects of rehabilitation.  Could you stand up please?

39I therefore sentence you as follows.  On the charge of aggravated burglary you are sentenced to two years' imprisonment.  On the charge of common law assault you are sentenced to six months' imprisonment.  On the charge of armed robbery you are sentenced to two years' imprisonment.  On the charge of intentionally causing injury you are sentenced to two years' imprisonment.  On the original charge of armed robbery you are sentenced to two years' imprisonment and on the charge of attempted armed robbery you are sentenced to two years' imprisonment.

40I order that the base term be the sentence imposed on Charge 3 on the indictment, two years.  I order that six months of the sentences imposed on Charge 4 on the indictment, on the original charge of attempted armed robbery, on the original charge of armed robbery, and on the charge of aggravated burglary, be served cumulatively to the charge imposed on Charge 3, giving a total effective head sentence of four years.  I order that you serve a minimum of two years before becoming eligible for parole.  I declare that 139 days have already been served by way of pre-sentence detention, so you have got something in the region of 19 months to go, all right?  Do you understand?

41OFFENDER:  Yes Your Honour.

42HER HONOUR:  Now, if you were older you would be getting six with a four.  Your counsel will be telling you that.  Given the number of priors you have got - you have been to court now for about three or four times for armed robbery.  You are in the big league now, Jade, this is the least I can give you without it being appealed.  You know, if you are 24, 25, I would have to give you seven with a five, six with a four.  So those are the sort of sentences you are looking at if you keep offending, have you got it?

43OFFENDER:  Yes.

44HER HONOUR:  Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a maximum term of five years and ordered you serve a minimum term of three years.  So you have got 19 months to lay the ground work, all right?  For the rest of your life.  Terry is going to get in contact with Jesuit social services and the Connect people will be in to make sure you lay the ground work, they can assist you when you are coming out.  You understand you cannot go back to Cranbourne, have you got it clear?  Never, never, never, put your grandmother in this position again.  She does not deserve it, after what she has done for you, all right?  Now you need to be a man about this, you need to serve this time, and you set the ground work, all right?  Then you walk away from that gaol and you never go back, got it?

45OFFENDER:  Yep.

46HER HONOUR:  Thank you.  Have a seat.  I have signed the disposal orders, which I seem to have immediately lost, here we go.

47

MS HOGAN:  Does Your Honour need to make any comment about the breach of the contravention and of the CCO charge, or

the ‑ ‑ ‑

48HER HONOUR:  I am not going to - the order obviously is cancelled.  I have a discretion as to whether or not I impose a penalty for the breach itself and I am not, I am simply re-sentencing him on the original charges.

49MS HOGAN:  Thank Your Honour.  With the charge of the fail to comply with the community work permit, there was 39 hours outstanding which converts to eight days imprisonment.

50HER HONOUR:  All right, I will convert that to eight days and I will make it concurrent.  All right, thank you very much.  All the best Mr Harrison, all right?

51OFFENDER:  Thank you Your Honour.

52HER HONOUR:  Look after yourself.  Bye Elsie, take care, and Bob, thank you very much.

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