Director of Public Prosecutions v Harrison

[2022] VCC 1470

IN THE COUNTY COURT OF VICTORIA

AT Latrobe Valley

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

CR-20-01510

DIRECTOR OF PUBLIC PROSECUTIONS

v

RHONDA HARRISON

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	20 April 2022
DATE OF SENTENCE:	1 August 2022
CASE MAY BE CITED AS:	DPP v Harrison
MEDIUM NEUTRAL CITATION:	[2022] VCC 1470

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REASONS FOR SENTENCE

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Subject:Criminal law

Catchwords:   Aggravated burglary; common law assault; criminal damage; commit indictable offence on bail

Legislation Cited:  Sentencing Act 1991

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Rossi v The Queen [2021] VSCA 296; Honeysett v The Queen [2018] VSCA 214 Jiang v The Queen [2019] VSCA 126; DPP v Sandhu & Ors [2019] VCC 451; DPP v Bryce [2022] VCC 288

Sentence:  3 months imprisonment and placed on a Community Corrections Order for a period of 2 years. Convicted and sentenced to pay a fine in the amount of $500.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Cecil	Office of Public Prosecutions
For the Accused	Mr C. Tom	Daniel Taylor Lawyers

HER HONOUR:

1Rhonda Harrison, you have pleaded guilty on indictment to charges of aggravated burglary, common law assault and damaging property. 

2You have also entered a guilty plea to a related summary offence of committing an indictable offence, that is, aggravated burglary and common law assault, whilst on bail.

3

In sentencing you for your crimes, I am required to have regard to the maximum penalty for the offences which you have committed.  The maximum penalty for aggravated burglary is 25 years imprisonment, for common law assault is

5 years imprisonment, for damaging property is 10 years imprisonment and for the bail offence is 3 months imprisonment.  These maximum penalties reflect the seriousness with which Parliament regards these offences.

Offences

4

The circumstances of your offending are set out in a document entitled

'Summary of Prosecution Opening for Plea (amended)' dated 13 April 2022.  This document represents your acceptance of the elements of the offences to which you have entered your guilty pleas, as well as the factual basis on which I am to sentence.  It will be summarised in my reasons, but I have had recourse to the full document.

5On the evening of 18 June 2020, you were socialising with a neighbour Jessica Rawson in unit 19 at an address in Gwalia Street.  Your co-accused Marquis Pizarro was at home in unit 4.  Around 9 pm, Teresa Barrass attended the complex to catch up with you at unit 19.  At the same time, the victim, Joanna Coulson, arrived at the complex to visit unit 9. Ms Barrass and Ms Coulson ran into one another, exchanged pleasantries and then went their separate ways.

6Shortly after Ms Barrass arrived at unit 19, Mr Pizarro approached and asked who she had been talking to.  When you discovered it was the Ms Coulson, you became extremely angry and ran from the unit, followed by Mr Pizarro.  

7You ran towards unit 9 and entered through the unlocked front door, forming the basis for Charge 1, aggravated burglary.  Mr Pizarro entered later, armed with a tomahawk.  During your subsequent record of interview, you told police that you had dropped the tomahawk prior to entering the premises.  This is not the subject of challenge.

8You went directly to the main bedroom where you located Ms Coulson. You charged at Ms Coulson, striking her with a wooden pole which you found inside unit 9 and forming the basis for Charge 2, common assault.  During the assault, the wooden pole you used broke into two pieces.  Another occupant, Mr Stevens, tried to intervene by standing between Ms Coulson, Mr Pizarro and yourself.

9Mr Pizarro then assaulted Ms Coulson with the tomahawk and picked up a serrated knife from a table in the room.  He swung the knife over the top and around the side of Mr Stevens but it did not connect with Ms Coulson. Mr Pizarro then picked up the tomahawk, holding it from the butt end and continued to try and hit Ms Coulson.  You are not said to be complicit in Mr Pizzaro's assault on Ms Coulson.

