Director of Public Prosecutions v Harrison
[2023] VCC 502
•31 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02179
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY HARRISON |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 March 2023 | |
DATE OF SENTENCE: | 31 March 2023 | |
CASE MAY BE CITED AS: | DPP v Harrison | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 502 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Plea of guilty – Possession of a traffickable quantity of firearms – Possess, use or carry an imitation firearm – Koori Court – Bugmy – Verdins – Worboyes – Covid-19 pandemic; Renzella time.
Legislation Cited: s 3 Firearms Act 1966 (Vic); ss 5, 6AAA, 18, 89A Sentencing Act 1991 (Vic).
Cases Cited:Berichon v The Queen [2013] VSCA 319; Bruce v The Queen [2022] VSCA 100; Bugmy v The Queen (2013) 249 CLR 571; DPP v Basic [2017] VSCA 376; DPP v Gartside [2022] VCC 115; DPP v Harrison [2021] VCC 668; DPP v Roper [2020] VCC 544; Honeysett v R [2018] VSCA 214; Jenkins v The Queen [2022] VSCA 1; Marchei v The Queen [2021] VSCA 58; Powell v The Queen [2015] VSCA 93; Quadara v The Queen [2017] VSCA 260; R v Henderson [2009] VSCA 136; R v Morgan [2010] VSCA 15; R v Renzella [1997] 2 VR 88; R v Verdins & Ors [2007] VSCA 102; Sultan v The King [2022] VSCA 205; Worboyes v The Queen [2021] VSCA 169.
Sentence: Two years and eight months’ imprisonment with a non-parole period of one year and seven months years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | L. Zubreckyj | The Office of Public Prosecutions |
| For the Accused | J. Lavery | Kurnai Legal |
HER HONOUR:
1Ricky Harrison, you have pleaded guilty to one charge of possession of a traffickable quantity of firearms, and one charge of possessing, using or carrying an imitation firearm. You have also agreed to this Court hearing and have pleaded guilty to summary charges of possess prohibited weapon without exemption or approval, possess a controlled weapon without excuse, and possess cartridge ammunition without a licence or permit.
Summary of offending
2At the time of the offending you were a prohibited person under s3 of the Firearms Act 1966 (Vic). You were subject to a Firearms Prohibition Order (FPO) which was served on you on 25 November 2021. The FPO included conditions including but not limited to preventing you from being in possession of any firearms.
3At approximately 1:30pm on 25 November 2021, you were observed by Surveillance Police from the Special Operations Group (SOG) exiting an address located at Unit 2/10 Albert Street, Hastings (the Unit). You entered a black 4WD Jeep registration number 1SM9AL which was parked in the driveway. You remained inside the vehicle in the driveway, for just over an hour. You then re-entered the Unit.
4The SOG cordoned off the premises and at approximately 3.00pm, they requested you come out of the address via loud speaker.
5You ran out a rear door, over a side fence and onto the neighbour’s roof. The SOG officers gave chase. You were carrying a white calico style bag and had a knife hanging from the back of your pants.
6You were ordered by officers to stop numerous times however you continued to run, discarding the bag and separately, one kitchen knife and one smaller knife. Police drew their firearm, pointed it at you and ordered you to stop but you continued to try and escape. You ended up stopping and were arrested. A search was conducted, whereupon police located in your possession a knuckle duster (Summary Charge 3 – possess prohibited weapon without exemption or approval), knife, syringe, black pipe, alcohol swab, and keys to the black Jeep.
7The white calico bag was retrieved from the roof along with a knife in a sheath from the yard by officers. Located in the bag was a loaded sawn off .22 calibre firearm (Charge 1– Possession of a traffickable quantity of firearms) with the serial number erased. The firearm was cleared and it was noted that it had no safety measures.
8The Unit and the vehicle were searched. Located within the Unit in the lounge room, and secreted under the couch was a machete.
9Located in the vehicle were the following items:
(a) Item subject of Charge 1 – possession of a traffickable quantity of firearms:
(i)A homemade long arm shotgun.
(b) Items subject of Charge 2 – Possess/use/carry imitation firearm:
(i)Imitation handgun.
(c) Items subject of Summary Charge 4 – Possess controlled weapon without excuse:
(i)Rambo machete in sheath;
(ii)One meat cleaver;
(iii)One homemade “shiv”;
(iv)One black tomahawk;
(v)One knife with black duct tape on handle in black sheath;
(vi)One knife with black tape in green sheath;
(vii)One small machete; and
(viii)One grey kitchen knife in sheath.
