Director of Public Prosecutions v Harrison

[2023] VCC 1914

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

KOORI COURT DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01418

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANK HARRISON

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2023, 16 October 2023
DATE OF SENTENCE:	20 October 2023
CASE MAY BE CITED AS:	DPP v Harrison
MEDIUM NEUTRAL CITATION:	[2023] VCC 1914

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:              Home invasion – Common law assault – Koori Court jurisdiction – Plea of guilty – Category 2 offence – Substantial and compelling circumstances that are exceptional and rare – Application of Bugmy principles – Application of Verdins principles – Progress on CISP bail and rehabilitation – Intellectual disability and mental health

Legislation Cited:      Sentencing Act 1991

Cases Cited:Bugmy v The Queen [2013] 249 CLR 571; Fariah v The Queen [2021] VSCA 213; DPP v Lombardo [2022] VSCA 204; R v Verdins [2007] 16 CR 269

Sentence:                  Total effective sentence of 168 days’ imprisonment in combination with a two-year Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Stephanides	Office of Public Prosecutions
For the Accused	Ms H. Anderson	David Barrese & Associates

HIS HONOUR:

1Frank Harrison, you have pleaded guilty in the Koori Court before me to home invasion and common law assault.  The maximum penalty for these offences is 25 years' imprisonment for home invasion, and five years' imprisonment for common law assault.

2You have admitted relevant prior convictions.

3You were 50 years old at the time of your offending and you are now 52.  Your alleged co-offender is your nephew who was 30 years old at the time of the offending.  He is now 32.

4The circumstances of your offending are set out in the summary of prosecution opening which was Exhibit A on the plea and which forms part of these reasons for sentence.

5

Your victim in this matter is Lukas Power.  He was 39 at the time of the offending and lived in a unit on Tyler Street, Preston.  Your co-offender had known

Mr Power for several years and through him, Mr Power met you.

Circumstances of Offending

6At approximately 10.00 pm on 2 January 2022, you and your co-offender attended your victim's address in an IZUZU D-Max Ute.  Both you and your co-offender had hammers, which you hid behind your backs out of view of the door as your co‑offender knocked on it.

7Your victim's stepson Jayden Robinson went to the front door to see who was there.  When he opened it, your co-offender walked straight into the house with you following.  He attempted to stop your co-offender as he came in, by pushing him briefly, but he stopped as soon as he noticed the hammer in his hands.

8You and your co-offender walked into the loungeroom.  Jayden went upstairs and told his brother and sister to stay in their rooms.  Jayden then stayed in the stairwell.

9Mr Power asked you, 'What the fuck are you doing?'.  Your co-offender told him to come into the loungeroom, where you both made him sit on the couch.  Mr Power did as he was told, recognising both you and your co-offender.  Your co-offender stood in front of Mr Power while you stood a short way behind.  You both had your hammers out in clear view of Mr Power.

10

Your co-offender asked Mr Power to show him a contact in his phone, which

Mr Power attempted to do, but could not because he did not have that person as a contact.

11You then stepped forward and asked Mr Power why he was not returning his calls and had blocked your number.  Before Mr Power could respond, you hit him with the flat top of the hammer above his right eye, causing instant pain and bleeding.

12Your co-offender attempted to calm you down while you baulked at Mr Power as though you were going to attack him with the hammer and you said 'You're lucky I didn't smash you in the temple, you fucking dog'.

13You then left, stopping to use the hammer to smash the CCTV camera on the porch.  Your co-offender followed you outside and you both left in the IZUZU Ute.

14Mr Power's partner and a neighbour in the area both called the police.  Police attended along with an ambulance.  Mr Power was taken to hospital for his injuries. He had suffered a cut above his right eye, which resulted in swelling and bruising.  He was treated overnight and released the next day.

Arrest and interview

15Two days later, you were arrested for the offending against Mr Power at your address.  You were taken to Preston police station for interview.  During the course of the interview, you answered no comment to some questions and denied the charges in other answers.

16You were remanded in custody on 4 January 2022 and bailed on 21 June 2022 (approximately five and a half months imprisonment).

Objective Gravity of Offending

17Turning to the objective gravity of the offending.  The seriousness of your offending is reflected in the maximum penalties, being 25 years' imprisonment for home invasion and five years' imprisonment for common law assault.

18There are some serious aspects to your offending.  The home invasion was confrontational, motivated by a perceived grievance with your victim.  You and your co-offender brought hammers to the property.  Although there is no indication that your victim had any particular fear of you or your co-offender, it would have been a terrifying experience.

