Director of Public Prosecutions v Harrison
[2022] VCC 1411
•25 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-01415
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| PATRICIA HARRISON |
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JUDGE: | His Honour Judge Johns | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2022 | |
DATE OF SENTENCE: | 25 August 2022 | |
CASE MAY BE CITED AS: | DPP v Harrison | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1411 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Koori Court Jurisdiction – Carjacking – Handling stolen goods – Application of Bugmy principles – Intellectual disability – Exception to s 5(2H) of the Sentencing Act established.
Legislation Cited: Sentencing Act 1991
Cases Cited: Bugmy v The Queen 249 CLR 571; R v Renzella [1997] 2 VR 88
Sentence:Total effective sentence of 207 days’ imprisonment in combination with a Community Corrections order of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Stephanides | Office of Public Prosecutions |
| For the Accused | Mr M. Sturgess | Law & Advocacy Centre for Women |
HIS HONOUR:
1 Patricia Harrison, you have pleaded guilty in Koori Court to one charge of carjacking and one charge of handling stolen goods. The maximum penalty for each of these charges is 15 years' imprisonment. You have also pleaded guilty to relevant summary offences: committing an indictable offence whilst on bail, which has a maximum penalty of three months' imprisonment; failing to stop a vehicle on police request, which for a first offence the maximum is six months' imprisonment and a six-month licence disqualification.
2 Summary Charge 9, unlicenced driving, a maximum of six months' imprisonment. Summary Charge 10, drive whilst exceeding the prescribed concentration of drug, first offence 12 penalty units and up to six month licence disqualification, and Summary Charge 13, driving in a manner dangerous which has a maximum penalty of two months' imprisonment.
Circumstances of Offending
3 The circumstances of your offending is set out in the summary of prosecution opening which was Exhibit A on the plea and forms part of these reasons for sentence. You were on bail when you committed the offence before me, having been bailed from the Melbourne Magistrates' Court in August 2020, to reappear on 21 April 2021.
4 In relation to handling stolen goods and commit indictable offence whilst on bail, on 3 December 2020 at around 2.50 pm Ms Brewers was standing near the corner of Queen Street and Collins Street waiting for the lights to change. She had her wallet and personal phone in her handbag. She felt the handbag move. When she checked it she found her phone was missing.
5 She had a work phone, which she used to call her personal phone. She looked around and saw three people walking away from her towards Flinders Street. They kept turning around to look back at her and she followed the group. When they stopped at a pedestrian crossing she asked them whether they had her phone. The group denied having her phone. The theft was reported to police.
6 In relation to Charge 1 on the indictment, carjacking, and also the summary charge of commit indictable offence whilst on bail, that relates to events on the morning of 4 December 2020. Ms Quoc was driving her car, a Honda Accord, to her work in Reservoir. She arrived at about 5.20 am. She went to the boot of the car to get shoes. Whilst standing at the boot she noticed a white sedan, driven by you possibly, pulling into the driveway behind her.
7 Your unknown co-offender approached her and 15 seconds later you joined them. A demand was made for Ms Quoc's keys but Ms Quoc, who does not speak English well, did not understand and did not respond. The unknown male was holding a sharp object which was about 25 centimetres in length and appeared metallic. Ms Quoc thought it was a knife.
8 The unknown male pushed the object towards Ms Quoc's stomach but did not touch her. Ms Quoc's keys were in her jacket pocket attached to a keychain. Your co-offender saw the keys and took them from Ms Quoc's pocket, then you left in the Honda Accord. Ms Quoc stepped in front of the car to stop you from driving away but was unsuccessful.
9
I was told that once you joined the co-offender and approached the victim, you were with Ms Quoc in your co-offender's company for approximately
45 seconds before you got into the Honda. The carjacking was reported to police. You were later identified from a photo board.
10 Later on 4 December at around 8.30 am you were driving Ms Quoc's Honda. At around that time, police officers Wright and Tate received a report that the Honda was seen driving erratically and swerving on the Hume Freeway. A witness observed the car you were driving going from the left hand side of the road to the right hand side of the road and back about eight times. The witness stated that the car almost crashed into the roadside barriers on both the left and the right side lane. This is part of the conduct relating to Charge 13, drive in a manner dangerous.
11 Police officers located the vehicle and attempted to stop it by activating their lights and sirens. You did not stop. The officers pursued you for about eight minutes at speeds between 80 to 100 kilometres per hour before ending the pursuit. That is summary Charge 8. As the officers drove past
Seymour-Tooborac Road they saw the stolen Honda driving towards them. They did a U-turn and continued to follow you at a distance.