(d) Items subject of Summary Charge 5 – possess Cartridge Ammunition without a licence or permit:
(i)Seven assorted shot gun cartridges;
(ii)One .22 calibre shotgun cartridge;
(iii)One firearm butt;
(iv)Three 303 cartridges; and
(v)One small red cartridge.
10All the items in the car were photographed and seized.
11The firearms were examined by a firearm and toolmark examiner from the Victoria Police Forensic Services Centre (VPFSC). The following items were examined, which included conclusions drawn as to the operational ability of each item at the time of seizure:
(a) Item 1: Homemade shotgun – capable of discharge (Charge 1);
(b) Item 4: Imitation Handgun – not operational (Charge 2);
(c) Item 5: Homemade device - not a firearm ; and
(d) Item 6: Sawn off single shot rifle – capable of discharge (Charge 1).
12On 25 November 2021, you were arrested and conveyed to the Somerville Police Station where you gave a no comment interview.
Gravity of the offending
13I have had regard to the maximum sentences that apply in respect of each charge.
14The offences of possession of a traffickable quantity of firearms and possessing, using or carrying an imitation firearm both carry a maximum penalty of ten years’ imprisonment. The maximum penalties reflect the gravity of the offences and the purpose of ensuring public safety and peace.[1]
[1] DPP v Basic [2017] VSCA 376, [104].
15In assessing the gravity of your offending on Charge 1, I take into account that the homemade shotgun and sawn off single shot rifle, the subject of the charge, were found to be capable of discharge and that the rifle was loaded when it was found by police without any safety measures.[2] The imitation firearm, the subject of Charge 2, was not operational. I note that both the shotgun and imitation firearm were located in your vehicle following your arrest.
[2] R v Henderson [2009] VSCA 136, [214]; Powell v The Queen [2015] VSCA 93, [26].
16In assessing the gravity of Summary Charge 4 I take into account that the charge concerns a range of prohibited and controlled weapons, including a shiv, a tomahawk and various knives.
17I accept the prosecution submission that you were the principal and only offender and that your moral culpability for the offending is high. I also accept that your moral culpability is reduced by the application of Bugmy[3] principles, which I will return to shortly.
[3] Bugmy v The Queen (2013) 249 CLR 571.
18The prosecution submit that this Court should sentence you on the basis that your possession of firearms was associated with criminal activity. The prosecution outlines, at paragraph ten in its written submissions, the factors relied upon to support this conclusion, including that the SOG were present at the address in response to information that you’d been in possession of a firearm on 6 November 2021; you tried to evade address; a number of prohibited and controlled weapons were located in your vehicle, along with ammunition; the rifle was homemade, with serial number erased and was loaded and operational; you hadn’t proffered an explanation for possessing these items and you have a lengthy criminal history.
19I have considered the matters relied upon by the prosecution individually and in combination. While the SOG may have attended your address in respect of information received, it is not the basis of a charge before the Court, and I am unable to draw any confident conclusions arising from this assertion. As for the nature and location of items seized, I do not consider that they support an inescapable inference, or an inference beyond reasonable doubt, that your possession of these items was associated with criminal activity. As for your failure to proffer an explanation for your possession of these items in your police interview, as noted in Sultan v The King this does not, and could not, support such an inference.[4]
[4] Sultan v The King [2022] VSCA 205, [47].
20I could only make, and rely on, such a finding, as an aggravating circumstance, if satisfied, beyond reasonable doubt, that the possession of the firearms was for a criminal activity or a specific criminal purpose. On the material before me I am not so satisfied.[5]
[5] Ibid; Berichon v The Queen [2013] VSCA 319.
21You told the Court that you had these items in your possession for your protection as you had been stabbed and shot at in the past. This does not excuse your offending. I also note that you have relevant priors for firearm related offending, including your appearance on 19 May 2021. On that occasion your offending was aggravated by you brandishing and using[6] the loaded firearm when police were trying to arrest you.
[6] In the way outlined in the summary for that offending, see paragraph [12]-[19] of the Sentence of 19 May 2021.
Plea of guilty
22You entered a plea of guilty at an early opportunity and I accept that your plea warrants a substantial discount in sentence. Your plea of guilty is important for its utilitarian value and there will be a greater amelioration of sentence in accordance with the Worboyes[7] principles. I also accept that your early plea of guilty is indicative of remorse and an acceptance of responsibility on your part.
