Director of Public Prosecutions v Harrison
[2024] VCC 59
•8 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01886
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRENT HARRISON |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 May 2023 | |
DATE OF SENTENCE: | 8 February 2024 | |
CASE MAY BE CITED AS: | DPP v Harrison | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 59 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Aggravated Burglary – Offensive Weapon – Theft – Contravene FVIO – Bugmy – Verdins – Mental Health – Deferral of sentence – Psychological disorders – Substance abuse – Early plea
Legislation Cited: Sentencing Act 1991
Cases Cited:Degney v The Queen [2019] VSCA 183; DPP v Meyers (2014) 44 VR 486; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 62; R v Hermann [2021] VSCA 160; R v McKee [2003] VSCA 16; R v Brooks [2003] VSCA 16;
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C. Brydon | Office of Public Prosecutions |
| For the Accused | Mr G. Chipkin | Victoria Legal Aid |
HER HONOUR:
1Trent Harrison on 25 May 2023 you pleaded guilty on indictment N11189422 to one charge of aggravated burglary, one charge of contravene a family violence order intending to cause harm or fear for safety, one charge of theft of motor vehicle, one charge of theft and one charge of criminal damage.
2In addition, you agreed to the following related summary offences being dealt with and have pleaded guilty to charge 6 fail to stop vehicle on police direction, charge 7 unlicensed driving, charge 8 commit indictable offence whilst on bail, charge 9 contravene bail conditions, charge 10 possess controlled weapon, charge 11 drive in a manner dangerous, charge 12 contravene family violence interim intervention order.[1]
[1] Original sentencing remarks referred to charges 12 and 13 as summary related offences that were to be dealt with by the court. Defence counsel confirmed that charge 13 had been withdrawn and the offending behaviour had been subsumed in charge 12.
3As part of the arraignment process you admitted a significant prior history.
Background
4In January 2024 you had your 39th birthday in custody. You were originally born in Queensland. Your parents separated when you were an infant. You had two half-brothers from your mother’s subsequent relationship, Jacob (now deceased) and Matthew, and another half-brother from your father’s subsequent relationship.
5Sadly, your childhood was traumatic and marred by grief, parental substance use, neglect, physical and sexual abuse, domestic violence and ultimately out-of-home care.
6At the age of 2, your mother relocated to Victoria and you and your father followed as there was a shared custody arrangement. When you visited your father you felt safe and secure. However, when you were 8, your father committed suicide. You were the one to discover your father’s body. Not surprisingly this has had a profoundly deleterious and long lasting impact upon you.
7Your childhood deteriorated after your father’s death. You suffered material and emotional neglect whilst with your mother, who had severe substance use issues. You never felt loved or cared for by her.
8Your mother re-partnered with your stepfather, who also used illicit substances and was emotionally and physically violent and abusive towards you. On one occasion your stepfather told you that you should commit suicide like your father. You felt like a burden and perceived that your two half-brothers were sheltered and treated more favourably.
9Not only were you a direct victim of family violence but you were exposed to domestic violence perpetrated by your stepfather against your mother. You fled with your mother to a women’s refuge when you were 12, however your mother briefly reconciled with your stepfather which led to you running away from home.
10Your mother then re-partnered with another man who also had substance use problems, and you were subsequently placed in out-of-home care at age 13. At this time, you were provided the protection of a Family Violence Intervention Order, your mother and 2 half-brothers were the respondents.
11You also endured a history of childhood sexual abuse, both at the hands of an uncle when aged 10 and youth workers whilst in juvenile detention when aged 15. You reported the incidents involving your uncle to your mother, who did not believe you and called you a liar. You have more recently reported the sexual abuse at the hands of the juvenile justice officer which saw you involved in the Royal Commission legal proceeding. Whilst at liberty recently you received monetary compensation for your pain and suffering.
12In terms of education you left school around year 8. For you, school was an escape from the abuse you suffered in your home life. As a result of your chaotic and traumatic childhood your schooling was significantly disrupted. You were an angry and confused child and you had few friends. You were suspended for truancy and for displaying aggression towards peers and getting into fights. You did not have any significant learning issues other than difficulties with mathematics. You were ultimately expelled due to being caught for selling drugs at school on behalf of your mother.
