Director of Public Prosecutions v Harrison, Ricky
[2013] VCC 474
•16 April 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-11-01201
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY HARRISON |
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JUDGE: | His Honour Judge McInerney | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 February and 8 April 2013 | |
DATE OF SENTENCE: | 16 April 2013 | |
CASE MAY BE CITED AS: | DPP v Harrison, Ricky | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 474 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: common law assault – cause injury intentionally – cause serious injury intentionally – cause injury recklessly – prior criminal convictions – Indigenous Australian – alcohol and poly-substance abuse
Legislation Cited: s.18 of the Crimes Act 1958 – s.16 of the Crimes Act 1958
Cases Cited:Fernandov. R (1992) 76 A Crim R 58
Sentence: total effective sentence of 2 years, 7 months and 2 weeks imprisonment with a non-parole period of 18 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Churchill | Mr B. Nankin (Office of Public Prosecutions) |
| For the Accused | Mr D. Cash | Mr M. Edmondson (Victorian Legal Aid – Morwell) |
HIS HONOUR:
1 In this indictment, No. A13065132.1, Mr Harrison has pleaded guilty to four charges. Those offences occurred in July 2010. The first of those charges is one of common law assault. The maximum penalty prescribed by Parliament for that offence is five years. The second charge is a charge of cause injury intentionally, a breach of s.18 of the Crimes Act 1958, for which the maximum penalty prescribed by Parliament is ten years. The third charge is the matter of cause serious injury intentionally, the maximum penalty prescribed by Parliament under s.16 of the Crimes Act 1958 is twenty years. The fourth charge is one of cause injury recklessly, under s.18 the maximum penalty prescribed by Parliament is five years.
2 Mr Harrison, I am going to go through a number of matters that are relevant to your sentence before asking you to stand. It is somewhat difficult for you in the sense that you have to sit and listen to me, but it is important that these matters are aired and detailed so that if anyone else thereafter is interested in why you were given this sentence, it is set out. More importantly, that you know yourself why the sentence is imposed, and of course should there be any further legal proceedings in regard to the matter, those reasons are detailed. I apologise for the matters that I have to go through but such is necessary, before I ask you to stand to be sentenced in this matter.
3 You are now twenty-eight. These charges took place when you were aged twenty-seven. Your prior offences date back to a period of 2003. They are, unfortunately, quite significant. You were in April 2008 sentenced to a lengthy period of imprisonment of three years, with a minimum of seven months, for armed robbery offences. In addition, over that period you have priors for unlawful assault, two priors for recklessly cause injury, one prior for assault police, and one prior for recklessly cause serious injury and then, as I have already referred to most recently, the armed robbery charge for which it should be said that you not only served your sentence but you appropriately served your period on parole without any transgressions.
4 Insofar as the circumstances surrounding this matter, Exhibit A was agreed and tendered insofar as the summary of the prosecution opening. As I said, at the time you were twenty-seven. Unfortunately, because of your background, which I will come to later, alcohol played a very major part in these crimes.
5 You had visited a friend's house and it was as a result of particular circumstances there that these offences occurred. It should be noted that early on you were seen by one of the owners of the first house you were at to be carrying a knife which was sticking out of your pocket. You are not, of course, to be sentenced for that fact; however, that is indicative of very dangerous behaviour, especially in your case, when you are afflicted by alcohol.
6 After leaving that house, going to a hotel and returning at about 1 am, at the Harnden’s house was Mr Harnden and his partner, Leanne, and their children. Also present were yourself and your then girlfriend, Ms Bree Austerberry. In addition there was Jamie Hopcraft, Andrew Meldrum, Troy Martin, and Brad Hoffman, a number of those persons who you had been to the hotel with.
7 At approximately 2 pm it seems that you had an argument with your girlfriend. There had been a problem with that relationship apparently. As a result of that argument, you slapped your girlfriend to the face causing her to fall off the chair that she had been sitting on. That is the basis of the common law assault count in Charge 1. No victim impact statement was filed on behalf of Ms Austerberry.
8 Thereafter, emanating out of your behaviour a fight or altercation began. During this you punched the complainant, Mr Brett Andrew, to the face, leading to Charge 2 being laid. There were no serious injuries caused, however, the circumstances certainly were the background to the more serious offences that occurred thereafter. That punch makes up the basis for Charge 2, causing injury intentionally. You were then separated.
9 The proprietor of the home told you, in somewhat colourful language, to leave the house and you then left. However, unfortunately, you decided to return and when you returned, whether it was the original knife you allegedly had, or not, I am not sure, but you did return and you had in your possession a knife. That circumstance was noted. As a result of that, Mr Andrew went out to the front of the premises, where you were, and then a fight broke out.
