Director of Public Prosecutions v Harsent
[2012] VCC 1373
•17 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-02046
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AARON HARSENT |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March 2012 | |
DATE OF SENTENCE: | 17 September 2012 | |
CASE MAY BE CITED AS: | DPP v HARSENT | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1373 | |
REASONS FOR SENTENCE
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Catchwords: Drug offences-plea of guilty-youth-delay-eligible for Disability Services- Acquired brain injury-hearing disability-long term substance abuse-other possible mental health issues
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms. C. Hollingworth | OPP |
| For the Accused | Mr. D. McGlone | James Dowsley |
HER HONOUR:
1 Arron Harsent, you have pleaded guilty to three charges: one charge of trafficking cannabis, which has a maximum penalty of 15 years imprisonment, and two charges of possession of a drug of dependence; one for cannabis and one for amphetamine.
2 Your barrister has agreed that the possession of cannabis was probably for trafficking, and so the maximum penalty is four years imprisonment or 400 penalty units.
3 For the possession of amphetamine, the prosecution do not say that was for trafficking, but for personal use, and so the maximum penalty is one year imprisonment or 30 penalty units.
The history of your case
4 Before I talk more about your offences and the sentence I am going to give you, I am going to set out what has happened to your case since the offences took place.
5 You were arrested on 16 October, 2009, for trafficking and possession of drugs. Charges were laid that same day. You were released on bail. Your committal was 12 months later on 27 October, 2010, and your case was set down in this court for trial, another 12 months on, 7 November, 2011. You were pleading not guilty to a number of charges.
6 After a number of hearings in this court, you pleaded guilty to these three charges on the first day of the trial. A date was set for your plea of 3 February 2012. Bail was continued on these charges but you were in custody on other charges. On 3 February this year, the plea hearing was adjourned to 30 March, when I first became the judge in charge of your case.
7 After hearing about you from your barrister, I adjourned the case again, this time to get a report which would help me to decide if I would sentence you to a Community Corrections Order with a justice plan. I was told that the people who prepare the report needed until 12 June and so your case was adjourned until then. You were still in custody on other charges.
8 In April, the people who prepare the report told me that they needed more time and the case had to be adjourned again. Then I found out that when the people came to see you in gaol, you did not know what it was all about, and did not want to see them. We got that sorted out and the people said they would come and see you again, but they needed another three months to complete the report.
9 So your case was adjourned again to today, 17 September, 2012. In the meantime, the people had been to see you and you were found to be able to get assistance from Disability Services because of the brain injury you received in your motorbike accident in March 2009, but before your case came back to me, you had to go to the Magistrates' Court.
10 On 20 August, the Magistrate sentenced you to a Community Corrections Order for two years with a justice plan. That is the sentence I was considering for you, and so I have to look at other ways of dealing with your charges.
The offences
11 I will now talk about those charges for which I am to sentence you today. I sentence you on the basis of the opening, which was read by the prosecutor on the first day of the plea, on 30 March 2012, and that is Exhibit A.
12 In summary, there were telephone intercepts by the police which picked up conversations between you and another man, making arrangements for you to supply him with cannabis to sell. The charge of trafficking relates to a two week period. When the police came to your house, 11.6 grams of cannabis was found, which, as I said before, is accepted to be in your possession for the purpose of trafficking. The quantity of amphetamine found by the police was 1.4 grams.
13 I accept that you were involved in selling cannabis to make it easier for you to get some for your own use. I also accept that the amphetamine was for your own use.
Parity
14 I do not know what happened to the other man in the trafficking conversations, that is Mr McDonald, but it does not matter, because your circumstances are almost certainly to be so different to his, that any sentence he got, if he was charged, would not need to be taken into account.
Factors in mitigation and personal circumstances
15 There are a number of things that I have to take into account in your favour. The first of these is the fact that you have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. By your plea, the community has been spared the time and cost of a trial.
16 Because of that, I can tell you that the sentence I intend to impose is less than would have been imposed, had you been found guilty after a trial.
17 The next thing is that you were only 18 years old when you committed these offences. You are still only 21 years old, and so you are to be sentenced as a young person. This means that my sentence has to give you the opportunity to learn to live without using drugs, and without breaking the law.
18 The next thing I take into account in your favour is the time that has passed between you committing the offences and now - nearly three years. Most of that delay, if not all of it, is not your fault. The court system is overloaded, and so two years passed in just getting your case to trial. Of course, the fact that you did not turn up on some dates, did not help to make the case go more quickly, but it did not make the delay longer in my view.
19 The next thing that I take into account is that you have been assessed as being able to receive assistance from Disability Services. This is very important because it changes the sort of sentence you should be given. I have read all about your background and childhood from a number of reports which are on the court file. I will not repeat that information, but I have taken it into account.
20 I have looked at your criminal record. It shows that you were using drugs and getting into trouble with the police before you had your motor bike accident. The offences you have committed before include drugs, thefts, resisting and assaulting police and driving matters. You were given three good behaviour bonds in the Children's Court when you were aged 11, 12 and 18. I also read that there was a Community Based Order given later, but you did not do what you were supposed to do to finish that.
21 While you were on bail for the drug charges that I am sentencing you on today, you committed some other offences, and these are the charges that the Magistrate dealt with in August. The offences included burglary, theft, driving, damaging property, threats and assaulting police. There were no drug offences.
