Director of Public Prosecutions v Harrison
[2023] VCC 1308
•25 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
KOORI COURT DIVISION
CR-22-00073
CR 22-00075
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHELENA HARRISON |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 May 2023 | |
DATE OF SENTENCE: | 25 July 2023 | |
CASE MAY BE CITED AS: | DPP v Harrison | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1308 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Koori Court Jurisdiction – Plea of guilty – Armed robbery – Possession of a drug of dependence – Application of Bugmy – Application of Verdins – Intellectual disability – Progress on bail
Cases Cited:Bugmy v The Queen [2013] 249 CLR 571; R v Verdins & Ors [2007] 16 VR 269
Sentence: 18-month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Caruso | Office of Public Prosecutions |
| For the Accused | Ms J. Dodd | Victoria Legal Aid |
HIS HONOUR:
1Ms Harrison, you have pleaded guilty before the Koori Court in May this year in relation to an indictment containing two charges of armed robbery and a charge of possess a drug of dependence.
2
You have admitted a criminal record which largely disclosed shop steals and
non-compliance with orders.
Circumstances of Offending
3The facts of the offending are set out in Exhibit A of the Summary of Prosecution Opening for Plea. I do not propose provide a detailed summary herein. The Summary of Prosecution Opening for Plea forms part of these reasons for sentence.
4The first of the armed robberies was at 2 June 2021, around 9 am. You were in the cosmetics aisle at Coles at Northland Shopping Centre and you had been observed by a manager there in the aisle who formed the view that you were taking something you were not entitled to. You produced a kitchen knife, you said, 'You can't stop me, I'm pregnant'. You threatened that person. He kept a safe distance, from about 20 metres, and he followed you as you left from the store with stolen items making no attempt to pay for those items that were in your basket. You emptied the basket into a Coles shopping bag and left the location on foot. That is the first charge of armed robbery.
5You were arrested that morning. You were found to be in possession of 1.6 grams of cannabis and approximately 0.1 grams of methylamphetamine. You were on bail at the time of that offending and one of the charges before me in addition to that possession charge is a relevant summary offence of committing an indictable offence whilst on bail.
6
On 8 October 2021, you went to a Dan Murphy's bottle shop in Bundoora.
You had placed a bottle of Jack Daniels bourbon whiskey in a satchel bag you were carrying. A staff member approached you. As you approached the front of the store you realised you had been observed, and you produced a 10-centimetre knife and told the staff member not to touch you and exited the store, while still holding the knife out in front of you. That is Charge 3. At the time of that offending you were on bail of course, and that is the second relevant summary offence.
7The maximum penalty for armed robbery, is 25 years' imprisonment. There is also a possession of cannabis charge, a rolled up charge involving methylamphetamine and cannabis. In relation to cannabis, the maximum will be not more than five penalty units. Methylamphetamine, clearly for your own use, the maximum penalty is 30 penalty units and one year imprisonment. Of course, I do not propose to impose imprisonment.
Procedural History and Gravity of Offending
8You were in custody in relation to those matters for a total of 23 days, I will not go through what those dates were. But since the commission of those offences, you have been before this court, in one way or another on a number of occasions, the first being when there was an application to revoke your bail early last year. And there was another application for revocation of bail, the prosecution were very understanding in relation to those matters, as was this Court and we were trying to get you to a Koori Court sentencing conversation.
9There were barriers to you feeling comfortable in the courtroom, that was clear to me, and also complications in your life. Your life was in turmoil and a number of the reasons for that turmoil are set out in the Defence Submissions on Sentence dated 28 December 2022. Of particular relevance to the commission of the offences it was pointed out to me in submissions that at the time of the Coles armed robbery you were pregnant, and there was what is called an ‘unborn child report’ made to the Department in April. And the offending occurred after you were advised of what is referred to as ‘pre-natal child protection intervention.’