10 During that fight the crime that makes up Charge 4, that is recklessly cause injury, occurred. There appear to at least have been five penetrating wounds inflicted upon the complainant Mr Andrew during the fight between yourself and him. As detailed at paragraph 14 of Exhibit A, there was a one centimetre superficial laceration to the left anterior chest; there was a one centimetre superficial laceration to the lower left side of the abdomen, and two lacerations to the lower upper arm, both approximately two centimetres. Fortunately for you, and indeed for Mr Andrew, despite these penetrations those injuries were not serious.
11 In addition, you then used the butt of the knife, bringing it down upon Mr Andrew's head, causing a four centimetre laceration to the front of his scalp. The photos were tendered in regard to that particular injury (Exhibit B), as was Exhibit C, which was a photograph of the knife. There were twelve stitches inserted in that laceration to the frontal scalp of Mr Andrew. As a result of these particular circumstances, Mr Andrew was subsequently treated in hospital.
12 Mr Andrew is obviously a fairly stoic individual, because despite these injuries, at 7.50 am that morning he discharged himself from the hospital, against medical advice, having signed a discharge “at his own risk” certificate. There is no further information as to the progress of his injuries; however, given that they were superficial in nature and appropriately sutured, one presumes that there were no long term impacts, as I say again, fortuitously for you and him.
13 Insofar as the plea was concerned, the prosecution set out the details as I have indicated. Exhibit A was accepted by your counsel as a fair representation of the facts. It was pointed out to the Court that this plea was eventually resolved by consent, when you had an appropriate Indictment to plead to, and you have been on remand to date one hundred and twenty days. The plea took place over two days.
14 The prosecution did not indicate a range, as I did not ask for a range. However, having been provided sentencing statistics and propositions having been put to me by the defence, the prosecution put to me as a sentence appropriate to you a maximum penalty of somewhere in the region of three to four years with a minimum period before being eligible for parole of between two and three years.
15 Insofar as the plea on your behalf, Mr Cash spoke in particular about your personal circumstances and also tendered a report from the Central Melbourne Psychology Organisation, in particular of Mr David Ball. Mr Ball had an extensive interview with you, he noted that you were born in Gippsland and you were a member of the Kurnoiguni people and you have remained associated with that tribe throughout your life, you are and have been subject to problems with depression and are currently being treated by the prescription of Zoloft, you do not exhibit any frank signs of any mental illness, nor any psychotic ideation, you do, however, present unfortunately with a lengthy history of drug and alcohol-related abuse and the problem that you have had throughout your life is that when so affected, you generally exercise poor judgment and such deteriorates rapidly.
16 You, unfortunately, similar to many people of your tribe and nation, have had a background which can only be described as dysfunctional, chaotic, and disengaged. You were, unfortunately, adopted out at the age of three months. As described by you, the particular circumstances on that night were unable to be recollected by you. Such is understandable, because as you said, "The night this happened I was drinking heavily. I was also using speed, Xanax and ice, so I was out there. Not in the right state of mind, and also I was fighting with my ex-girlfriend".
17 Mr Ball diagnosed you as having a polysubstance dependence, that you were in your current position in hospital in early full remission in a controlled environment. The difficulty, of course, throughout your life is that you are not always in a controlled environment and then these issues come about. As Mr Cash said, you have had problems with severe drinking, alcohol, and amphetamines. In particular, despite appropriately serving your parole, you lost your step-parents, and it seems that that led to a situation where you got back on to your substance abuse and you seemed to be particularly afflicted at this time.
18 It was put to me that when you came back to the party you had no malicious intent. I do not think I could accept that. All that I do say is fortunately for you the injuries that were incurred were not too bad, and it seems that an appropriate recovery was made.
19 Mr Cash submitted that the Court should take into account that you offered your plea at the earliest appropriate time and I accept that in the circumstances that was the first time that this Indictment, as it is now drawn, was available. Mr Cash asked me to take that into account as an appropriate discount factor in this plea, and also that given the particular circumstances of the crimes that such is a particularly valuable plea.
20 I have no doubt in regard to the particular circumstances which make up Charge 3, the charge of causing serious injury intentionally, that both in regard to the intent that would have had to be proved in front of a jury, and as to the need to prove a serious injury, your plea must be seen as particularly valuable.
21 Your counsel took me to various authorities, in particular Fernandov. R (1992) 76 A Crim R 58, 62, which talks in particular of the difficulty that Courts face when sentencing persons who are of the Aboriginal race. Of course, the same sentencing principles apply to all members of our community, whichever their race is. The relevance of the Aboriginality of an offender does not in any way mitigate punishment, but it helps to explain and throw light on a particular offence and the background circumstances of an offender.
22 Clearly, drunkenness is not, and is not in this case, an excuse or a mitigating factor. However, reality reflects not only yours but unfortunately a situation that is endemic in your community, and that is the socioeconomic circumstances throughout your community caused by the abuse and effect of abuse of alcohol. In stating such, it is no more than a realistic recognition by the Court of the endemic presence of alcohol within Aboriginal communities within our society and the grave social difficulties faced by these communities, whereby persons raised within those communities have poor self-image, absence of education, and lack of work opportunity and other demoralising factors. Your history is unfortunately no exception.
