Director of Public Prosecutions v Harvey

[2018] VCC 308

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01466

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY WILLIAM HARVEY

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2017
DATE OF SENTENCE:	22 February 2018
CASE MAY BE CITED AS:	DPP v Harvey
MEDIUM NEUTRAL CITATION:	[2018] VCC 308

REASONS FOR SENTENCE
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Subject:
Catchwords:              Recklessly cause serious injury.
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Duckett	OPP
For the Accused	Mr J. D. Williams	VLA

Pages 1 - 6

 

 

HER HONOUR: 

1Anthony William Harvey, you have pleaded guilty to one count of recklessly causing serious injury.  The maximum penalty for this offence is 15 years. 

2On Saturday 22 April 2017 you were living at a boarding house in Mitcham.  At about 4 o'clock you got into an argument with another resident, Robert Sedawie, who was then aged 46.  You moved behind Mr Sedawie and put your hands around his neck and began choking him.  He was unable to breath or talk and you continued to apply pressure to Mr Sedawie's neck until he lost consciousness and fell to the floor.  You then stomped on Mr Sedawie's head a number of times and placed your foot on his throat.  Another resident saw you doing this.  He yelled at you to get off Mr Sedawie and feared you were going to kill him.  Another resident called the police and ambulance.  Mr Sedawie was lying on the floor and slowly gained consciousness.  He was taken to Royal Melbourne Hospital with life threatening injuries.  That assault is the conduct constituting Charge 1, causing serious injury recklessly.  You were arrested by police at the scene and were in an agitated state. 

3When Mr Sedawie regained full consciousness he felt considerable pain to his throat, chest and head.  He was in intensive care for three days then discharged from hospital on 27 April.  He has continued to suffer ongoing pain in his throat, especially when talking and swallowing.  No victim impact statement has been provided.  However, clearly your offending has had a significant impact on Mr Sedawie, with him suffering serious injuries as a consequence of your violent assault on him. 

4You are currently aged 29 and were born in Canberra.  At a very young age you and your sister were placed in foster care with Allan and Carol Sharp.  You remained in their care until you were 17.  You receive assistance and attended a special school to complete your education from Year 7 to 11. 

5After leaving school your placement with your foster parents broke down, due to your behavioural issues and conflict with them.  Though I understand since this time you have had periods living with them and they have remained supportive of you.  Your father has attended many of the relevant court hearings. 

6You have had frequent periods of transience and homelessness.  As noted at the time of the offence, you were living in a boarding house in Mitcham with nine other residents. 

7I received a comprehensive report from Associate Professor Warwick Brewer, neuropsychologist, dated 7 November 2017.  He had other historical DHS reports available to him.  I take all of that information into account. 

8You were diagnosed with an intellectual disability when you were aged four.  You have had a long psychiatric history, including 17 admissions in the past two years stemming from late adolescence with diagnoses including depression, borderline personality disorder, antisocial personality disorder and substance use disorder (see paragraph 28).  As to the latter, you also have a long history of heavy methylamphetamine, cannabis and other substance use.  Hospital admissions have related to acute suicide ideation or attempts. 

9You have a number of prior convictions dating back to December 2007.  These include for unlawful assault and robbery.  I note that you have a prior for attempted armed robbery and received a term of YJC for three months.  However, this occurred in 2008.  Since that time sentences imposed on you have effectively been community based.  Your time on remand is the longest period of custody you have been required to serve. 

10Associate Professor Brewer is of the view that you have a multitude of developmental risk factors (see paragraph 29) and that your current cognitive profile reveals a man of overall borderline intellectual capacity.  As noted by Associate Professor Brewer, it is evident that you tend to decompensate significantly when your living circumstances become chaotic and disorganised, in combination with your substance abuse.  He is of the opinion your vulnerabilities are only exacerbated by your illicit substance abuse, and appear to be directly associated with your criminal offending. 

11Associate Professor Brewer is of the opinion that if you are released into the community, it is very likely, or there is a high risk, that you will relapse into your usual pattern of substance abuse with its associated impact of increased risk for aggression, violence, mental status decompensation and compounded cognitive processing vulnerabilities (see also paragraph 36).