10Mr Stevens was eventually able to usher both you and Mr Pizarro from the bedroom by pleading for you to stop and falsely claiming that there were children in the unit.  Before leaving, you and Mr Pizarro said, 'Don't you dog us and call the cops because, don't forget, we know where you live and we'll come through and get you.'On the way out, the tomahawk was used to strike the front door of
Mr Steven's unit approximately five times, causing damage and forming the basis for Charge 3, damaging property.  Mr Pizarro left with the knife he had obtained from the unit.  You and Mr Pizarro returned to unit 9 where Mr Pizarro hid the tomahawk and knife.

11Police and paramedics were called to the scene, with police arriving first.  Police administered first aid on Ms Coulson, who was bleeding profusely from a deep laceration to her head.  Whilst initially lucid, her condition deteriorated.  Ms Coulson complained of severe head pain to her occipital area.  She required urgent transport to the Latrobe Regional Hospital for treatment.

12As a result of the incident, Ms Coulson suffered a fractured skull and an 8 centimetre laceration to her head requiring large amounts of blood clot to be cleaned and evacuated, sutured for haemostasias and stapled for closure.  She had multiple bruises and lacerations to her body.  These injuries were primarily caused by Mr Pizarro using the tomahawk.  He has pleaded guilty to an indictment which includes the charge of recklessly causing serious injury.

13As per the summary charge, you were on bail at the time of this offending.

Arrest and Investigation

14Police attended at Unit 19, surrounded the premises, and on hearing and observing movement within the property, asked you and Mr Pizarro to surrender.   There was no response.  Police forced entry.  You were both located hiding within the premises.

15Police searched the premises and located a handwritten letter in your pocket which read:  'Oi, lets fuck Jo up tonight, cunt.  Word, leave her bleeding in a pool of her own blood.  Sis, please, we're gonna jump Jesus Christ outta her word.'  

16Police also located the tomahawk and kitchen knife used by Mr Pizarro.

17During your record of interview you made full admissions.  You explained that the incident related to a previous occasion where you had been assaulted by a third party, your cousin Daisy Fenton, where you alleged Ms Coulson had been involved.  You stated:

'That’s what I wanted to get out of Jo last night, like, that's what I was belting her for, to know - like, ‘Tell me why,' and I just reacted and went batshit crazy on her.  I shouldn't have but I just wanted to know why and for what reason they did what they did to me.'

18You admitted damaging the front door and to writing the note to Ms Barrass asking for help in assaulting Ms Coulson.

Offence gravity and victim impact

19I turn now to offence gravity and victim impact.  The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.

20Ms Coulson has provided a statutory declaration in which she describes ongoing migraines and memory loss.  She also describes being in a constant state of fear and anxiety.  I have had regard to that document.

21Your offending occurred in the home of another person, Mr Stevens, who had nothing to do with your grievance with Ms Coulson and had his property damaged, although, I am less concerned by the charge of criminal damage than I am by the other two charges on the indictment

22Your counsel conceded that your offending is of a serious nature and would have been very frightening for the victim.  Aggravated burglary is axiomatically a serious crime.  The charge of aggravated burglary as particularized  in your case is entry as a trespasser with an intent to commit an offence involving an assault to a person therein and that, at the time of entering, a person was then present and you knew that a person was so present or were reckless to that fact.

23In your case, your entry was through an un-locked door with Mr Pizarro, after 9 pm at night in pursuit of Ms Coulson.  This offence, of course, is complete on entry but informed by what occurs once entry has been gained.  In your case this involved a vicious and unnecessary assault upon Ms Coulson in circumstances where she had little, if any, opportunity to defend herself.  The fact that there were two of you against one also made Ms Coulson more vulnerable.

24The weapon you used was located by you inside the premises and used instantly on the victim to strike to the arms and one blow to the side of the head.  I am mindful of the way the Crown’s case is put against you in terms of the assault upon Ms Coulson and your role in both that offence and that of the aggravated burglary.  In terms of the charge of common law assault, you are not identified as having caused Ms Coulson any particular injury.