23 Of course, as I have pointed out, these impacts have been part of your life for many years. As I say, you are now twenty-eight and your prior offences go back to 2003 and earlier from that in regard to child activities. To use your own words, you were "out there" on this night. That in no way reduces your culpability or the seriousness of this offending; however, the Court is fully appreciative of the fact that you were acting while under the effect of serious substance abuse, and are so afflicted from a psychological point of view.
24 The Court has also had the benefit of looking at the sentencing snapshot prepared by the Sentencing Council in regard to offences of causing injury recklessly and I take those into account to the degree that they educate the instinctive synthesis that must be applied by a Court to all sentences which must relate to the individual circumstances of a case.
25 I also have the benefit in your case of having been able to peruse the remarks, when your sentence for armed robbery, went before the Court of Appeal. The history that I have described was set out by the Court of Appeal, and indeed their recognition that your prospects of rehabilitation are not great. It was stated by that Court that it was hoped by the Court that your first significant gaol experience, as a result of the armed robbery, would work to the effect that hopefully it would assist to change your life course from what you had led prior to imprisonment. At the time the trial Judge did not hold up great prospects of your rehabilitation, and that view was endorsed by the Court of Appeal. Unfortunately, those views have proved to be true.
26 Mr Harrison, as you know, it is quite clear that unless you change your lifestyle in regard to substance abuse these crimes will continue happening. You are a young man now. It will be a great tragedy if steps are not taken and if you do not continue with your current program to control both drugs and alcohol, within the gaol environment. Your real problem, of course, is when you get out of the gaol environment and how you control yourself in circumstances where, for example, you have just had an argument with your girlfriend and people intervene. Unfortunately, this is a classic example of what happened on this night.
27 The Court whenever it has to sentence someone of Aboriginal background, unfortunately often has these background factors to contend with. It is, of course, depressing to have to sentence people who have been subject to such deprivation within Australia. One, of course, hopes to be positive.
28 It is hoped, as Mr Ball has set out, that if you continue with your methadone program, if you continue with your abstinence as you are effecting in gaol at the moment, and if you can control the grog, then hopefully rehabilitation may be around the corner. I can only wish you well in that regard, Mr Harrison, because you are at a stage that if you do not effect this rehabilitation now, then unfortunately this course where you have had one significant period of gaol, and I am about to sentence you again, will be your life. If you would stand, please.
Sentence
29 In regard to Charge 1, you are sentenced to a period of one month's gaol.
30 In regard to Charge 2, you are sentenced to a period of two months' gaol.
31 In regard to Charge 3, that is the injury to the head of the complainant which you did with the base of the knife. As I said, this is a very unusual charge of intentionally cause serious injury, and was a very valuable plea. The sentence that I see as appropriate in that regard, taking into account all the circumstances, is a period of 12 months' gaol.
32 In regard to the series of matters that made up Charge 4, being the recklessly cause injury, I sentence you to a period of two years' gaol.
33 Using the sentence imposed on Charge 4 as the head sentence, I order that in addition to that two years' gaol there be served cumulatively six months from the sentence on Charge 3, one month from the sentence on Charge 2, and two weeks from the sentence on Charge 1, making a total effective sentence that you have to serve of two years, seven months and two weeks imprisonment.
34 I order that the period, Mr Harrison, that the period that you must serve before you are eligible for parole is a period of eighteen months.
35 Insofar as the declaration, under s.18 of the Sentencing Act 1991, of the period of time that you have served to date, I declare that one hundred and twenty days that you have served on remand is deemed to be service of this sentence and the declaration to that effect should be recorded in this Court.
36 The end result of that, Mr Harrison, is that your sentence on top will be two years, seven months and two weeks. The non-parole period that you have to serve is eighteen months less the one hundred and twenty days that you have already served.
37 It is important for you to understand, as you say that you were told there would be an appropriate discount granted if you pleaded guilty, and I make a declaration, pursuant to s.6AAA of the Sentencing Act 1991, that had you not pleaded guilty and been able to seek a discount for that plea and been able to say that you had assisted the Court, in the sense that we did not have to run this as a trial and did not have to call all of the witnesses, then had you not pleaded guilty the sentence that would have been imposed would have been four years imprisonment with a minimum of two and a half.
38 Insofar as the details of that sentence, Mr Stuart will explain that to you down in the cells. Mr Stuart, any questions about that at this stage?
39 MR STUART: No, Your Honour.
40 HIS HONOUR: Insofar as the disposal order, Madam Prosecutor, I have signed the disposal order.
41 MS PICONE: Thank you, Your Honour.
42 HIS HONOUR: Good luck, all right? All the best. Thank you.
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