19Whilst there was some pre-planning involved, it was not a sophisticated home invasion.  Your offending was motivated by a perceived wrong by the victim.  You were in the property for about one and a half minutes.

20I consider that the home invasion falls within the low to mid-range of the offence in terms of its seriousness.

21In relation to the common law assault, your victim did not pose a threat to you in any way when you assaulted him with the hammer.  The attack was not prolonged, but nevertheless, it resulted in swelling, bruising and bleeding that was treated overnight in hospital.

22I have accepted that matters personal to you, such as your cognitive functioning, your cognitive processing skills, impulse control challenges, emotional regulation deficiencies, and a history of trauma, disadvantage and drug use – explain your reprehensible conduct on the occasion of your offending.

Personal Circumstances

23I am not going to go into great detail as to your personal history.  Those matters are set out in detail in your counsel's written submissions (Exhibit 1 on the plea), as well as the neuropsychological report of Laura Scott (Exhibit 2) and the psychiatric report of Dr David Trainor, which I ordered following the sentencing conversation on 13 June.

24You are a proud Wamba Wamba man through your father's line.  You were born in Morwell and raised in Queensland.  You are the eldest of three children and you also have five half-siblings.

25Your early childhood was traumatic.  You experienced physical, emotional and sexual abuse as a child.  Your father was an alcoholic and you were both exposed to and a victim of domestic violence from a young age.  In her report, Ms Scott wrote:

'Mr Harrison reported he was often left unsupervised when he was as young as 3 years old.  He recalled burning his hand at the age of 3 or 4 while trying to pull apart a bullet to make a bomb.  Mr Harrison was exposed to frequent physical discipline at home and at school, where he would be struck with the belt and the cane.  He was a witness and a victim of domestic violence.  He also acknowledged multiple episodes of sexual abuse throughout his childhood prior to the age of 13.  It appeared to be the first time Mr Harrison had disclosed this experience and he did not wish to discuss it further.  Mr Harrison later stated 'a lady pushed me into a tub of boiling hot water' when he was a toddler.  He said the woman was trying to give him a bath.  It is unclear if he sustained any significant burns from this incident'.

26Your difficult childhood was also discussed in the psychiatric report of Dr Trainor, who wrote at paragraph 18:

'He felt neglected in childhood and was often left unsupervised.  He never felt like he was welcome.  He reported that his maternal stepbrother sexually abused him at aged 8.  He apparently told his mother, who accused him of lying.  He still sees his stepbrother often and thinks about calling the police to report what happened.  His sister was taken into the care of the Department of Human Services'.

27At the age of 13, you were asked to leave the family home and spent time living in refuges.  At one stage, you returned to your home to find that your family had moved without informing you.

28You began drinking alcohol at age 11, using cannabis daily at age 16, and using methamphetamine aged 15. I was told you began injecting a year later.

29You left school at age 14.  You told Dr Trainor that you disliked school, finding it difficult to pay attention and learn at the same speed as other children.  You were often truant and were expelled from several schools for what you described as 'fighting and not listening'.

30You have had several jobs since leaving school, including working in a sawmill, an abattoir and with engines.  You told Dr Trainor that your longest period of employment was 12 months and you last worked four years ago.  You were homeless for 18 months after losing your job during the COVID-19 pandemic.

Mental Health and Intellectual Functioning

31Ms Scott assessed you as having an overall IQ of 64.  She placed your IQ in the extremely low range, poorer than 99% of the general population.  In her report, she opined:

'Mr Harrison's cognitive impairments are likely due to various factors.  It is difficult to draw clearly defined diagnostic conclusions considering the extent of the neurological history.  Nonetheless, I strongly suspect he has a neurodevelopmental disorder (likely mild Intellectual Disability).  His FSIQ score of 64 is in the range for a mild ID and he reportedly had early difficulties acquiring language and literacy skills, poor academic achievement, social and behavioural problems from early primary school onward.  He may have been exposed to alcohol prenatally, which could have caused his cognitive impairments.  Any existing difficulties would have been exacerbated by his unenviable childhood in which he was exposed to significant trauma (physical abuse, sexual abuse, neglect) and disadvantage (poverty, transience, parental alcoholism, domestic violence).  His level of adaptive function has been low across his life, though this was difficult to objectively assess in the context of significant psychosocial disadvantage'.