13You have had a sporadic and limited employment history. Your first source of income was through the proceeds of crime, specifically drug dealing. You have had casual jobs throughout adulthood but have been unable to hold down a job for more than 12 months. You attributed your unstable employment history to your criminal lifestyle and escalating substance use. Your longest period of unemployment has been 4 years and you have relied on Centrelink during this period.
14You have no future plans for employment yet, but have expressed passions and interests in tattooing, drawing, outdoor activities, or working in factories.
15From a very young age you were introduced to alcohol and drug use by your mother and other family members. Your first use of cannabis was at age 9 when your mother gave you the substance as you were not coping following your father’s death. From that time, for several years you became a regular user of cannabis. At age 12, your aunt introduced you to amphetamine use by assisting you to inject the substance intravenously. Since then you have experimented with a range of drugs including ecstasy, cocaine, acid and heroin. In more recent times your drug of choice has been methamphetamine.
16Your relationship with Stephanie Nelson, the victim in this matter, has been one of the most significant relationships in your life. Although your relationship was off and on, it persisted for approximately 15 years. Both you and Stephanie had drug and mental health issues. At times this caused conflict within your relationship. At other times, no doubt these factors brought you closer together as you provided support and understanding for each other. Ms Nelson and her family accepted you as one of their own and you loved Stephanie dearly.
17You have had serious and persistent mental health issues and have been diagnosed with schizophrenia, depression and post-traumatic stress disorder amongst other disorders. I will turn to this aspect of your life in more detail shortly. It is in the context of your severely deprived and abusive childhood, your poor mental health and drug use that you amassed the significant criminal prior history you have admitted.
18In June 2021, you were sentenced to imprisonment to be served by way of a Drug Treatment Order. At times you performed extremely well on this order and in fact, achieved sobriety for 7 months. In addition, you obtained employment and secure accommodation. Unfortunately, in early 2022 Stephanie experienced significant mental health challenges and issues arose in your relationship. On 24 February 2022 Stephanie obtained a full Family Violence Interim Intervention Order. This order prohibited you from: Committing family violence against the protected person; Intentionally damaging the protected person’s property, or threatening to do so; Contacting or communicating with the protected person by any means; Approaching or remaining within 5 metres of the protected person; Going to or remaining within 200 metres of her address or any other place where the protected person lives.
19It is clear from the progress notes from drug court, tendered on your plea, that by May of 2022 your mental health had significantly declined. You had contact with the CAT team and there was talk of involuntary admission to Dandenong Psychiatric unit or a private psychiatric unit. In the lead up to the offending now before the court you had discovered your relationship with Stephanie was finally over and she was dating another person.
20On 23 May 2022, you were released on bail. Conduct conditions included that you were to abide by the conditions of the Intervention Order and not to contact prosecution witness, being Stephanie NELSON. (RSO - Charge 8 and 9 - Commit Indictable Offence Whilst on Bail / Contravene Bail Conduct Conditions).
21On 9 June 2022, you sent several text messages to the victim, including a photograph of your genitals. On 10 June 2022 between 1:00 AM and 6:00 PM, you sent 24 text messages to the victim. (RSO Charge 12 – Contravene IFVIO)
22At 6:00 PM the victim sent you a text message stating she had reported you for breaching the order and said “…you deserve everything you get.” At 6:02 PM, you sent a text message to the victim stating, “Yeah so will you in the next 20, you've been playing me the whole time now it's my turn.”
23Soon after, you turned up at the victim’s home you knocked on the front security door and then tried to pull it open. You were unsuccessful as the door was locked. Your victim was home with her siblings and she immediately contacted 000.
24You walked around the left side of the house and approached the window of the room belonging to the victim’s brother. You asked him to let you in and he refused. You were able to get into the backyard by climbing a fence on the right hand side of the house.
25Once in the backyard you went to the glass back doors, you yelled to be let in and kicked the doors. At the time you had a meat cleaver and an axe multi-tool. You tried to jemmy the two French doors open using the meat cleaver. The victim tried to hold the doors shut, but you were able to force them open which caused the victim to fall backwards onto a couch which was behind the doors. (Charges 1 and 2 – Aggravated Burglary with Offensive Weapon, Breach FV IVO Intending Harm / Fear)
26The victim’s brother was nearby at the time. He had a knife from the kitchen. A piece of the wooden part of the door broke off and hit him causing a minor laceration to his wrist. (Charge 5 Criminal Damage)
27The victim’s brother attempted to push you outside, however you pushed past him and walked further into the house. The victim was screaming at you to get out of the house, but you refused. You were ranting and raving. You were still holding the axe multi-tool and meat clever in your hands.
