Director of Public Prosecutions v Harvey

[2022] VCC 269

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-02089

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEIL ROY HARVEY

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 November 2021 & 25 February 2022
DATE OF SENTENCE:	10 March 2022
CASE MAY BE CITED AS:	DPP v Harvey
MEDIUM NEUTRAL CITATION:	[2022] VCC 269

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Burglary - Theft - Theft of a firearm - Aggravated burglary - Prohibited person in possession of a firearm - Summary driving offences - Early plea of guilty - Extensive criminal history - Specific deterrence - Disrupted childhood - Aboriginal heritage - Post-traumatic stress disorder - Polysubstance use disorder - Insight into offending - Good prospects for rehabilitation

Legislation Cited: Crimes Act 1958; Firearms Act 1996; Bail Act 1977; Road Safety Act 1986

Cases Cited: N/A

Sentence: Aggregate term of imprisonment of 3 years and 6 months with a non-parole period of 15 months - s6AAA declaration - Aggregate term of imprisonment of 5 years with a non-parole period of 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Sharpley	Office of Public Prosecutions
For the Accused	Mr M. Stanton	Kurnai Legal

HIS HONOUR: 

1Neil Roy Harvey, you have pleaded guilty to the following offences:

i.Three charges of burglary, contrary to s 76 of the Crimes Act 1958.
The maximum penalty for that offence is 10 years imprisonment;

ii.Five charges of theft, contrary to s 74 of the Crimes Act 1958.
The maximum penalty for that offence is 10 years imprisonment;

iii.One charge of theft of a firearm, contrary to s 74AA of the Crimes Act 1958. The maximum penalty for that offence is 15 years imprisonment;

iv.One charge of aggravated burglary, contrary to s 77 of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment;

v.One charge of being a prohibited person in possession of a firearm, contrary to s 5(1) of the Firearms Act 1996. The maximum penalty for that offence is 10 years imprisonment.

2You have also pleaded guilty to the following related summary offences:

i.Committing an indictable offence on bail, contrary to s 30B of the Bail Act 1977. The maximum penalty for that offence is three months imprisonment or a fine of 30 penalty units;

ii.Failing to stop when requested by police, contrary to s 64A of the Road Safety Act 1986. The maximum penalty for that offence is six months imprisonment or a fine of 60 penalty units;

iii.Driving in a manner dangerous, contrary to s 64(1) of the Road Safety Act 1986. The maximum penalty for that offence is two years imprisonment or a fine of 240 penalty units;

iv.Unlicensed driving, contrary to s 18(1) of the Road Safety Act 1986. The maximum penalty for that offence is six months imprisonment or a fine of 60 penalty units.

3You pleaded guilty at committal and prior to the calling of any evidence, and your plea is properly characterised as at an early stage in the proceedings.  Your plea has also facilitated the administration of criminal justice during the COVID-19 pandemic, and I accept that it is evidence of remorse for your offending.  I have taken your high value plea of guilty into account in your favour in mitigation of sentence. 

4You have admitted an extensive criminal history dating to 1988 for a range of offences in the Northern Territory, Queensland, and New South Wales.  You have served numerous relatively short terms of imprisonment which, at the time of your offending, had failed to rehabilitate you and deter you from reoffending.

5A prosecution opening was tendered in evidence, and your offending may be summarised as follows - 

6In December 2020 you arrived in Victoria from Queensland, and were employed as a fruit picker and farmhand in Swan Hill and Werribee. 

7At approximately 6:00 am on 12 March 2021, you entered a property in Bridge Street, Werribee, stole car keys from a table near the front door and then stole the Hyundai vehicle parked in the driveway.

8Later that day, you stole a quantity of petrol from the BP service station on the Geelong bound side of the Princes Highway in Litter River.  This conduct is relied upon in support of Charges 1, 2, and 3 on the Indictment. 

9You then drove the stolen Hyundai to a property located on the lawn of Dean Marsh Road in Benwerrin, forced the door open and stole a quantity of property from the house.  Your offending was recorded on CCTV and is relied upon in support of Charges 4 and 5 on the Indictment. 

10At 2.10 pm, you were observed by police driving the stolen vehicle in Colac and failed to stop when directed to do so.  You drove away from the police at a high speed and in a dangerous and erratic manner.  You were not the holder of a driver's license at that time.  This incident is relied upon in support of the summary charges.  

11Later that day, you entered premises in Irrewillipe East and stole a longarm rifle.  This conduct is relied upon in support of Charge 6 and 7 on the Indictment. 