32She went on to write:

'On balance, I also suspect Mr Harrison sustained an ABI due to his extensive history of alcohol use (over 15 years daily drinking, 20-30 standard drinks per day) and amphetamine/methamphetamine use (almost 25 years of injecting 1 gram most days).  His impaired rate of new learning is not typical for a person with a mild intellectual disability.  I suspect his ABI resulted in poorer executive functions and new learning over time.  The prominence of this has likely diminished over the past 10 years due to remaining drug and alcohol use.

Lastly, Mr Harrison reports several symptoms of Post-Traumatic Stress Disorder (PTSD), including re-experiencing, avoidance, negative thoughts and emotions, poor sleep, poor concentration and irritability, which began after he and his son were assaulted in January this year. There is also a history of significant childhood trauma.  I suspect that many of the cognitive and behavioural changes he reported on interview, are likely the result of untreated psychiatric illness.  Referral for psychiatry review and management is strongly recommended. Improvements in cognition and the level of daily function would be expected if his mental health could be better treated'.

33Following the sentencing conversation, I ordered a psychiatric report.  That was prepared by Dr Trainor and received by me on 13 September 2023.

34In his report, Dr Trainor wrote about the impacts your traumatic childhood has had on your mental health.  At paragraph 59, he wrote:

'By his account, Mr Harrison's childhood was disturbed by a chaotic environment, poor attachments to his parents, neglect, sexual abuse, being witness and subject to physical abuse, periods of homelessness, and a feeling that he was not wanted or loved.  These childhood experiences likely resulted in chronic difficulties with impulsivity, emotional and anger dysregulation, lower levels of trust in others, an impaired ability to empathise, a more fragile sense of self and sensitivity to criticism, and consequent problems with interpersonal relationships.  As per the International Classification of Diseases (ICD-11), Mr Harrison would meet criteria for a Personality Disorder, with traits of negative affectivity, dissociality, and disinhibition.  These character traits would likely have been exacerbated by his suspected mild intellectual disability and later in life, his acquired brain injury'.

35You also told Dr Trainor that you had witnessed two traumatic events: the suicide of a woman on a train, and the physical assault of your son by a group of men. The symptoms you have experienced following these events, in Dr Trainor’s opinion, meet the DSM-5 criteria for Post-Traumatic Stress Disorder (PTSD).

36In his report, Dr Trainor opined that your presentation and history were:

'Not suggestive of a chronic psychotic disorder, such as schizophrenia, although it is likely that [you have] experienced previous episodes of substance abuse induced psychosis'.

37Although you reported that you have ceased all alcohol and substance use except cannabis use since the offending, Dr Trainor opined that you meet the DSM-5 criteria for opioid use disorder, stimulant use disorder, and gambling disorder in sustained remission, as well as cannabis use disorder.

Participation in Koori Court

38You participated fully in the sentencing conversation.  You were challenged by Elder Aunty Yvonne Luke and respected person, Helen Archibald.

39You spoke about the difficulties you have faced since the attack on yourself and your son.  You spoke of your desire to turn your life around.

40Your son also participated in the sentencing conversation.  I am satisfied that generally speaking, you and your son are positive influences on each other.  Your protective feelings toward your son were at the heart of your motivation for offending and your maladaptive coping mechanisms.

41Overall, I was impressed by your engagement in the sentencing conversation and your genuine willingness to remain abstinent and free from offending.

42You spoke about your interest in cultural artwork and copies of your artwork were provided at the plea.  You are dedicated to your artwork and it is therapeutic for you.

43I take into account your participation in the Koori Court conversation and the exposure of your vulnerability, and the confrontation and the challenge that is inherent in the process.

CISP Bail and Rehabilitation

44After your initial remand in custody, you were recommended for the Court Integrated Services Program (CISP) and entered into CISP bail on 21 June 2022.

45You successfully completed the CISP bail program.

46You engaged in drug and alcohol treatment, mental health treatment, ABI and cognitive impairment assessment, family and anger management counselling, and CISP case management meetings.

47You demonstrated a positive and continuous engagement throughout the supervised bail program which concluded on 24 February 2023.  I consider that this is a significant matter given the background and cognitive matters detailed in these remarks previously under mental health and intellectual functioning.

Further report Laura Scott

48I received an updated report from Laura Scott dated 14 August.  Ms Scott's findings assist in providing insight into your offending and assessing your culpability.