28Next you searched through a chest of the drawers, in one of the bedrooms looking for money. You then walked towards the front of the house where you found and took the victim's car keys. (Charge 4 – Theft) You left the house got in the victim’s car and drove away down the street. (Charge 3 Theft of a Motor Vehicle).
29The police arrived at the victim’s address a short time later. They spoke with the victim and processed and photographed the crime scene.
30At approximately 8:15 PM, you were sighted by police driving the victim’s car. They pulled up next to you whilst you were stopped at a red light. You do not hold a Victorian Driver's Licence and have no authority to drive. (RSO Charge 7 – Unlicensed Driving)
31When the light turned green, the police followed you and then activated their emergency lights and siren, indicating for you to pull over. You did not obey the direction and continued driving until the police lost sight of the vehicle. (RSO Charge 6 – Fail to Stop)
32At approximately 9:20 PM, the police air wing arrived overhead and monitored you in the stolen vehicle. You were observed driving dangerously in wet conditions at night-time whilst significantly drug affected, without your headlights or any driving lights activated. You narrowly missed a head-on collision with an oncoming vehicle whilst attempting to overtake and then turned right on the incorrect side of road. (Charge 11 – Driving Manner Dangerous)
33At approximately 9:30pm you were sighted by police who attempted to deploy stop sticks to disable the car. They were unsuccessful because you drove off the road and into a grassed parkland where the car became bogged in mud. Police members approached the vehicle. You began to exit the vehicle but changed your mind. You then attempted to drive away, accelerating heavily causing the rear wheels to spin in the mud however the vehicle was completely immobilised in the wet ground.
34Numerous demands were made by the CIRT members for you to get out of the vehicle however you refused to comply continuing to accelerate heavily. Eventually, a police officer smashed the passenger side window and deployed his Taser. You were still non-compliant and an additional taser charge was deployed, this allowed the police to pull you from the vehicle and you were arrested.
35Police then conducted a search of the stolen vehicle, locating the meat cleaver used in the aggravated burglary, partially concealed between the driver's seat and b-pillar of the vehicle (Charge 10 – Possess Controlled Weapon). A metal blade kitchen knife was also located inside a small black bag which was found on your person.
36Due to your demeanour and possible recent drug use, you were not interviewed. You were remanded in custody at this time.
37On the morning of 11 June 2022, you were interviewed at the Dandenong Police Station by DSC WAKEFIELD and SC SEMPLE. You made several admissions and some denials. On 16 June 2022 the vehicle was further searched and the axe multi-tool was located.
38At the time of your plea on 25 May 2023, you had been in custody for almost 12 months with 207 days directly referrable to this matter and 142 days served in satisfaction of a sentence imposed for another matter that is relevant to this court in respect of totality. Whilst in custody you participated in a 27 hour intensive rehabilitation program in relation to methamphetamine abuse. Significantly, you had obtained approval for an NDIS package to facilitate case management and supports in the community post release. Such case management had commenced whilst you were in custody.
39On 25 May 2023, I ordered an extended pre-sentence report from Corrections to assess your suitability for a Community Corrections Order. You were assessed as unsuitable for such an order. Your plea was adjourned on 2 occasions to allow your legal team to put a plan in place suitable for deferral to allow you to demonstrate your ability to rehabilitate. There was some delay involved in this process as your mental health had deteriorated in custody as a result of the deaths of two very significant people in your life, your step brother Jacob and your grandmother.
40On 7 September 2023 you were released on a deferral of sentence and bail with conditions. These conditions included that you live with your step-mother Sally-Anne Harrison and engage with East Side Recovery Program which is a full day rehabilitation program. You were also supported by your NDIS worker and had a mentoring program Hard Cuddles. Whilst engaged with East Side Recovery Program you had structure and although it was difficult and you struggled with your anxiety and mental health issues you were compliant with bail and progressed well on the deferral of sentence.