25

The Crown accept that there was a relevant history between you and Daisy Fenton who assaulted you in April of 2020, was charged and ultimately convicted and sentenced to six months' imprisonment.  Ms Coulson was never charged.  Your pursuit of Ms Coulson appears to be, firstly, spontaneous, secondly, be in the context of your belief that she was present at the time you were assaulted by

Ms Fenton and, thirdly, your perceived need for an explanation as to why that initial assault on you had taken place.  This sets context for your offending, it does not excuse it.  I accept the submission made on your behalf that it is not an aggravated burglary at the higher end.

26Nevertheless, your offending involved you taking matters into your own hands.  The law has a role to play in deterring people from resorting to violence to exact revenge or retribution for a perceived wrong, even where the grievance is strongly held.  General deterrence is an important sentencing objective in this context, as is discouraging you from acting in such a way in the future.

Personal circumstances

27I turn now to your personal circumstances.  You are currently 27 years of age, born in Bairnsdale and are a proud Gunai Kurnai woman.  You are the third eldest in a sibship of six and are close with your siblings Robert, Kasey, Eddie and Beth, all of whom live in Gippsland.  At the moment, your relationship with your sister Toni is strained. 

28You endured a difficult and traumatic upbringing, reporting that your parents were alcoholics and that you were exposed to family violence throughout your childhood.  From the age of three you and your siblings spent significant periods of time in foster care.  When eight years of age, you were a witness to a violent home invasion where each of your parents were assaulted.  Material before me would indicate that you are still coming to terms with that event.  

29Your parents did separate when you were 13 years of age.  You ultimately left home around the age of 15 years.

30As a result of your childhood instability, you attended numerous primary schools.  You were unable to achieve any stability in school and ultimately left in Year 7.  You have not completed any employment.

31You have had three intimate relationships, reporting that you were the victim of severe family violence.  You have suffered head injuries in this context. 

32You were introduced to cannabis at the age of 13 years and methylamphetamine at the age of 15 years.  At the time of the offending before me, you instruct that you were using methylamphetamine and drinking alcohol to excess regularly.  You have been diagnosed in the past with both depression and anxiety.

33Your Counsel referred to the case of Bugmy v The Queen where the High Court explained the relevance of childhood deprivation to the sentencing process.  Such deprivation is relevant because the offender's moral culpability for the offences being considered is likely to be less than that of an offender whose childhood had not been marred in this way.  The Crown accept that the principles set out in Bugmy are relevant to the sentence to be imposed

34A report authored by Aaron Cunningham, psychologist, dated 30 June 2020 was tendered on your behalf.  Mr Cunningham reported that you presented at that time with a diagnosis of post-traumatic stress disorder resulting from abuse and violence in your childhood.  You experience distressing recollections of prior trauma, negative alterations in cognitions and mood in the form of feelings of emotional disconnection and hopelessness, marked arousal in the form of hypervigilance, sleep disturbance, difficulty concentrating, irritability and outbursts of anger and reckless and self-destructive behaviour.

Plea of guilty and Koori Court

35Your plea of guilty is also relevant.  Whilst the matter had some history, it did resolve on the morning of a committal mention hearing in November 2020 and does reflect a plea at a relatively early opportunity.

36Your guilty plea has utilitarian value in saving the court the time and expense of contested proceedings.   More importantly, it has saved witnesses the need to give evidence and be cross-examined at a contested committal or trial.  Your plea of guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates remain unfixed, particularly in circuits.

37I am mindful of the recent decision of Worboyes v The Queen [2021] VSCA 169 where the Court of Appeal made clear the need for that additional discount.

38Remorse is a little harder to discern in your case but I accept, through your plea, you have taken responsibility for your actions.  All of these factors will be taken into account in your favour.

39You also chose to have your plea take place in the Koori Court on 20 April 2022.   The objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process of the County Court through the role played in that process by Aboriginal elders and respected persons.  Others, such as family members and supports, are able to contribute to what is referred to as the sentencing conversation.