49In the updated report, I accept in particular what Ms Scott opined in regard to, under paragraph 2 on pages 6 and 7 of her report.  In particular, the following:

'Mr Harrison has a disorder of impulse control.  He is highly impulsive and struggles to think through his actions.  His reduced planning and organisational skills means he struggles to consider the future consequences of a given action.  For example, taking drugs while recovering from a possible head injury, taking drugs when feeling angry, going to visit his attacker the day after the assault.  His thinking is very rigid and he becomes easily stuck on a certain thought or action.  For example, seeking retribution for past grievances.  This would make it difficult to weigh up various alternatives and make a reasoned decision about how to act in the heat of the moment. 

Clearly Mr Harrison was highly vulnerable on the day of offending.  He was feeling physically unwell and experiencing significant psychological distress.  He was very worried about his son who was brain injured as a result of an assault the day prior.  He was unable to visit his son due to his vaccination status, which he felt highly resentful about.  His cognitive impairments already increase his vulnerability to external influence and this would have been significantly exacerbated on this day.  In this context, he would have been particularly vulnerable to suggestions from others, for example, to use drugs, to go and visit his attacker.  There was an impression that Mr Harrison's nephew played a significant role in influencing his choices on the day. 

All of Mr Harrison's impairments would have been exacerbated by the effects of intoxication with GHB on the day of the offending'.

50

I accept those matters and I further accept that at page 8, the top of the page there,

Ms Scott provides a basis for finding that your experience of further custody would be harsher than for others due to the significant risk of a deterioration in your mental state if you were re-incarcerated.

51I accept this matter.  It has considerable weight in your case.

52Ms Scott opines that you would benefit from the opportunity to remain in the community supported by NDIS.  You have not re-offended whilst on bail.  This is a significant matter in your favour.  You are in stable housing.  You continue to immerse yourself in your art and this activity has great therapeutic and protective benefits for you.

Other Sentencing Considerations – s5(2H) of the Sentencing Act

53Charge 1 on the indictment, home invasion, is a Category 2 offence which engages the mandatory sentencing provisions under s5(2H) of the Sentencing Act.  The provisions compel this court to impose a custodial sentence and fix a minimum term of imprisonment.  They also prohibit this court from imposing a non-custodial order, even as a feature of a combination sentence.

Exceptions to mandatory sentencing

54The mandatory sentencing provisions include a number of exceptions. Relevantly in this case, defence submit that s5(2H)(e) is engaged, in that 'there are substantial and compelling circumstances that are exceptional and rare and that justify not [imposing a term of imprisonment].' The exception contained in s 5(2H)(e) came into its current form in 2018, when the words 'exceptional and rare' were added.

55When making the 'evaluative judgment'[1] as to whether such circumstances exist, I must regard general deterrence and denunciation of your conduct as having greater importance than the other purposes set out in section 5(1); and must give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence; and must not have regard to—previous good character (other than an absence of previous convictions or findings of guilt); or an early guilty plea; or prospects of rehabilitation.

[1]        There is no “…burden on an offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare”, see [24] in Fariah v The Queen [2021] VSCA 213.

56

I am also required to have regard to Parliament's intention as expressed in

s5(2I)(a) of the Act – the custodial order should ordinarily be imposed for a Category 2 offence.

57When making the evaluative assessment of whether there are substantial and compelling circumstances that are exceptional and rare in this case, it is necessary to have regard to the sentencing considerations applicable to cases of home invasion – since an order to justify not imposing imprisonment, the circumstances would need to surmount those principles.

58In making that assessment, my finding that your commission of the offence falls in the lower to range of the range is a relevant factor.  So too is my assessment of matters personal to you, and circumstantial in relation to the commission of the offence.

59The Court of Appeal in DPP v Lombardo (“Lombardo”) outlined the application of s5(2H) and the exception contained in s5(2H)(e).[2]  The court considered the statutory language and identified two key steps in the enquiry as to whether the exception was satisfied.  Reading from that authority:[3]

'First, the court must identify whether there are substantial and compelling circumstances. This has been interpreted as circumstances that are weighty and forceful or powerful.  The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence.  That is the criterion by which the substance and compulsive force of the circumstances are to be assessed.

The second critical step, if the circumstances are substantial and compelling in the sense described above, asks whether they are also, 'exceptional and rare'.  In our view, this is to be regarded as a composite phrase imposing a single test, rather than as two discrete tests.  That is because the meaning of the words overlap; in particular, 'exceptional' means 'out of the ordinary course, unusual, special', which includes that which is 'rare'…….the two words operate together and each influences the meaning of the overall phrase'.