41Once the East Side Recovery Program concluded and there was less structure and support you appeared to become overwhelmed. Ultimately, you admitted yourself on several occasions to a psychiatric unit and on other occasions you were admitted involuntarily. It was apparent to me during the reviews throughout your deferral that you were motivated to change, that you had developed insight but that you were crippled by anxiety and poor mental health. Without significant support and structure you struggled in the community.
42On 8 December 2023 I issued a warrant for your arrest as you failed to appear for a deferral review. This warrant was executed within days and on 11 December 2023 you were returned to custody where you have since remained. Initially, you were unmedicated in custody and it took several days before psychiatric services made an assessment of you and imposed an appropriate treatment plan.
43On 25 January 2024 a further plea took place and I ordered another pre-sentence report from corrections. You have now been assessed as suitable for such an order.
Victim Impact Statements
44There are many factors that I need to take into account in the formulation of your sentence. This includes the three victim impact statements from Stephanie, Rebecca and Matthew Nelson that were tendered on your plea.
45Stephanie described that your offending has changed her life dramatically. She fears for her safety and the safety of her two intellectually and physically disabled siblings. Flashbacks and nightmares constantly reoccur and she feels isolated and disconnected from her supports and family. Stephanie spoke of the difficulties she experienced as her car was written off. The cost of travel has been difficult. A further issue for her was that your offending occurred in her childhood home where she grew up and where she has many memories of her late mother.
46Rebecca described that she feels scared when she hears loud sounds and is scared that her sister is going to die. Matthew described that he received a wound from the wood when you kicked in the door. This has become a scar that has faded over time.
47In sentencing you I take into account the impact of your offending on the victims.
Nature and gravity of offending
48Further, I must make an assessment of the objective gravity of your offending. Aggravated burglary, in particular, is an inherently serious offence, and that is clear from the maximum penalty of 25 years imprisonment. In determining the seriousness of your offending, I have had regard to the case of DPP v Meyers,[2] in which the Court of Appeal set out considerations which will ordinarily be relevant to an assessment of the gravity of offending for a charge of aggravated burglary. I have given consideration to these factors.
[2] (2014) 44 VR 486.
49It is accepted by the prosecution that your intent in attending the property was to enter and steal property. The prosecution does not allege that you had an intent to assault the occupants. Mr Brydon, on behalf of the prosecution submitted that your offending is aggravated by the following factors; you contacted the victim prior to your attendance and there was a threatening undertone to those messages; you offended against the victim despite the existence of both an intervention order and bail conditions being in place for her protection; aside from the victim there were two vulnerable and disabled victims at the address; you carried a meat cleaver and multi-axe tool with you and both were wielded with the implicit threat of injury or incapacitation; finally all three victims were in their own home where they were entitled to feel safe.
50Further, the prosecution submit that way you drove the stolen car amounted to a serious example of dangerous driving. You were drug affected, you ignored flashing police lights, you drove erratically, in wet conditions, at night without lights, in doing so you endangered innocent members of the public. In addition, the prosecutor Mr Brydon pointed to your poor driving record and submitted that general and specific deterrence and community protection were relevant sentencing considerations in relation to the episode of driving.
51Mr Chipkin on your behalf conceded that your offending was serious and would have been a frightening ordeal for the victim who had been granted the protection of a Family Violence Intervention Order. You were not to contact her or attend her premises. Further, he conceded your offending was aggravated by the fact that you were on bail at the time.
52The following factors were advanced by Mr Chipkin as factors that the court should have regard to when determining the objective seriousness of your offending; you had an intent to steal rather than assault, this represents a less serious example of the offence of aggravated burglary; even though you were armed with offensive weapons you did not attempt to use either weapon to assault the victim or her siblings; upon entry you were ranting and raving consistent with your drug affected and parlous state of mental health; the damage caused by you was limited to the point of entry only; and the only items of property taken were the car keys and the car, both items were returned to the victim by police.
53In my view your offending is aggravated by the fact that it was committed in the context of family violence.[3] Furthermore, you were subject to court orders in the form of a Family Violence Intervention Order and bail conditions prohibiting you from the very conduct in which you engaged. It is however, apparent that you were in a very poor state in terms of your mental health and you were significantly drug affected. I will say more about each of these factors in due course.