10
The armed robbery at Bundoora Dan Murphy's occurs shortly after your children were taken into the care of the Department. Your twins were born in
August 2021.
11The Department advised that after the twins were discharged from hospital, there had been an application for an interim accommodation order to the maternal great grandmother and that application was successful on 18 October 2021. It was submitted to me that the escalation of your behaviour should be viewed in the context of lived experience and the trans-generational trauma related to institutional intervention.
12I am not going to delve into lengthy detail in relation to that disadvantage and what underpins that trauma in your life, and further intergenerational trauma, I will touch on some aspects of it, but child removal has been an experience that has directly affected you in your infancy, in childhood years. Time spent in residential accommodation, Child Protection, foster care, kinship care. Your mother's experience had some of those same features, many of those same features occur throughout your wider family and historically in your family. Stolen generation and child removal is a traumatic feature that has occurred in your wider family history, associated traumatic features of alcohol and drug abuse, and family violence are also features of your immediate experience but also the wider family experience and community experience.
13When the matter was first listed for a Koori Court plea in May of last year, you failed to appear. You later spent some time in custody on unrelated matters, which ended up on my reckoning being about four months in custody. And that was from September last year until the end of January this year. That period included being transferred to Thomas Embling Hospital on 7 November last year where you were diagnosed with schizophrenia and you were subject to a secure treatment order. Eventually you were granted bail in the Supreme Court on 30 January, and things have improved since then.
14
I have received a number of supervised bail reports. I will not exhibit all of them,
I have exhibited the most recent one. I received reports dated 31 January 2023, , 20 February, 3 March and the most recent one being 18 July.
15Your progress on bail has not been without incident, but as Ms Dodd has said this morning, you are in the best place and are the best supported that you have been over the time that I have been dealing with you in this court, and that is to the credit of your support workers, who are here today, but also to your credit for your level of engagement. I will not set out in detail the length and breadth of that support.
16Your Koori Court plea hearing proceeded on 15 May this year and Elder Aunty Jacqui Stewart spoke to you on that day. You expressed your remorse for your offending to Aunty Jacqui. You expressed it in clear terms and I accepted that your participation in the sentencing conversation, and also that expression of remorse, was genuine.
17
Submissions have been made by Ms Dodd on your behalf in relation to the offending and the circumstances of it; the quantum of the theft, the offending was unsophisticated, spontaneous and reactionary, there was no attempt to conceal your identity, no application of force, it was of short duration with no
co-offenders. I accept all of those matters. These offences were an escalation of what your history of shop stealing indicates. They were really shop steals whilst armed, which of course amounts to an armed robbery, and you faced up to that and accepted the consequences.
Personal Circumstances
18
I accept the matters personal to you set out in the defence submissions dated
28 December last year.
19You are still a young woman, a Gunai Kurnai , Dja Dja Wurrung and Yorta Yorta woman and a young woman who is, as has been noted, in all the hearings to date, and I made plain again today, a young woman with complex needs and vulnerabilities.
20
I am not going to go into detail in relation to the trauma that you have experienced in your life, these matters are set out in relation to the violent death of your father when you were very young. Your mother's circumstances, what then became you and your sister's circumstances, which was a childhood characterised by abuse and neglect as I have noted, foster care, kinship care, Child Protection, homelessness, a drift into drug use at a very young age and suicidal ideation,
self-harm from the tender age of eight. Attempted drug overdose, swallowing sharp objects, tying ligatures around the neck, superficial cuts to the body.
21
These self-harming behaviours escalate in times of extreme stress and in custodial environments. Before me, was Exhibit 2, the neuropsychological report of
Dr Laura Scott and I accept the matters contained therein, including the cognitive assessment. Of course, there's been a statement of intellectual disability before me as well throughout and that diagnosis was made when you were a child and continues to apply of course.