12
Near the intersection of the Northern Highway and Tooborac you left towards the Tooborac Primary School. You came to a stop when you drove into an embankment. You were then arrested. At the time of your arrest you were in possession of the iPhone stolen from Ms Brewers. That is the subject of
Charge 2, handling stolen goods.
13 At 10.55 am you took an oral fluid test and admitted to using ice the night before. You also admitted that you were driving the stolen Honda and that you had driven 140 kilometres since using the ice the night before. Police later attempted to undertake an interview with you; however, due to concerns about your behaviour the interview did not proceed. You were unlicenced at the time of this driving and toxicology analysis of the oral fluid sample taken from you detected methylamphetamine. That is referable to Charge 10.
Victim Impact
14 The impact upon your victim Ms Quoc has been significant. The emotional and psychological distress inflicted on her has been severe. She suffers flashbacks and it has affected her employment, her mood, her relationship with her husband, and enjoyment of life. She is angry and scared and will no doubt carry that trauma for some time. The offence also involved the trauma of being deprived of important valuable property in her vehicle.
Objective Gravity of Offending
15 Carjacking is a serious offence. The maximum penalty of 15 years is an indication of how seriously the offence is viewed by Parliament. It was extremely frightening and traumatising for your victim. She was alone and very vulnerable. She has been preyed upon by your co-offender and you in the early hours of the morning in the dark. You committed the offence in company.
16 In assessing the gravity of your offending, I also take into account the fact that the offending commenced without your participation. You arrived when the crime was underway for some 15 seconds after its commencement. You were complicit thereafter, but played no role in terms of overt threats or acts of intimidation.
Personal Circumstances
17 Turning to your personal history. Your personal history is one that involves significant disadvantage. Your home life was disrupted with removal into foster care. You also experienced significant exposure to alcohol abuse, violence, and sexual violence in your formative years.
18 You are a proud Gunai Kurnai and Wurundjeri woman. You were born and raised in Morwell. Your family has deep connections to the community and country in that area. You are one of seven. Your mother passed away when you were a teenager. Your father passed when you were aged 29. You were raised for the most part by your Aunt Betty.
19 It was a struggle. You recall relying on food parcels and having to fend for yourself. The Department of Human Services were involved, removing the youngest four children from your family, you being amongst that number. You were aged about four. You had periods in foster care. You recall periods in foster care in Bairnsdale fondly for the fact that you had contact with your mother during that time before being returned to your aunt's care when you were around the age of seven.
20 Your aunt's partner was violent and also attempted touching you sexually, I was told. You ran away on several occasions to avoid this behaviour. You were exposed to alcohol and violence throughout your developmental years. You began consuming alcohol at 12. You used cannabis from 11. Your education was frustrated by your intellectual limitations. You attended Brenda Disability School in Morwell. You struggled with mathematics and have a literacy deficiency.
21 Materials provided to me at your plea included a report from Warren Simmons, psychologist, dated 14 November 2014, and a Forensicare record dated 28 June 2021. Both documents refer to reported intellectual disability. I had you assessed by disability services.
22 I am also satisfied that you have an intellectual disability, and in this context the effects of trauma and disadvantage have fallen more heavily upon you as you have had to navigate your way through family loss and abandonment, disruption, abuse, education, childhood substance and alcohol abuse and homelessness all recognised criminogenic factors. Your criminal history is reflective of your trauma history in the context of intellectual disability.
23 In their helpful sentencing submissions, the prosecution conceded that it was clear you are a vulnerable indigenous woman with a likely intellectual disability and substantial trauma arising from your difficult upbringing, and at times loss of connection to country and lack of pro-social supports. I am referring to paragraph 2 of the prosecution sentencing submissions. Defence were initially conservative in their reliance upon your personal history engaging the Bugmy v The Queen (“Bugmy”)[1] principles with full effect.
[1]Bugmy v The Queen (“Bugmy”) 249 CLR 571
24 I am satisfied that your personal history, in combination with your intellectual disability, are circumstances through which I must assess your moral culpability. Those factors have shaped you and your responses throughout your troubled life; in particular your vulnerability to alcohol abuse from a young age, illiteracy and lack of support have been central factors in your criminal trajectory.