[7] Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
23You are 39 years of age, born in November 1984 in Traralgon. You were 37 years of age at the time of the offending. Your biological parents, Iris Carter, and Graeme Harrison are both of Indigenous heritage. Your parents are historically from the lands of the Gunaikurnai people, and the Lake Tyers Mission. You have seven siblings.
24Your father passed away 16 years ago due to complications related to diabetes. Your parents struggled with substance-abuse issues due to the impacts of intergenerational trauma and dispossession. Your mother currently lives in Moe, but is unable to visit you regularly while you are in custody due to geographical distance and her complex physical health problems.
25You were separated from your parents at the very young age of three months. You were then placed with a non-Aboriginal foster family who raised you. The link with your siblings, parents, culture and community was effectively severed at this point. As raised by your Counsel, I accept that it has been well documented that the removal of Indigenous children from their families has had devastating, life-long and far-reaching consequences.[8]
[8] See Brining Them Home Report of the National Inquiry into the Separation fo Aboriginal and Torres Strait Islander Children from Their Families of April 1997.
26Your childhood was marred by your lack of contact with your family, culture and community. You were considered to have extreme behavioural difficulties at school and were diagnosed with attention deficit hyperactive disorder before ceasing formal education after being expelled in Year 7 at the age of 13. While you generally speak of your foster parents in positive terms, your housing was often overcrowded and you had no contact with any other indigenous people as a child and were the subject of insidious racism and feelings of exclusion and resentment.
27You have a very limited employment history and you were most recently in receipt of the disability support pension.
28Your reintroduction back into the Aboriginal community has been a difficult one due to being removed from it at such a young age. You describe a constant conflict of identity and feeling like you do not entirely belong to “either world.”
29In addition to the passing of your father, you have experienced many other losses of close family members who have passed away recently. You struggle to manage your grief and loss in a custody environment, where you are denied the opportunity of grieving with your family and community. Most recently this includes the passing of your brother at the very young age of 32. You were transported from prison to attend and participate in his funeral in Morwell on 10 February 2023.
30You have experienced substance misuse problems with drugs and alcohol from a very young age. You have misused substances as a means of attempting to cope with the symptoms of psychological distress depression and dislocation which have afflicted you.
31You have had several intimate relationships that have produced three children. You have three sons, the oldest is ten and the youngest is only a baby, whom you have never met. You look forward to doing so upon your release. Your children are the central focus in your life and provide you with motivation.
32During your more recent assessment with psychologist Ms Megan Rodgers you disclosed experiencing further abuse as a child. I will not detail this here but it is referred to at paragraphs 14-16 of her report. She considers that this new information regarding your experience of trauma and intense shame ‘may contextualise [your] propensity for substance abuse and poor coping skills.’[9]
[9] Exhibit 2, paragraph 16.
33You have a number of relevant criminal priors for firearms related offending in 2021 and assault and weapons related offending between 2003 and 2021. You have received various dispositions for your prior offending, including community based dispositions and terms of imprisonment.
34I take into account your prior criminal history in assessing in particular specific deterrence and community protection.
35On your release from your last sentence, you were unsupported in the community. You were sentenced to a total effective term of two years and 11 months’ imprisonment with a non-parole period. However, at the time of sentence you had already served the entire period of the sentence on remand. You told Ms Rodgers that your housing became untenable and you were homeless. You became very unwell and lost a significant amount of weight. You ‘gave up’ and began using drugs again. You were residing with acquaintances at the house where you were arrested.
Pre-sentence detention
36You have been in custody for this offending since the date of your arrest, being 25 November 2021. In relation to this matter you have served a total of 490 in pre-sentence detention. I also take into account that your period on remand has been during the pandemic and has consequently been more restrictive and onerous.
37It is agreed between the parties that you also have a total of 142 days (a combination of 105 and 37 days) not directly referable to this matter but otherwise ‘unclaimed.’ I take this time into account according to the principles in the case of Renzella.[10]
Factors in mitigation
[10] R v Renzella [1997] 2 VR 88.
Bugmy considerations
38Your history of developmental trauma, grief, displacement, experience of racism, substance abuse, homelessness and instability is thoroughly canvassed in the psychological material tendered on your behalf. There is no dispute between the parties that the Bugmy principles are enlivened in your case given your history of deprivation and extreme instability. The case of Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing in and of itself. That is because it is likely that moral culpability will be reduced for someone whose early years have been marked by such disadvantage. The effects of such hardship do not diminish over time and full weight must be given to those matters in sentencing.