12You then drive to a farm in Carlisle River and there entered a house whilst carrying the stolen rifle.  The house was, however, unoccupied at that time.  You stole a Nissan Patrol vehicle from the property and drove away.  This conduct is relied upon in support of Charges 8, 9, and 10 on the Indictment. 

13Later that day or early the following morning, you stole a wallet containing approximately $300 from a vehicle in Gellibrand.  This conduct is relied upon in support of Charge 11 on the Indictment. 

14At the time of your offending you were on bail.  It is clear from this summary that over the course of an entire day, you engaged in a series of offences of dishonesty, with no regard for the property rights of others or the security of their homes.  You also drove in a dangerous manner, exposing police and members of the public to the risk of harm in order to avoid apprehension.  This sentence must be calculated to deter others from offending in this manner and to protect the public from acts of dishonesty such as this.  Specific deterrence is also a prominent sentencing consideration in your case, having regard to your criminal history. 

15I have received in evidence a victim impact statement of the owner of the property at Carlisle River, and I accept that your offending seriously disrupted her and her family's sense of security and well-being provided by their home, which they have sold now for that reason. 

16I now turn your personal circumstances.

17You were born in Queensland in December 1970 and are now aged 51.  Your mother is of Aboriginal heritage, from the Wakaman people in Queensland, and is a member of the stolen generations.  Your father is not Aboriginal.  Both of your parents now reside in Rockhampton.  You are the youngest of their five children. Your parents separated when you were 10 and your childhood was seriously disrupted by reason of sexual assaults upon you at the ages of 7 and 12.

18You grew up in Darwin and left Darwin High School in Year 9.  You were thereafter engaged in regular employment in the tourism and fishing industries in the Northern Territory.  At the age of 28, you moved to Queensland and began a food business on the Gold Coast with your then partner. 

19You partner had one child from a previous relationship and you had two children with her.  Your eldest child, Blake, was born in November 1999.  On
17 May 2000, he died as a result of burns he suffered in a fire that engulfed a demountable dwelling in Kulgera in the Northern Territory that the family were temporarily living in.  I accept that this tragedy had a profoundly traumatic effect upon you and your family.  And as a result of medication you and your partner were prescribed for burns you received while trying to rescue your son, you became addicted to painkilling medication and illegal drugs of dependence, and your otherwise relatively stable life unravelled. 

20Your surviving children were taken into care, as you and your partner's lives descended into ongoing drug addiction.  You separated in 2012 and she died in 2015.  Plainly, this is a tragic account of your history at that time. 

21I have received in evidence a comprehensive psychological report prepared to Dr Melissa Wood of Forensicare.  I accept that you suffer from post-traumatic stress disorder and polysubstance use disorder, and your future rehabilitation is dependent upon your abstaining from drug use.  You also suffer from severe anxiety. 

22Your incarceration has facilitated appropriate treatment for your conditions and your mental health has now stabilised.  This in turn has allowed you to undertake vocational courses, and you have also engaged in a significant way with Aboriginal support agencies and your heritage.  You have also been assessed as suitable for in-patient treatment at Odyssey House on your release from prison, and you propose to undertake this treatment.   

23Furthermore, you have provided the court with an impressive letter detailing your insight into your offending and your future plans.  In my opinion, you have progressed well in custody and your prospects for rehabilitation are now good.  I accept that your post-traumatic stress disorder also makes you more vulnerable to anxiety and stress in prison. 

24It was accepted by the parties that it would be appropriate in all the circumstance of this case for me to impose an aggregate term of imprisonment upon you, and I will fix a non-parole period that will allow for your release on parole in the near future and to permit your admission to Odyssey House for drug treatment. 

25I have also had regard to the fact that you have been incarcerated during the COVID-19 pandemic, which has limited your access to appropriate support, counselling, and activities. 

26In the result, the sentence of the court is as follows -

27In relation to all of the charges on the Indictment and the related summary offences, you are convicted and sentenced to an aggregate term of imprisonment of 3 years and 6 months.  I direct that you serve 15 months before becoming eligible for release on parole.  I declare that you have served 363 days by way of pre-sentence detention, not including today.

28But for your plea of guilty, I would have imposed a total effective term of imprisonment of 5 years and fixed a non-parole period of three years. 

29All driver’s licenses held by you are cancelled, and you are disqualified for six months from obtaining a driver's license from 10 March 2022.  Are there any further orders required, Mr Sharpley?

30MR SHARPLEY:  The forfeiture order, Your Honour.

31HIS HONOUR:  Yes.  I will make the forfeiture order sought.  I take that is not opposed, Mr Stanton?

32MR STANTON:  As Your Honour pleases, Your Honour.

33HIS HONOUR:  Those orders will be made.  Thank you. 

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