40The sentencing conversation is designed to assist the reform of an Aboriginal offender through a blend of customary law and English common law.   Participation in the process can be more burdensome than appearing at a traditional plea hearing because of its confronting nature and inability of the participant to hide behind their counsel.  It is a voluntary process and gave you the opportunity to demonstrate insight into the reasons for and the seriousness and effect of your offending, express any intention to reform and how that will be done and to demonstrate any remorse.

41Aunty Margaret Atkinson and Aunty Vera Briggs were the respected elders who took part in your sentencing conversation.  Each of the elders challenged you and you were respectful towards them.  Both of your parents also engaged in the sentencing conversation and you were supported by your sister Kasey.   

42During the sentencing conversation you recognised that, through your actions, you had created a 'tit for tat' type situation which you did not want.  You indicated at that time that you would return to the safety of family at Lake Tyers and that you were trying to change your life.  You benefited from the support you were shown by your parents and siblings.  You were trying to remain abstinent from drug use and you recognised your need to control your anger and that you could not protect yourself or family members by acting in the way that you did on 18 June 2020

43I did find your participation in the sentencing conversation to be a genuine one and I take that and your participation in the Koori Court process into account. 

44I turn now to your prospects for rehabilitation.

Criminal history and prospects for rehabilitation

45Relevant to that, is your criminal history, which appears to be relatively limited.  You first appeared on 12 November 2014 and were fined by the
Bairnsdale Magistrates' Court for a charge of carrying a dangerous article in a public place.

46On 18 September 2017, at the Latrobe Valley Magistrates' Court, you were fined and subjected to an adjourned undertaking for a range of dishonesty, violence and court order related offences.  This undertaking required you to remain engaged with treating medical and mental health practitioners.

47On 5 June 2019, at the Latrobe Valley Magistrates' Court, you were fined for one charge of handle stolen goods.

48This reinforces the view that your offending of 18 June 2020 was particular to a set of circumstances at that time, lessening the weight to give to the protection of the community.

49Presently, your father resides in Lake Tyers and your mother in Morwell.  You maintain relationships with each of them.  I accept that you are well supported by family.

50After your plea hearing held on 20 April 2022, the matter was adjourned in order to give your solicitors time to obtain an updated psychological assessment of you.  An assessment as to your suitability for a Community Corrections Order was also ordered and the matter next listed on 19 May 2022.

51By 19 May 2022, things had begun to unravel.  You had moved to Drouin and an updated psychological report was yet to be obtained.  Your further plea had to be relisted on 29 June 2022.  You did not attend the hearing on that date and a warrant was therefore issued for your arrest.

52You therefore had two periods of remand.  The first of those was a period of some 22 days between 19 June 2020 and 10 July 2020 at which time bail was granted.  You have also been on remand since the warrant issued by me was executed on you on 25 July 2022.  Each of those periods of remand have been during the Corrections response to the COVID-19 pandemic which requires 14 days of quarantine on reception.  In general terms, there has been less access to therapeutic and educational programs and less access to personal visits by friends and family.  Since your more recent remand, you have been held in solitary confinement. I accept that these conditions make the remanded prisoner experience more burdensome than it would otherwise be and this is another factor I take into account in a general sense.

53A further plea held on 24 August 2022 allowed for the provision of an updated psychological assessment by Dr Aaron Cunningham dated 22 August 2022.  Its contents are of some concern.  You told Dr Cunningham that, prior to your more recent remand, you were both homeless and using drugs and had been the victim of an assault.  Dr Cunningham noted at the time of his previous assessment, you presented with both post-traumatic stress disorder and associated paranoia.

54In this most recent assessment of you he opined that your mental state has further deteriorated with your paranoia escalating into a psychotic illness.  You met the criteria for a delusional disorder, believing that your sister has worked with police and members of the justice system to have you incarcerated.  You were finding the prison experience particularly onerous.  Whilst you did not have insight into the extent of your mental illness, you were open to engaging with psychological intervention and counselling.