22I was told you began misusing inhalants at the age of 11, cannabis at 12, methylamphetamine at 13. You have reported that you had used heroin from 13 as well. There have been other traumas that I am not going to go into detail in, in relation to your life. It suffices to say, that I accept that your childhood and formative years have shaped you and the impacts of the trauma you have experienced and the effect on you, particularly given the cognitive issues and in relation to the application of the Bugmy v The Queen principle, it is fully engaged with full effect.[1]
[1]Bugmy v The Queen [2013] 249 CLR 571
23I was told at the plea hearing that the support services available to you, were Arcadia Specialist Support Coordination, Kelly Oak Family Services, Victorian Aboriginal Child Care Service, VAHS and Youth Justice, and I am not going to go into chapter and verse about those matters. The exhibits are before me. Exhibit 3, the Arcadia letter, Exhibit 4 is a letter from Kara Barker from VACCA, there was an updated letter in January also. Connecting Homes, you have had support from them in the past as well as with Lisa Zammit. Tracey Durstan has been the provider of great support for you as well.
24Your children, your twins, Janita and Kai are currently subject to interim accommodation orders. I understand that reunification plans are something that you are working towards. I accept the matters contained in the most recent bail progress report, particularly this statement, that you continue to engage with Youth Justice on a weekly basis, and are currently engaging well with your professional supports.
25During supervised bail periods, you have been caring for your sister Janita, who has been residing with you at your property. Janita’s circumstances are known to the court and I accept the writer of the bail progress's report that in her assessment, you've been a responsible carer for Janita and in turn Janita has been a positive influence on you and you have refrained from substance use since caring for your sister, that's a positive that we hope will continue.
26Kai and Janita are subject to the family reunification order and are currently in foster care and Ms Karoutsos, Child Protection Practitioner has reported that you are able to have access with them on a weekly basis. The extensive care team has noted, and Ms Dodd's raised again this morning, that referrals to Odyssey House will be considered when the optimum time for you to take up that opportunity arises.
Other Matters in Mitigation
27In relation to other matters in mitigation, the plea of guilty provides you with significant mitigation, being in the middle of the pandemic as it was. I also take into account that you did spend 23 days in custody in relation to this matter which was at a time when the pandemic restrictions in custody were still at their height.
28I also accept the application of the R v Verdins principles and I note that these matters are accepted also by the prosecution.[2] Very helpfully the prosecution's sentencing submissions make the submission, that I accept, that rehabilitation and community protection are at the forefront of the sentencing exercise. I am satisfied that given the progress you have made, over the past 18 months in effect, I say 18 months because in one way or another, you have been before me on a regular basis and I have been getting updated about your progress and about the supports available to you for an 18 month period.
[2]R v Verdins & Ors [2007] 16 VR 269.
29I take that progress into account and supports available to you, but particularly given your complex needs, and complex background, I have concluded that the appropriate disposition, having regard to the need for general deterrence, in particular the need for community protection, specific deterrence in your case, but also your prospects of rehabilitation, that it is appropriate to impose an aggregate sentence in relation to the matters before me, given their connection on the indictment and the obvious connection with the relevant summary offences. And that aggregate sentence will be an 18-month Community Corrections Order.
30I have considered carefully what the conditions should be of that Community Corrections Order and I have concluded that it makes sense for me to accept the submission of Ms Caruso and Ms Dodd this morning, that we will keep faith with the current program and I will impose an 18 months Community Corrections Order with the condition of supervision and also a condition that you abide by the justice plan. Yes, Ms Caruso.
31MS CARUSO: Thank you, Your Honour, just a concern about the drug charge. Cannabis isn't - the cannabis charge that was alone isn't available for a Corrections Order.
32HIS HONOUR: Is - - -
33MS CARUSO: A Corrections Order has to be five penalty units or more.
34HIS HONOUR: Does it, yes.
35MS CARUSO: I know it's a rolled-up charge but our suggestion is that Your Honour prove it to be a concern.
36HIS HONOUR: All right. Thank you.