[3]Degney v The Queen [2019] VSCA 183 at [50].
54I consider the particular purpose you had in mind at the point of entry is a significant feature going to the gravity of the offence.[4] Entry with an intent to steal as opposed to an intent to assault represents a significant difference in gravity. Further to this, although you frightened your victims you did not assault them and stole only what you needed.
[4]DPP v Meyers (2014) 44 VR 486 at [49].
55The episode of driving you engaged in was outrageous. You drove head on at cars, you were on the wrong side of the road, your driving was erratic, in wet and dark conditions, at times you drove without lighting and you were significantly drug affected. Driving in such a state is a recipe for disaster and you endangered several other innocent road users. I consider this to be a serious example of dangerous driving.
Psychological history
56In the circumstances of your particular case it is necessary to consider your psychological functioning as part of the sentencing process. Prior to your release on deferral you were assessed in custody by Naomi Cameron, forensic psychologist. Ms Cameron’s report, dated 7 April 2023, illustrates a lengthy history of interactions with mental health and crisis supports.
57At the time of Ms Cameron’s assessment, records indicated you had received prior diagnoses of Schizophrenia, Obsessive Compulsive Disorder, Borderline Personality Disorder and Avoidant Personality Disorder. She also noted a history of self-harm and suicidal behaviour which began following your own father’s suicide when you were a young child.
58You have been medicated for over ten years with anti-depressants and anti-psychotics which you report improved your symptoms when adhered to properly.
59Ms Cameron was of the opinion that your psychological profile stems in large part from ‘severe childhood instability and trauma’. She highlighted the existence of well-established links between neglect, out-of-home care and interaction with the criminal justice system. The disruption of parental attachments are known to have long term significant effects on a child’s development across all areas of functioning.
60These experiences likely explain your diagnoses of Borderline Personality Disorder and Post-Traumatic Stress Disorder. Borderline Personality Disorder often manifests as volatile relationships, insecure attachments and a propensity towards self-harm. Post-Traumatic Stress Disorder can lead to highly avoidant behaviours and has negative impacts on cognitive processes and mood.
61She also affirmed you met the diagnostic criteria for Schizophrenia, Major Depressive Disorder, Generalised Anxiety Disorder and Obsessive Compulsive Disorder. At the time you were assessed in custody, your symptoms were generally well managed with medication though you reported experiencing some residual psychotic symptoms.
62Ms Cameron also considered you met the criteria for drug use disorders associated with amphetamines, opioids and sedatives as well as alcohol use disorder. At the time of the report, she considered these to be in early remission due to the custodial environment.
Psychological functioning and offending
63You reported to Ms Cameron that in the months leading up to the offending you had experienced a gradual deterioration in your mental state. Five months prior you had stopped your anti-psychotic medication because you were feeling better and felt perturbed by side effects such as weight gain.
64A relationship breakdown at the start of the year had a destabilising effect and around the time of the offending you had returned to methamphetamine use and your psychotic symptoms had returned.
65You made several attempts to engage with mental health supports through your GP, presenting to the Emergency Department and the CATT crisis team. Ultimately you disengaged with services and subsequent attempts to re-gain intensive supports were unsuccessful. Trying to re-stabilise your mental state with medication was hampered by the extent that it had been compromised in combination with alcohol and drug use.
66You told Ms Cameron that you have little recollection of the offending itself though you take responsibility for what you had done.
67Ms Cameron’s opinion was that the underlying reasons for your offending are multi-factorial. In her view, your psychological presentation is strongly associated with your deeply detrimental formative years. This complex trauma, and your subsequent numerous diagnoses, severely impact your emotional regulation and increase psychological distress whilst leaving you less able to tolerate it. Having this psychopathology reduces your ability to think rationally and problem solve whilst also impairing your impulse control.
68Early exposure to drugs and anti-social conduct, particularly from family members, normalised these behaviours and over time your drug use developed into a form of self-medication in the absence of healthy alternative strategies. However your drug use to self-medicate only magnifies the effects of your pre-existing detrimental psychological traits and tenuous self-regulation.
69In her view, at the time of the offending your already limited capacity to cope was overwhelmed by several stressors including a relationship breakdown, substance relapse, insecure housing and non-adherence to medication. Substance use further decreased good judgement and increased disinhibition and impulsivity, all features already present in your psychological profile.