[2] DPP v Lombardo (“Lombardo”) [2022] VSCA 204

[3] Ibid at [66] – [67].

60The majority in Lombardo also stated the following:[4]

'…[exceptional and rare] refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence …'

[4] Ibid at [71].

61In making the evaluative assessment, I am entitled to have regard to a combination of factors.

62There are many factors personal to you and that also relate to the circumstances of the offence, and that have arisen since the commission of the offence, that satisfy the test in my assessment.  To summarise:

·Bugmy[5] mitigation, due to profound childhood disadvantage and its connection with the drivers of the offending in this case, intertwined as this factor is with other relevant factors, such as cognitive functioning, vulnerability to drug use, maladaptive coping mechanisms and so on.

[5] Bugmy v The Queen [2013] 249 CLR 571

·Mild intellectual disability and possible acquired brain injury.

·Remorse and desire to reform

·Experience of five and a half months of custody followed by genuine steps toward rehabilitation during the period on supervised bail, including engagement with Dardi Munwurro, in the course of that strict bail period.

·Neuropsychological assessment, psychiatric assessment, NDIS support and the availability of Mental Health Area Service Support, leading to stability that exists in your life currently which allows for interventions aimed at continuing your current stability.

·Housing stability.

·Participation in the sentencing conversation.

·Protective factor of your artwork as a connection to culture.

·Plea of guilty.  And I pause to emphasise the plea of guilty rather than the early stage of the plea of guilty.

·Hardship in custody due to (Verdins) considerations.[6]

·My assessment of the circumstances of the offence and the drivers of it and the application of some mercy, given I am satisfied that you are at a point in your life, that you are better able to utilise supports, to avoid offending than you had previously and have reached a watershed moment in your life worthy of the application of some mercy.

[6] R v Verdins [2007] 16 CR 269

63I am satisfied that these factors in combination amount to substantial and compelling reasons, that in the circumstances of this case are exceptional and rare and justify not imposing a head sentence and non-parole period.

64I will impose a combination sentence.

Sentence

65On Charge 1 and 2 of the indictment, I sentence you to an aggregate sentence of 168 days imprisonment, in combination with a two-year community corrections order.

66On that two-year community corrections order, I direct that you perform 100 hours of unpaid community work. 

67That you engage in mental health assessment and treatment as directed.

68That you be subject to supervision.

69Drug and alcohol assessment and treatment as directed.

70Fifty hours of therapeutic services participation can be credited towards the community work. 

71I declare that you have served 168 days as pre-sentence detention. 

72Pursuant to s6AAA of the Sentencing Act, were it not for your pleas of guilty, I would have sentenced you to a head sentence of three years and a non-parole period of two years.  All right, now are there any applications for forfeiture?

73MS STEPHANIDES:  Your Honour, there was an application for a disposal order which I understand is unopposed - - -

74HIS HONOUR:  Yes, I will make - - -

75MS STEPHANIDES:  - - - and the Crown will be seeking those.

76

HIS HONOUR:  Yes, no I have got that here actually, now I can see it.  I always forget to look at those.  Yes, I have got that.  I will sign that.  That disposal order is made.  All right, well do you consent to the community corrections order

Mr Harrison?  Agree to that.  What is going to happen now is we print it off, I sign it and Ms Anderson will show it to you and if you consent to it, you can put your signature on that and then you will be on the community corrections order.  I have to let you know that if you breach that order, you will be back before me for resentence.

77OFFENDER:  No, (indistinct words), Your Honour.

78HIS HONOUR:  All right, we will just get that printed now.  Should I stand down or - all right, I have signed that and we will give you a look at that Mr Harrison. 

79MS ANDERSON:  May I approach the dock, Your Honour?

80HIS HONOUR:  Yes, sure.  All right Mr Harrison, so you will have to report to Corrections and they will tell you what to do from there, stay in touch with them.  Make sure you keep all your appointments that you need to and that you do what is being asked of you otherwise they can breach you and you will be back before me.  So it sounds like you are going quite well at the moment, so just keep that going and you know keep doing your painting and all that sort of thing.  You have got to be mindful of drug use, also getting in stressful situations which might provoke an angry response and how you are going to stop and check yourself from acting in the way you have in the past, which has landed you in gaol.  So just try and keep all that sort of stuff at the front of your mind.

81OFFENDER:  No worries.

82HIS HONOUR:  All right, good luck.  Thank you everyone.  Thank you Ms Stephanides, thank you Ms Anderson.

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