25 In particular I take note of the references in the 2014 Warren Simmons report regarding your family history, on p 2 of that report where it reads,” Ms Harrison indicated that most of the family are alcoholics and there is a great deal of foster care”. As I have referred to, you were in foster care yourself from ages four to seven but also many of those around you were and, no doubt, there have been many instances in your family line of removal, deprivation, and the exigencies of the mission policy.
26 It is clear to me from the materials before me, and also from what I have learned due to your involvement in the sentencing conversation, particularly your interaction with Auntie Marg Atkinson, that your family is one that has suffered terribly due to the continuing impacts of colonisation, dispossession, and break up of families, the mission system, the breakup of that system, child removal, systemic disadvantage, and racism, to name some of the impacts your family has historically endured.
27 The trauma and disadvantage that is apparent in your life sits within a context of intergenerational trauma and its effects. As I have observed during the hearings of your matter, the overrepresentation of indigenous people in custody is even more alarming when, in this State, we have regard to Aboriginal and Torres Strait Islander women in custody. It is something that I have been mindful of in assessing the circumstances of your life and the engagement of the Bugmy principle, but also the wider consideration of the impacts that might be encompassed within a heading of intergenerational trauma.
Sentencing Conversation
28 I take into account your participation in the sentencing conversation. You interacted and engaged with Auntie Pam and Auntie Marg. During the conversation you told Auntie Marg and Auntie Pam of an occasion when you were 13, when you were overwhelmed with despair and helplessness and attempted suicide. You accepted responsibility for your conduct during the sentencing conversation.
29 You were challenged by your Elders. Auntie Marg Atkinson knew your family, and through her knowledge of the local community and in particular her work in the educational field, she was aware of your struggles and your vulnerability. Auntie Marg's understanding of your life and family connections was a touchstone for the sentencing conversation that provided me with a much better insight into your circumstances than I otherwise would have.
30 The sentencing conversation also involved the participation of your case workers. This is one of the strengths of the sentencing conversation in a case such as yours, together with the reports and other materials including the helpful defence outline of submissions, the content of the sentencing conversation provided me with a much more in depth understanding of the circumstances that have shaped you and your responses to your environment.
Auntie Pam and Auntie Marg discussed your problems in a more meaningful way than I could with counsel, given their experience in particular, and this gave me a strong vantage point from which I could assess your prospects in light of the dedicated supports you have around you and the input from your case workers in that sentencing conversation was greatly beneficial. Adjournment Period
31 I adjourned the matter for a period of around six weeks in order to obtain a statement of disability from the Department of Families, Fairness and Housing, as well as an extended pre-sentence report. Whilst you had been on a justice plan previously, and whilst I was satisfied that you have an intellectual disability, I could not place you on a community corrections order with a justice plan condition unless I had a current statement of intellectual disability, and an assessment for a justice plan.
32 You were on bail and engaging well with your supports for the most part during that period. When the matter returned the reports were unavailable unfortunately, and your engagement with case workers had deteriorated. During a further adjournment you became involved in a personal relationship which had some very negative aspects to it for you. You failed to engage and keep in touch with your supports.
33 Ultimately you failed to appear in court and I issued a warrant for your arrest. You were brought before me. I was told of the circumstances in which you were located. Reluctantly I remanded you until such time as I was satisfied that you were not a danger to yourself and that the risk of failing to answer bail was not unacceptable.
34 I now have the extended pre-sentence report dated 16 August. I should note of course you were re-bailed for some six days after that remand. I now have the justice plan and disability overview report dated 23 August. These reports have provided valuable information to me about you and the type of supports available to you.
35 Other Matters in Mitigation
Available supports
36 You spent 207 days in custody on the matters before me before being granted bail. But for the six days on remand I have referred to in the past fortnight, you have been on bail. You have had strong supports on that bail program through VACCA, Launch Housing, NDIS, and other services. Your progress on bail has not been without incident, as I have mentioned, but it has also been largely successful in your circumstances.
Renzella time
37 In addition to the 207 days of pre-sentence detention, you have spent 451 days in custody which does not attract a pre-sentence detention declaration. This period is what is sometimes known as Renzella time, and I take it into account in that sense.[2]
Intellectual disability
[2]R v Renzella [1997] 2 VR 88
38 I am also satisfied of a nexus between your intellectual disability and your offending, and the sentencing factors of general deterrence and specific deterrence are sensibly moderated to reflect that nexus. What I have referred to as Bugmy factors also have some application in that analysis. The combination of Bugmy factors and intellectual disability are also relevant to my assessment of your moral culpability, and those factors operate to mitigate sentence via that assessment.