70At the time of the offending you were also experiencing psychotic symptoms such as paranoia and persecutory ideation.
71In her view, your conditions would make imprisonment more onerous due to inadequate mental health treatment for your needs and custodial conditions tending to exacerbate PTSD symptoms. You would also be at risk of further negative influence by peers and institutionalisation.
Rehabilitation and risk
72At the time of her assessment, Ms Cameron considered your re-offending risk to be high with reference to your prior history, lack of community supports and stability and high mental health and AOD needs.
73Positively, Ms Cameron noted your genuine remorse and a willingness to once again tackle your drug use. Nonetheless, she felt you lacked insight into the link between your self-medication with substances, your mental state and offending.
74Though you expressed enthusiasm for a stay in residential rehabilitation or a further Treatment Order, she considered your chaotic former mode of living would mean intensive supports would be needed for recovery.
75In her view, your risk of re-offending would be heightened with the presence substance use, an insecure living situation, medication non-adherence or a lack of routine and structure.
76She opined that you require community mental health treatment including medication management.
77In relation to substance use she suggested a period in a residential rehabilitation facility followed by ongoing counselling. Though your substance use disorders at the time were in early remission, relapse would be likely without intensive supports. Your prior good engagement with the Drug Treatment Order is a positive indication of your capacity to get your drug use under control.
78A transitional period in between custody and release would be essential to ensure these supports were immediately in place.
Factors in mitigation
79Your counsel submitted in the circumstances of your case and in light of the assessment and evidence of Ms Cameron the principles enunciated in the cases of Bugmy and Verdins were enlivened.
80The prosecution conceded that Bugmy remained relevant in the sentencing process in light of your deprived upbringing.[5] Further, in respect of Verdins the prosecution conceded that there was an evidentiary basis to conclude that your moral culpability is somewhat reduced by you having experienced delusional thoughts, beliefs and hallucinations as a result of your mental illness that affected your perception of reality shortly before and at the time of your offending.[6] The prosecution also conceded that there was evidence that your time in custody will be more burdensome as a result of your mental illness.
[5] Bugmy v The Queen [2013] HCA 37.
[6] R v Verdins [2007] VSCA 62.
81In making an assessment of your moral culpability or degree of blameworthiness to be attached to you for your offending conduct it is necessary to closely examine your personal circumstances and background and an exploration of factors which may explain the offending conduct. To the extent that the offending conduct is due to factors beyond your control the harshness of the moral judgement is likely to be moderated.[7]
[7] R v Hermann [2021] VSCA 160 at [14].
82An examination of your personal history reveals that you suffered significant childhood neglect and deprivation. Further, you were exposed to domestic violence and substance abuse for many of your formative years. In my view, both limbs of Bugmy have application in your case. That is the more general expression that; [8]
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
[8] Bugmy v The Queen [2013] HCA 37 at [40].
83And the more specific expression that;[9]
An offenders childhood exposure to extreme violence and alcohol abuse may explain the offenders recourse to violence when frustrated such that the offenders moral culpability of the inability to control that impulse may be substantially reduced. However the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[9] Ibid at [44].
84Further I consider the following observation of the High Court has relevance in your case that;[10]
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offenders deprived background in every sentencing decision.
[10] Ibid at [43]-[44].
85Likewise, it is clear to me that the principles in the case of Verdins are enlivened in your case.[11] This is as a result of your pre-existing diagnoses, the documented state of your mental health at the time of the offending and the opinions as to the casual nexus of your mental state and the offending expressed by the psychologist, Ms Cameron.
[11] R v Verdins [2007] VSCA 62.
86In the circumstances of your case, I am mindful that there is some degree of overlap between the application of Bugmy and Verdins and I have therefore been careful to place appropriate weight on these mitigatory factors. It is my view that your moral culpability ought be reduced and general deterrence should be moderated.
87Your counsel also submitted that while drug addiction is not ordinarily considered to be a mitigating factor, that where the drug addiction becomes ‘enmeshed’ at a young age it is;[12]
Capable of producing serious corrosive effects that may continue to influence the conduct of the person well into adulthood and from which … they may never escape completely.