12I was provided with various DHS reports dating back to 2006, which outline your involvement with that and other agencies.  In the most recent client overview report, dated 14 December 2017, which summarises your history of involvement with the department, it is apparent that there has been little success in engaging you on a long term basis in addressing your alcohol and drug use. 

13You have previously been placed on a Community Corrections Order with a Justice Plan and breached such an order.  On a more positive note, you have had a relatively long established engagement with NEAMI, a community health outreach service, since February 2015.  You have maintained contact with them since you have been in custody.  I received a report, and also heard evidence, from Damien Medley from that organisation. 

14It was somewhat troubling that you are engaged with this service when this offending occurred.  However, I was informed that an increased level of assistance can be provided to you, particularly in respect of more suitable accommodation, and an increased level of monitoring.

15The focus of the plea was clearly the tension that exists between the sentencing principle of protection of the community, and a recognition that your intellectual functioning impacts on your moral culpability and the application of general and specific deterrence and denunciation.  The relevant issues are clearly articulated in the sentencing submissions filed on your behalf by your counsel.

16Clearly, your offending should be viewed in the context of your intellectual disability and personality disorder.  Principles of general and specific deterrence should be moderated.  I accept that your moral culpability for this offending is also reduced.  However, I am also mindful of Associate Professor Brewer's opinion regarding your high risk to the community and your progress whilst you have been in custody, being drug free and in a regimented routine and environment. 

17Reference was made to a number of authorities relating to offenders with similar characteristics, who are sentenced for very serious offences, many involving high levels of violence.  I have considered those authorities and the relevant sentencing principles, as are applicable to the current task before me. 

18You have pleaded guilty to these matters at the first opportunity.  I accept that your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  Mr Sedawie was not required to give evidence and relive the traumatic incident. 

19You did not demonstrate any remorse when interviewed by police.  Though, given your intellectual disability and level of functioning, you have limited insight into your offending.  As noted by Associate Professor Brewer, the evidence regarding any organised cognitive appreciation of the impact of your behaviour and remorse for the same, remains very limited. 

20It was not in dispute this was very serious offending.  You involved yourself in an argument that quickly accelerated into you attacking Mr Sedawie and placing him in a life threatening situation. 

21Your counsel submitted that a combined disposition was appropriate, that you should be assessed for a Community Corrections Order with a Justice Plan attached.  The matter was adjourned last year, to allow for a full assessment and came back before me on the last sitting day in 2017.  I received a client report, relevant certificate and Justice Plan, and considered the material in each document. 

22Further, you have been assessed as suitable for a Community Corrections Order by Corrections, with Justice Plan conditions and other conditions, including supervision, treatment and rehabilitation re: drugs, and to reduce offending and a recommendation of judicial monitoring.  The report, however, highlighted the need for concrete plans regarding your accommodation on release. 

23It was for the purpose of exploring a number of options with representatives from NEAMI and Damian Medley on Thursday 8 February, that I granted you bail effectively for a day so that you could attend interviews with a number of accommodation services. 

24The prosecution argued you should be required to spend more time in custody, and that a combination sentence, or a term of imprisonment with a CCO at its expiration, was outside the range of sentencing options available to me.  I have some concern that the situation regarding your accommodation on release has not been formally planned or organised. 

25Given the level of risk that you pose to the community, and to yourself, combined with the likelihood of a return to uncertain living conditions, and a return to a pattern which includes substance abuse, it is imperative that proper plans are put in place to ensure that you and other members of the community can be safe.

26Despite significant efforts made by a number of organisations, in relation to a suitable accommodation, that does not appear to have come to fruition.  The future remains a little uncertain, though helpfully funding issues can be sorted by your release date, liaising with the Parole Board. 

27Could you stand up please, Mr Harvey?  In respect of the charge of recklessly causing serious injury, you are convicted and sentenced to a term of imprisonment of three years.  I set a non-parole period of 18 months.

28Pursuant to s.16AAA of the Sentencing Act, if you had not pleaded guilty to this matter I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years.

29I declare pre-sentence detention of 306 days.  Are there any other matters? 

30MR WILLIAMS:  No.

31MS DUCKETT:  There are no further orders, Your Honour.

32HER HONOUR:  Thank you.

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