55Also provided on your behalf is a letter authored by Ms Linda Kennedy, forensic caseworker with the Australian Community Support Organisation (ASCO).  You are a voluntary participant in what is referred to as the ReStart program, which provides outreach support post-release to help participants to establish supports and community linkages over a three-month period.  A reintegration plan has apparently been prepared for your release.  It has been identified that you require assistance with housing, alcohol and other drugs and independent living skills.  You have also been linked in with West CASA, a support service for victims of sexual assault.  A letter has been provided to that effect. 

56You hope to return to live in Drouin where you have accommodation with a friend.  Whilst you recognise the benefits for you in staying out of the Latrobe Valley, you do hope to provide support to your mother who is unwell at this time.  

Parity

57The parity principle demands that any sentence imposed reflects differences in the culpability and personal circumstances of co-offenders and avoids unjustifiable differences in co-offender sentences.

58Mr Pizarro was sentenced by me on 7 July 2022.  On an unrelated charge of handling stolen goods, he was convicted and discharged and for the charge of criminal damage on Mr Stevens door, Mr Pizarro was convicted and fined.  For  charges of aggravated burglary and recklessly causing serious injury
Mr Pizarro was convicted and sentenced to 12 months' imprisonment in combination with a Community Corrections Order of two years' duration.  This order included a range of treatment conditions.

59Mr Pizarro was only 18 years at the time of his offending, was in a relationship with you and had no prior convictions.  The sentencing principles in relation to young offenders was obviously relevant.  The Bugmy principles were also applied in his case, but his mental health was not such a factor as it is in your case.

60Whilst you were the instigator of the events of 18 June 2020, they did involve split second decision-making by each of you.  Mr Pizarro was charged with an aggravated burglary, particularised to include entry with an offensive weapon, namely the tomahawk.  As referred to earlier, his attack on Ms Coulson was charged as causing serious injury to her recklessly, rather than the charge of common law assault to which you have entered your plea.  Whilst an equal player in the charge of criminal damage, his charges otherwise were objectively more serious than those to which you have pleaded guilty.  This is enough, in my view, for some disparity in the sentences to be imposed upon you.

Submissions

61I have helpfully been referred to a number of recent decisions by your counsel, including Jiang v The Queen [2019] VSCA 126, the DPP v Sandhu & Ors [2019] VCC 451 and DPP v Bryce [2022] VCC 288, to assist in assessing where your particular offending falls on the spectrum.

62Your counsel argued that all relevant sentencing considerations can be addressed by the imposition of a Community Corrections Order or combination sentence; that is, a Community Corrections Order in combination with a term of imprisonment.

63With the most recent information available, the Crown do not take issue with the latter of those submissions. 

Sentencing

64I ordered that you be assessed for a Corrections Order in April 2022.  At that time, you were suitable for a community corrections order and a mental health condition was recommended to assist you link back with mental health services.  I have sought an updated assessment, together with an assessment from the
Mental Health Advice and Response Service (MHARS), given the content of
Dr Cunningham's report and the amount of time which had lapsed since the previous assessment.

65The MHARS assessment is dated 30 August 2022.  The assessor found you to be in a relatively stable position in terms of your mental state.  You were apparently prescribed mirtazapine.  No overt delusional, persecutory, paranoid or grandiose themes were apparently expressed.  The author recommended that a mental health component be part of any Community Corrections Order and does not see your current mental state as impeding your ability to comply.  A pre-sentence report dated 24 August 2022 advised that you were again assessed as suitable for a Corrections Order.

66The basic purposes for which a court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.   In sentencing you I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.

67I am must also balance the interest of community in denouncing criminal conduct, with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.  

68I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case.  I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of both totality and proportionality. 

69Before I turn to sentence, I will just check with each of you, Mr Taylor and Mr Cecil, that there is nothing that I have missed. 

70MR TAYLOR:  No, Your Honour.

71MR CECIL:  No, Your Honour.