[12] R v McKee [2003] VSCA 16 at [21].
88I accept the submission of your counsel that given the age and the mechanism of your introduction to substance abuse and the resulting corrosive effects drug use has had upon your life, it is something that I can take into account as a mitigating factor in your case.
89You have entered a very early plea of guilty. Your plea has facilitated the course of justice and has significant utilitarian value in that you have spared the victim the need to relive the traumatic events she suffered as a result of your offending. Additionally, you have spared the time and cost of a trial. These factors permit me to allow a discount for your plea of guilty.
90Further, given the timing of your plea and the fact that your case resolved at a time when the court backlogs were still in existence due to the covid 19 pandemic I will allow a perceptible amelioration of your sentence.[13]
[13] Worboyes v The Queen [2021] VSCA 169.
91I also take into account that your time in custody was served in the onerous conditions that were brought about by the COVID-19 pandemic. This included lockdowns, quarantines, limited access to programs and limited access to visits.
92I accept that your plea of guilty is evidence of remorse. This together with expressions of remorse made to Ms Cameron and the way you have conducted yourself throughout the proceedings enable me to make a finding that your remorse is genuine.
93In my view, your prospects for rehabilitation are guarded. It is clear that you have some insight and a strong motivation to reform. However, your performance in drug court, on deferral and the opinion of Ms Cameron lead me to conclude that you require significant structure and support if you are to make sustained change. You have the ongoing support of your step-mother Sally-Anne Harrison, with whom you have a strong bond. I note that Ms Harrison has appeared with you at each court hearing and deferral review. Clearly, she is concerned and committed to you. Additionally, you have the support of the NDIS and funding for the implementation of appropriate programs.
Sentencing Principles
94The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In your case, each of these sentencing principles are applicable although I have moderated general and specific deterrence in light of my findings as to your decreased moral culpability pursuant to the principles in Verdins and Bugmy. Protection of the community in the circumstances of your issues and your established prior offending is a very relevant consideration. I consider at this time it is best achieved by a combination sentence of imprisonment with supports and interventions to assist in your transition to the community.
95It is noteworthy that you now accept the relationship with Stephanie is over and that during your time at liberty, on deferral you made no attempt to contact her and there was no further substantive offending. In arriving at my ultimate sentence, I have taken into account your time on the deferral of sentence. In particular for a period of some months you participated in the East Side Recovery Program which involved your attendance from 9am until 4pm daily during the period of the program.
96I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[14] where relevant to your case. In particular, I have had regard to the sentencing landscape for the offending before me, particularly the charge of aggravated burglary. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.
[14] Sentencing Act 1991 (Vic)
97The principles of totality, proportionality and parsimony are also very important considerations here. They require me to make sure the total sentence is appropriate for the total criminality and I have taken these principles into account in fixing the individual sentences and the structure of the sentence I will now impose.
98Weighing up all relevant matters in this difficult sentencing task I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen,[15] that a community correction order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.
[15] Boulton v The Queen [2014] VSCA 342.
Disposition
99Mr Harrison you are convicted and sentenced as follows;
100Charge 1 aggravated burglary you are sentenced to 9 months imprisonment
101On charge 2 of contravening a family violence order intending to cause harm or fear for safety you are sentenced to 3 months imprisonment
102On Charge 3 theft of motor vehicle you are sentenced to 3 months' imprisonment
103On Charge 4 theft of the car keys you are sentenced to 3 months' imprisonment
104And on Charge 5 intentionally damage property you are sentenced to 3 months' imprisonment.
105In relation to the related summary offences you are convicted and sentenced to an aggregate term of 8 months' imprisonment.
106The sentence on Charge 1 is the base sentence and I order that 1 month of the sentence on Charges 2, 3, 4 and 5 and 3 months of the sentence imposed for the summary related offences be served cumulatively. The total effective sentence is therefore 16 months' imprisonment.
107I declare that you have served 373 days by way of pre-sentence detention and this is to be deducted from your sentence as time already served. On my calculation, Mr Harrison, that means there is about three and a half months or thereabouts, and that I am hoping will give time for there to be some planning for your release.
108Mr Harrison in addition to the term of imprisonment I intend to impose an 18 month community correction order on Charges 1 to 5 on the indictment.