39In her report of 2021 Ms Rodgers states that despite your generally positive report of your foster family, your experience of being placed in care ‘has led to psychological and emotional impacts including low self-esteem, anger, depression, fear, shame and guilt, distrust and difficulties forming and maintaining trust in relationships.’[11] Your childhood was also impacted by your experience of racism and abuse, as recently disclosed. Your transition into adulthood was marked by instability, homelessness, disenfranchisement, declining and poor mental health and substance abuse.[12]
[11] Exhibit 1, paragraph 37.
[12] Ibid, paragraph 40.
40When sentencing you in May 2021 Judge Johns made the following observations, which I adopt:[13]
Aboriginal disadvantage is an inadequate term that is often embraced as a catch-all to refer to factors that are embraced by the Bugmy principles. That term often contemplates exposure to dysfunction or disadvantage in an Aboriginal community. In your case the removal of you at three months at age from your community and culture has had a negative effect upon you, but you have also been exposed as you grew, to cousins and uncles who you describe as, ‘Gaol heads’ and that has also had a negative effect on your experience, and there are the other matters that are referred to by Ms Theocharous that I accept that have just been set out. Your experience sits within the broad descriptive term of Aboriginal disadvantage.
Your experiences of foster care, and periods of custody, are part of a wider Aboriginal experience of higher representation in State care and incarceration that has been part of the colonial legacy and experience of Aboriginal people and remains an indelible stain on the colonial narrative.
[13] DPP v Harrison [2021] VCC 668, [50]-[51].
Mental health
41In her first report, Ms Rodgers confirms you present with a history of trauma, symptoms of depression and anxiety, as well as your long history of auditory hallucinations and previous diagnosis of schizophrenia. Further, she opines that your ‘psychiatric condition is unlikely to be adequately addressed or improved while [you are] in custody and may in fact be exacerbated.’[14]
[14] Exhibit 1, paragraph 43.
42The neuropsychological report and assessment of Dr Evrim March found no clear evidence of acquired brain injury, no intellectual disability and no autism spectrum disorder. In his opinion, while your cognitive status was generally intact you experienced major depressive disorder as well as psychotic symptoms.
43In the most recent report of Ms Rodgers of January 2023 she confirms your diagnosis of depression and anxiety and psychotic and traumatic symptoms.[15] Assessment results indicated that you were experiencing high, and increased, levels of psychological distress and she considered that the increase in symptom severity may be related to your recent disclosure of childhood trauma. She confirms that:
The results are consistent with [your] self-reported symptom experience leading to diagnosis of Major Depressive Disorder, Generalized Anxiety Disorder and Post-Traumatic Stress Disorder as well as psychotic symptoms of unknown genesis and Substance Use Disorder (alcohol and other polysubstance use) currently in remission.
[15] Exhibit 2, paragraph 9.
44Ms Rodgers considers that your symptoms of depression, anxiety, PTSD and psychosis impact your decision making and negatively impact your ability to cope with stressors and make positive decisions. She further states ‘the impact of sentences of imprisonment on Indigenous Australians has been well documented and this is relevant to you, despite your numerous previous periods of incarceration.[16]
[16] Ibid, paragraph 38.
45The prosecution do not accept that the Verdins[17] principles apply and submit that the psychological material can otherwise be given weight under the application of Bugmy. Your Counsel submits that Verdins does apply, in that your psychological conditions mean that a given sentence will weigh more heavily on you than it would on a person in normal health. I take into account as relevant to your personal circumstances the matters referred to in the psychological material concerning your poor mental health and struggles. I also accept, on my assessment of the material, that Verdins, as relied upon by your Counsel does apply in your case and I will take this into account in sentencing you.
[17] R v Verdins & Ors [2007] VSCA 102.
Sentencing Conversation
46You participated in the Koori Court Sentencing Conversation. In assessing the weight to be given to this mitigating factor I have considered a range of matters including your participation in the conversation; the insights you demonstrated; your expressed motivations and intentions to reform. You were questioned and challenged by the Elders which, given your various issues, I accept would have been challenging and confronting. In all the circumstances, taking into account also your prior history and your previous engagement in the Koori Court, I do consider that you actively and genuinely participated in the process.[18] Family also attended in support of you and you expressed a wish to connect with them on your release and also to be a present, active and positive role model to your children.