72HER HONOUR:  For the charges on the indictment, I do propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts or form or are part of a series of offences of same or a similar character.  In so doing, I again bear in mind the principles of both totality and proportionality which have application to all charges on the indictment.

73For the related summary offence of commit indictable offence whilst on bail, you are convicted and fined to the amount of $500. 

74For the remaining charges, Ms Harrison, you are convicted and sentenced to 3 months' imprisonment in combination with a Community Corrections Order for a period of two years.  That order is to include the following conditions; (1), 175 hours of community work (2), supervision by the Office of Corrections (3), drug and alcohol treatment (4), mental health treatment and (5), offender behaviour programs if they are identified to assist.  I am offsetting 100 hours of treatment against the community work component, therefore, the more treatment, the less community work.  I also reckon 61 days as having already been served. 

75Now, in addition to the conditions that I have imposed, there are, what we call standard conditions.  The first and foremost of those is that you must not commit any other offences during that two-year period which could be punished by imprisonment.  You need to report within two working days of your release to your nearest Corrections office and you are also required to advise your Corrections office of any change of address of where you are living or working and you need to do that within two clear working days.  It is a term of all Corrections Order that you submit to visits as directed and you must obey all the instructions and directions of a Corrections officer.  You cannot  leave the State of Victoria without the prior permission of your Corrections office.

76In my view, the order presents you with a chance to change your life in a positive fashion, should you choose to take up that opportunity, and the supports that should be made available.  This order can be breached if you do not comply with it in terms of its conditions or reoffend whilst it is in place.  If you do, you come back before me for contravening the order.  I may be required to resentence you on the original charges, as well as to sentence you for a separate charge of contravening the order.  I sincerely hope that I do not have to do that.

77Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed, had not pleaded guilty.  If not for your pleas of guilty, you would have received 18 months' imprisonment with an 18-month Corrections Order.

78Now, I can only place you on this Corrections Order, Ms Harrison, if you agree to that.  Do you want to speak to Mr Taylor about that?   Yes, I will stand down temporarily, Mr Taylor, and let you speak with Ms Harrison. 

79MR TAYLOR:  If the court pleases. 

(Short adjournment.)

80HER HONOUR:  Thank you.  Is Mr Taylor there?  Yes, he is.  Mr Taylor, I apologise that I read through that sentence so quickly but I understand that you have another commitment at 11.

81MR TAYLOR:  I understood that might've been the reason, so I thank Your Honour for that.

82HER HONOUR:  Ms Harrison, are you prepared to sign the Corrections Order?

83OFFENDER:  Yeah.

84HER HONOUR:  Mr Taylor might be able to speak to you about accessing emergency management days too.  That's obviously not a matter for me. 

85MR TAYLOR:  Yes, Your Honour.

86HER HONOUR:  All right.  Ms Harrison, I sincerely wish you all the best on this Corrections Order.  I really don't want to see you again. 

87OFFENDER:  Yeah, that's fair enough.

88HER HONOUR:  I mean that in the nicest possible way.

89OFFENDER:  Yeah.

90HER HONOUR:  All right?

91OFFENDER:  Yeah.

92HER HONOUR:  Thank you.  There were no ancillary orders, Mr Cecil? 

93MR CECIL:  It strikes me unusual, Your Honour.  I've forgotten the disposal order for the tomahawk and the stick and a few bits and pieces.  And not as much (indistinct) I think the note and whatever.

94HER HONOUR:  All right.

95MR CECIL:  I'm sure - - -

96MR TAYLOR:  That wouldn't be opposed, Your Honour. 

97HER HONOUR:  All right.

98MR CECIL:  Mr Taylor wouldn't oppose that and I'll send it through to
Your Honour's associate in the fullness of time.

99HER HONOUR:  Well thank you.  I'm mindful that that application is foreshadowed.  I'm mindful that consent is also foreshadowed.  All right, well, thank you.  I'll stand down now till 10.30. 

100MR CECIL:  If Your Honour please.

101MR TAYLOR:  If the court pleases.

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