109Your order will commence upon your release from custody. The conditions of this community correction order include that:
(a) you must submit for assessment and treatment for drug abuse;
(b) you must submit for assessment and treatment for mental health issues;
(c) you must participate in programs to reduce reoffending;
(d) you are also to attend for supervision; and
(e) I have also ordered Judicial monitoring, that is you must appear back before me from time to time so that I can monitor your progress.
110In addition to the conditions that I have imposed, there are standard conditions that you must comply with. Probably the most important of these is that you are not to commit another offence punishable by imprisonment for the period of the Order, which is 18 months. You need to report within two working days of your release to your nearest Corrections office, which I understand will be Dandenong Justice Service Centre.
111You are required to advise your supervising Corrections officer of any change of address where you are living or working within two clear working days. It is also a term of all community correction orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officers and you cannot leave the State of Victoria without prior permission.
112Mr Harrison if you re-offend you will breach the corrections order and if you do not comply with either the special conditions or the standard conditions you would breach the order, and if you do that you will come back before me and you may be re‑sentenced in relation to the original charges. I think you have been through that process before so you should know what is involved with that.
113I can only place you on a correction order if you agree. So first of all, do you understand what is involved in the order?
114OFFENDER: Yes I do, Your Honour.
115HER HONOUR: Do you consent to such an order?
116OFFENDER: Yes I do, Your Honour.
117HER HONOUR: Pursuant to s6AAA of the Sentencing Act but for your plea of guilty I would have imposed a sentence of 2 years and 8 months' imprisonment with a 20 month non‑parole period.[16]
[16] Sentencing Act 1991 (Vic) s 6AAA.
118Now finally there was an order in relation to Mr Harrison's licence and the prosecution have requested that I make a finding under s89C of the Sentencing Act 1991 for an order for mandatory cancellation and disqualification of driver's licence.[17] The relevant offence in this instance is Charge 3 of theft of a motor vehicle. The dangerous driving charge also would give rise to a mandatory disqualification. What is the minimum, Mr Brydon, is it six months?
[17] Ibid s 89C.
119MR BRYDON: I will just double check, Your Honour.
120HER HONOUR: And I also understand that there is a disposal order sought and I will make that order. I take it, Mr Chipkin, there is no opposition to that order being made?
121MR CHIPKIN: That's correct, Your Honour, except for I believe there's a reference there to a mobile phone belonging to Mr Harrison and it's my understanding that Mr Brydon intends to withdraw that from the order, so that the mobile phone will not form part of the disposal order.
122HER HONOUR: Is that correct, Mr Brydon?
123MR BRYDON: That's right. I seek to strike out this number, item No.4, which is a mobile phone. I can have my instructor file an amended copy of that if Your Honour requires it.
124HER HONOUR: That's okay, that's okay, I think we can strike it out and work with what we have got, so thanks for that.
125MR BRYDON: Your Honour, the situation with the licence, I have him as dangerous driving has a mandatory minimum six months; theft of motor vehicle has a minimum at the court's discretion. The fail to stop motor vehicle though unfortunately, Your Honour, is a subsequent offence which as a subsequent offence carries a mandatory minimum 12 months.
126HER HONOUR: All right, and because there is no s85 notice there is no provision to backdate that, it has to be from the date of sentence.
127MR BRYDON: I think that's right, Your Honour, unfortunately.
128HER HONOUR: All right, so Mr Harrison in terms of your driver's licence, I've got no discretion about it. I have to disqualify you from obtaining a licence for 12 months in relation to failure to stop. I also disqualify your licence for six months in relation to the dangerous driving and three months in relation to the theft of motor vehicle, but I will order that they run concurrently so that will be 12 months before you are able to make arrangements re your licence. And it might be that that could involve a bit of a process, I am not sure. You might need to do some courses and things but I will let you investigate that.
129So Mr Harrison, do you understand what I have done?
130OFFENDER: Yes I do, Your Honour.
131HER HONOUR: All right. Can I thank counsel very much for their commitment to this not only in the very thorough submissions that I received but also in attending , the deferral reviews, so I thank you very much for that. And also Sally-Anne, thank you as well for your ongoing support and Mr Harrison, I hope this will provide a mechanism for you to be able to make some sustained change..
132OFFENDER: Thank you very much, Your Honour.
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