Current circumstances
22 You were released on custody on 20 August 2012 from the Magistrates' Court and you are now living again with your parents. You are working on the Justice Plan with Mr Mark Stevenson who is here in court today.
Ancillary orders
23 The prosecution have asked me to make an order that you give a sample of your saliva. That is the liquid in your mouth. A sample of that sort is taken by wiping a little stick, like a cotton bud, inside your mouth. Your barrister has told me that you agree to this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offences and your criminal record, that I do order that the saliva sample be taken from you. The sample may be taken by a doctor or nurse or someone else who is authorised, and although you have agreed, if you change your mind, I must inform you that the police may use reasonable force to allow that to take place.
24 The prosecution have also asked me to make orders so the police can get rid of the drugs and things that were taken from your house, to do with your offences. Your barrister has told me that the orders only have on them the items you agree can be got rid of, and so I will make those orders.
Submissions
25 I have talked with the lawyers and Mr Stevenson from Disability Services about the orders that could be made, and there is agreement on the best way to proceed.
Findings
26 I now need to say some things to the lawyers and then I will come back to you and tell you what the sentence is going to be.
27 I received a pre-sentence report dated 28 May 2012. This has some useful material in it, but the report was written before the eligibility for Disability Services was established, and contains one factual error of significance. In one place it states that Mr Harsent sustained his brain injury subsequent to the offences, and in another, refers to the motor cycle accident in 2010, although it later correctly states the accident as 23 February, 2009. Hence, the report seems to have been written without taking into account that this offending occurred 8 months after the accident, which resulted in a significant brain injury, with negative cognitive effects.
28 On the basis of a Neuro-Psychologist's report, Exhibit 1, and a Disability Services Client Overview report and Justice Plan written for the Magistrates' Court, I accept that Mr Harsent has an intellectual disability which was operating on him at the time of the offending. I find that his moral culpability is reduced, denunciation is less of a sentencing objective, and general and specific deterrence are moderated. I find that he is functioning within the mild intellectually disabled range and the causes include the acquired brain injury in March 2009, and a pre-existing learning disability, as well as long term substance abuse. Further, there are mental health issues including active psychotic symptoms, and childhood diagnosis of Attention Deficit Hyperactivity Disorder.
29 Specific deterrence may still be of some importance, given Mr Harsent's previous criminal record and the impact of his long term drug use, especially on his compromised cognitive functioning. As just referred to, there is some material to suggest that there are other mental health issues that may have been impacting on him for some time before the brain injury. I do not make any finding about that today, but it should be investigated further.
30 Mr Harsent's prospects of rehabilitation and the likelihood of him re-offending, are dependent on him receiving assistance to change his ways, and this may be very difficult for the reasons I just referred to. However, he is still a very young man who has now been assessed with a mild intellectual disability and he must be given a chance to change.
Sentence
31 Yes, stand up please, Mr Harsent. So I've just been signing those orders about the sample and also the items that are going to be got rid of, so I am now going to tell you what the sentence is going to be. I am going to release you on a Community Corrections Order for three years and it is going to have exactly the same conditions on it, as the one that you are already on from the Magistrates' Court. So I will make the formal order in a moment, but what it means Mr Harsent is that you just keep doing now, what you are doing now with Mr Stevenson, and you do it for one year longer.
32 Now, if you do not do what you are supposed to do with Mr Stevenson, or if you get into trouble again, then you will be coming back to this court as well as the Magistrates' Court and you know what might happen then. You will end up going back to gaol and you do not want that, do you. All right, now I am also going to ask you to come back to see how you are going at the end of the Magistrates' Court order, so in other words, that goes for two years from last month, so I am going to have you come back just before that to this court and we will see how you are going for that final year for the order in this court. All right, so hopefully I will not see you for another two years and when I do see you, things will have been going well. All right, so just take a seat, Mr Harsent.
33 So the order is that Mr Harsent is convicted and released on a Community Corrections Order for three years starting today. That contains the core conditions and two further conditions: the first to participate in services recommended in the Justice Plan prepared for the Magistrates' Court dated 17 August 2012, and the second, to come back for review to this court by early August 2014, on a date to be fixed. In terms of a s. 6AAA declaration, it is extremely difficult because of the factors that would have still been the same even if he had been convicted after a trial; that is, his intellectual disability, his youth and the delay, so the best I can do is, that there would be a similar sentence with the addition of a monetary penalty for each charge, and I will not be any more specific than that.
34 Now, are there any further orders required.
35 MS HOLLINGWORTH: No, Your Honour.
36 HER HONOUR: All right, thank you. We will just have the Corrections Order printed out. So Mr Harsent, we will have to get you to sign that again, so perhaps you can come out of the dock and take a seat next to Mr Stevenson there. Mr McGlone, which Corrections office is your client going to.
37 MR MCGLONE: (Indistinct).
38 HER HONOUR: Thank you. Yes, all right, I've got the order here. Mr Harsent if you want to come and stand at the end of the table there, Mr McGlone, do you want to discuss just with him.
39 MR MCGLONE: Yes.
40 HER HONOUR: This is the order that we're - if you agree to it, Mr Harsent - that you are going to be on for three years, and Mr McGlone I might just point out that it has a date on it because the computer says there as to be a date, but it will be a date to be fixed, for review in August 2014. Thank you. All right, I've signed that order too, Mr Harsent, so that is now in force. We will get a copy for you and your barrister before you go, and hopefully things will go much better for you and I will see you not until two years time. Thank you also to Mr Stevenson for his assistance. I will stand down.
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