Remorse
39 I accept that in your own way you are genuinely remorseful. During the sentencing conversation you stated that 'I feel bad about what I did'. You have pleaded guilty and you will receive a discount for your plea of guilty. There is a significant utilitarian value to your plea of guilty during these times due to the state of the trial lists in the context of the COVID-19 pandemic. Your time in custody was also no doubt particularly onerous due to those restrictions.
Exception to s 5(2)(h) of the Sentencing Act
40 I have already referred to the participation in the sentencing conversation is another factor in mitigation. In your case s 5(2)(h) of the Sentencing Act applies.[3] Section 5(2)(h) of the Sentencing Act requires that I impose a custodial sentence and not one that is in combination with a community corrections order unless I am satisfied that you qualify under any of the exception provisions. The finding in relation to intellectual disability satisfies an exception to the operation of that section, and that is not disputed.
Sentence
[3]Sentencing Act 1991 (Vic)
41 I now turn to sentence you, Ms Harrison.
42 In relation to Charge 1, that is the charge of carjacking, you are sentenced to 207 days' imprisonment in combination with an 18-month community corrections order.
43 The conditions of that community corrections order are supervision, drug assessment and treatment, alcohol assessment and treatment, medical assessment and treatment, mental health treatment, judicial monitoring, and the first one will be three months from today, and a justice plan condition.
44 On Charge 2, you are sentenced to 14 days' imprisonment concurrent with the sentence imposed on Charge 1, to be served concurrently with the sentence imposed on Charge 1.
45 In relation to summary offence Charge 7 you are sentenced to seven days' imprisonment concurrent with other sentences imposed today.
46 Charge 8, one month imprisonment concurrent with other sentences imposed today and your licence is cancelled and disqualified for six months.
47 Charge 9, you are fined $500.
48 Charge 10, fined $500 and licence cancelled and disqualified for six months.
49 On Summary Charge 13 one-month imprisonment concurrent with other sentences imposed today.
50 Just to be clear, I have applied the presumption of cumulation in relation to offences committed whilst on bail and I make those orders for concurrency cognisant of that. I make a declaration in relation to pre-sentence detention.
51 It occurs to me pre-sentence detention is probably now 213 days, is it, given the six days.
52 MS STEPHANIDES: It's actually on my calculation, Your Honour, 212. It's the five days between 12 August and 16 August, taking into account 16 August which is the fifth day, so it would be 212 on my calculation.
53 HIS HONOUR: I will make a pre-sentence declaration of 212 days, notwithstanding that the sentence - the combination sentence I have imposed is 207 days in combination with the 18 month community corrections order.
54 Just so that is understood by all, pursuant to s 6AAA were it not for your pleas of guilty I would have imposed a head sentence of four years with a non-parole period of two and a half years.
55 Were there any ancillary orders in there?
56 MS STEPHANIDES: There weren't, Your Honour.
57 HIS HONOUR: I don't think there were, no. Any other orders I need to make?
58 MS STEPNANIDES: No, Your Honour.
59 HIS HONOUR: Ms Harrison, do you consent to the community corrections order that I have now imposed upon you?
60 OFFENDER: Yeah.
61 HIS HONOUR: Thank you. Ms Prior will explain all of that to you, but basically as you'd understand I'm sure it's time served plus a CCO is what it comes down to. As I've said to you at various stages, I didn't want to see you going back to gaol and that remains, but it's up to you to complete the community corrections order and keep maintaining those wonderful supports you've got. Re-offending will see you back in custody and no one wants that, so you've got to stay on this path. It's an order which I'll be checking in on you every three months initially.
62 That order will now be prepared and I accept your consent to the order and that will be sent to Ms Prior and you will be asked to sign it, and there are certain requirements that you have to engage in within a couple of days. If you breach the order I have to look at re-sentencing you. We don't want it to come to that, so make sure you do everything you need to and I should state for that corrections order, the first judicial monitoring date will be 24 November at 9.30 am, Thursday 24 November 9.30 am.
63 MS STEPHANIDES: As Your Honour pleases.
64 HIS HONOUR: If there's nothing else, good luck on the order, Ms Harrison. I will see you in three months' time. Thanks, Ms Prior. Thanks, Ms Stephanides, for your assistance in this matter. We'll adjourn the court.
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