[18] Honeysett v R [2018] VSCA 214; R v Morgan [2010] VSCA 15.
Prospects of rehabilitation
47Given your prior criminal history and the fact that you had committed this offending approximately five months after your last release from custody, the prosecution submits that the Court should be guarded about your prospects of rehabilitation. In all the circumstances, while you do have prospects of rehabilitation, I accept that these must be viewed as guarded.
48Ms Rodgers considered that you demonstrated some insight into your offending. You also reported having learned from this experience and that you intend to gain skills which will help you access employment in the community on release.[19]
[19] Exhibit 2, paragraph 15.
49You are currently employed as a billet in one of the units, cleaning the windows and doing meals, and you have also completed course certificates which were tendered on the plea hearing. You also have produced artwork that has been displayed and sold through The Torch. You receive monthly suboxone injections which you told the Court is more effective then methadone. In her latest report Ms Rodgers notes that you are not in receipt of any medication or therapeutic interventions despite previous reports recommending thorough assessment and management of your psychiatric health. She states ‘should these factors not be addressed prior to and upon release, [you] are likely to experience poor outcomes in the community.’ She recommends psychosocial supports and consultation with a doctor or psychiatrist to clarify your diagnosis and engage in treatment. She concludes at paragraph 42:
Should Mr Harrison receive substantial support to establish himself in the community with housing and prosocial supports, meaningful activities including employment as well as appropriate medical and psychiatric care, he has good prospects for rehabilitation
Sentencing principles
50The basic purpose for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. Given the nature of your offending and your prior criminal history I accept that community protection and specific and general denunciation are of particular importance.
51I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic) where relevant in your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty, in particular the firearm offences.[20] I also take into account the principles of parsimony, proportionality and totality.
[20] DPP v Roper [2020] VCC 544; DPP v Gartside [2022] VCC 115; Quadara v The Queen [2017] VSCA 260; Bruce v The Queen [2022] VSCA 100; Jenkins v The Queen [2022] VSCA 1; Marchei v The Queen [2021[ VSCA 58.
52Counsel were in agreement that your offending requires a term of imprisonment, structured by way of a non-parole period. The prosecution submit that it calls for further time to be served before you become eligible for parole while your Counsel submits that you have served sufficient time and the sentence should now be structured and directed towards your release into the community.
53The only just and appropriate sentence in your case is a term of imprisonment. Synthesising all relevant matters and also taking into account the Renzella time in your case, I impose the following sentences.
Sentence
54On Charge 1, possession of a traffickable quantity of firearms, you are convicted and sentenced to two years and three months’ imprisonment.
55On Charge 2, possessing, using or carrying an imitation firearm, you are convicted and sentenced to 16 months’ imprisonment.
56On Summary Charges 3 and 4, possess prohibited weapon without exemption or approval and possess a controlled weapon without excuse, I will impose an aggregate sentence as the charges form part of the same circumstances. You are convicted and sentenced to an aggregate term of five months’ imprisonment.
57Orders for cumulation are as follows : Charge 1 is the base sentence, four months on Charge 2 and one month of the aggregate sentence imposed on Summary Charges 3 and 4 are to be served cumulatively on the base sentence. I note here that in fixing these periods I have taken into account in particular the principle of totality.
58On Charge 5, possess cartridge ammunition without a licence or permit, you are convicted and fined $200.
59I fix a non-parole period of one year and seven months’ imprisonment and in doing so I have had regard to a number of matters, including the recommendations of Ms Rodgers.
60Pursuant to s18 I declare you have served 490 days in pre-sentence detention.
61Pursuant to s6AAA I declare that but for your plea of guilty I would have sentenced you to a total effective sentence of four years and two months’ imprisonment with a non-parole period of three years’ imprisonment.
62Pursuant to s89A of the Sentencing Act 1991 (Vic) the Court may disqualify you from obtaining a driver’s licence of learner permit for any such time as the Court thinks fit. You have apparently never held a licence. Your Counsel submits that while its open to interfere with your licence, in all the circumstances, particularly as the offending itself does not involve your use of a motor vehicle and you have served a substantial period on remand, the Court should not exercise its discretion to do so. Taking into account all relevant circumstances, I have decided not to interfere with your licence or ability to obtain one.
63I make the ancillary orders, that is the firearm and weapon forfeiture orders, that were unopposed.
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