MS CARUSO: That's the concern, I know it was rolled up with methamphetamine which is available - - -
37HIS HONOUR: No, look it's very minor, look even with the methamphetamine it is very minor.
38MS CARUSO: It is.
39HIS HONOUR: But it's clearly own use. Thank you, Ms Caruso. But I'll start that again in relation to the sentence itself. The reasons remain the same.
Sentence
40I’ll impose an 18 months Corrections Order, so that starts today. The conditions are supervision from Corrections. Now your support workers can help liaise and explain how that’s going to work. The other condition is the justice plan.
41And so that will be, the things we put in place and provided for you in terms of any assessments or referrals that need to be made to help keep you on the path you are on now. The court is imposing this 18 month order in the expectation that you can get through the next 18 months supported by this order, but really supported by your current care team and continue on the path you are on. Not reoffend, attend any appointments you have to attend and we don't see you back here, that would be a great outcome for the court and for you.
42So that's the rationale in relation to this sentence.
43I've got to also state that if you had not pleaded guilty to the charges before me, I would have sentenced you to a combination of 23 days and a two and a half year Community Corrections Order with some hours. I don't think there's any other - is there disposal orders or - - -
44MS CARUSO: There are Your Honour.
45HIS HONOUR: Yes, I'll make the disposal orders sought.
46I don't need to make a declaration but it's noted that there is 23 days that have been spent in custody in relation to this matter, if that ever needs to arise. Anything else Ms Dodd?
47MS DODD: Nothing Your Honour it's all good.
48
HIS HONOUR: No. Ms Caruso, nothing else of - all right. Well, what's going to happen now Shelena is that Corrections Order's going to be printed off, I think there might be two of them. Look I've just realised Ms Caruso got up and then
I went and - I was going to say something different and I didn't say it at all.
What I should make clear is, I'm imposing an 18 month Community Corrections Order, with the conditions I've stated in relation to Charges 1 and 3 on the indictment, on the relevant summary offences. Charge 2 on the indictment which is the possession charge, I find proven and dismiss or discharge, is it discharge or dismiss? What do I - discharge?
49MS CARUSO: Just choose a word.
50HIS HONOUR: Discharge I think it is.
51MS DODD: Your Honour discharge is with a conviction, dismissal's without a conviction, that's really the only large difference between the two.
52HIS HONOUR: Yes, right. Well look I'll dismiss without conviction, given the quantities involved.
53MS CARUSO: And s76 is - - -
54HIS HONOUR: Thank you. Yes, I'll just stand down for a couple of minutes. Because the relevant summary offences are different case numbers, actually it will be two Corrections Orders, they're both the same, and they'll run the same, effectively, there's only one, Ms Harrison only needs to have in mind that there's one Correction Order, but obviously the parties know that were actually two she needs to sign, because of those different case numbers. I'll just stand down briefly.
55
All right, I've got the orders. I'll sign the Community Corrections Order, they're duplicates, and clearly there's two of them from the - sorry, I've just got to do them again. All right, thank you. All right, I've signed each of these
Ms Harrison. Now, you'll be asked to sign them and consent to the order. And
Ms Dodd can have a look at it if she wants. There's just the two conditions, supervision and justice plan. As I said there's two orders because of the breakup of the charges, but it's effectively practically speaking, one order. And it'll run for 18 months.
56And I've got to tell you Shelena that if you don't comply with the order, if you don't do what's required of you on the order then you can be brought back here and I'll have to deal with you in relation to that. So, look just keep going the way you're going, it's really good to hear that things are probably the most stable they've been for you, for a couple of years at least. So, well done, keep doing the work.
57OFFENDER: Yep.
58HIS HONOUR: And thank you very much Ms Caruso for your involvement throughout this entire matter, and you too Ms Dodd thank you very much it's - and but in particular thank you to the workers as well too, it has been a long and difficult path, but it's really good to see that you're here and doing well. So, we'll adjourn the court.
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