Director of Public Prosecutions v Harvey

[2017] VCC 1681

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-01480

DIRECTOR OF PUBLIC PROSECUTIONS

v

LESLIE GRAHAM HARVEY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2017
DATE OF SENTENCE:	16 November 2017
CASE MAY BE CITED AS:	DPP v HARVEY
MEDIUM NEUTRAL CITATION:	[2017] VCC 1681

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For Director of Public Prosecutions	Mr P. Triandos	The Office of Public Prosecutions
For the Accused	Mr R Davis	Rob Davis

HIS HONOUR: 

1Leslie Graham Harvey, you have pleaded guilty to one charge of recklessly causing serious injury.  That crime carries a maximum penalty of 15 year's imprisonment.  You also pleaded guilty to one uplifted summary matter of commit indictable offence whilst on bail.  That carries a maximum penalty of three months' imprisonment.  You pleaded guilty at an early opportunity and made relevant admissions.  You are now 63 years of age.  You must get the utilitarian benefit of that plea of guilty in a situation where you could have chanced your arm and the complainant may not have sworn up.

2You have a very long criminal history dating back to you being made a ward of the state in probably the late 1960s.  You have prior convictions for all sorts of offending and you have been gaoled on numerous occasions.  I have no doubt that you have over the years been institutionalised.  It is of some comfort to see that in terms of serious assaults you have now not been convicted of one for approximately 25 years.

3You are currently undergoing a sentence of 16 months with an eight-month minimum term, that minimum term I am informed having expired yesterday.  You were extradited from Queensland in relation to these matters and other matters and accordingly, having been sentenced on 1 April, you have approximately seven months of Renzella time, though of course that is not to be done as a mathematical equation but it is significant in your situation bearing in mind your age and the concept or principle of totality.

4A summary of the evidence is that there had been disputes between you and others over money owing.  The complainant in the matter, a Mr Thane Jago, who is known to me, denied that any money was owing.  He came to your house to have it out with the person who claimed that was what had occurred.  That was a Mr Sell.  Mr Jago came and asked Mr Sell to come outside; he did.  An altercation then ensued.  Mr Jago is a person with an extensive criminal history and years in prison and is currently facing assault charges.

5You came outside, took a folding knife from a pouch on your belt, and stabbed Mr Jago with it twice, once to the right side of his chest approximately 5 cm below his nipple and once to the right chest at approximately the eighth rib.  You and Mr Sell then returned inside the house and the complainant then drove to a friend's house, Mr Danny Hornsby, who is also, of course, known to me.

6An ambulance was then called and the complainant was taken to hospital.  He says he spent three to four weeks in hospital.  You were on bail at the time of the offending and that gives rise to the summary charge.

7The Crown opening which has been tendered has a medical description of the injuries suffered and future implications.  I take that at face value; however, it does seem to me to be somewhat speculative.  What would not have been known to the author of that medical report was that this offending occurred on 17 December 2016.  The complainant was in hospital for about three or four weeks, he says.  Within a month of his release from hospital he was engaging in conduct which has resulted in him being on trial in this court for assaulting his then partner and assaulting another person, and within a month or so after that he is in for serious assault on you.  I can only infer that he made a reasonably good recovery in a reasonably short period of time.

8In any event, I look at the milieu in which all this took place.  I am well aware of the character of the victim, but you cannot stab people, it is as simple as that, and it has to carry gaol in my view.  The offending has to be regarded as serious.  It calls for the application of general deterrence.  In your  circumstances, bearing in mind your antecedents and your age, I think specific deterrence does not play a large part at all and the other factor is one of punishment, bearing in mind totality.

9A number of reports were tendered on your behalf and they will be Exhibit 1.  Also tendered was a preliminary brief made by an informant in relation to an assault on you.

10There has been a very significant level of extra-curial punishment insofar as you are concerned.  On 19 April, you - and you are now an in protection prisoner, I take that into account - were apparently for reasons unknown to me in mainstream.  You were placed in a unit and there was immediately a loud bang and you were seen lying on the ground.  The complainant in this matter,
Mr Jago, had punched you and had kicked you and it was a very serious assault indeed.  He left you lying there when prison staff came to your aid.

11You received in that assault in gaol as a direct consequence of this offending a nasal fracture, a complex fracture broken at multiple points to the right zygomatic maxillary, that is your cheekbone, right maxillary sinus fracture, broken in multiple points, a right orbital fracture, right eye socket, that involves three out of the four walls of the eye socket.  You underwent surgery, had metal plates and screws inserted into your cheekbone and eye socket.  They are serious injuries in my view.  I do not know whether the matter is going to go for trial or where it is going to be, but Mr Jago awaits his punishment for that if he is ultimately convicted.

12Insofar as your personal history is concerned, it was indicated during the course of the plea it is a sad indictment on the history of this state in regard to juvenile offending and child protection applications.  You were born in either West Heidelberg or Carlton, depending on which report you read.  You were in a family where there was extreme violence.  You had a number of brothers and sisters.  You were made a ward at 5 years of age, some of them were made wards.  You spent two years at Allambie, an institution well known to me.

13You were then sent to Pleasant Creek Special School near Stawell where you remained until the age of 16.  It was apparently basically a home for wards with classrooms attached, from what I can gather.  You spent the next two years after that at Bendigo Boys Home and you were released from wardship, I would assume, at the age of 18.  Your mother has now been dead for 14 years and your father died at the age of 79.

14During the period of that wardship you suffered, I accept, physical, mental and sexual abuse on a repeated and extended basis.  Upon finally being able to leave the Bendigo Boys Home you went back to the family home in West Heidelberg where you said it was all very strange, and you still to this day struggle to understand how you came to be in care.  The report from
Mr Simmons, which I am referring to as I make these comments, said that you were a bit slow and he is concerned there may be an intellectual deficit and that may well be true.

15He points out that you had real trouble moving from an institutionalised setting at the age of 18.  He points out that you suffered a stroke some ten years ago and have not worked since, and I take that into account insofar as your health is concerned.  He goes into some detail about the sexual assaults on you.  I understand that there is a matter pending in relation to that.  Clearly, as a result of that you began drinking alcohol  You were to an extent dependent upon alcohol for about 15 to 20 years, a lot of offending taking place during that time.  As has been a sad indictment again on this state, between the age of 35 to 40 you began using methamphetamine which you had been introduced to by your peers.  You stated you never injected any drugs but you have clearly had a long history of drug and alcohol problems.

16Insofar as relationships are concerned, when you were again around about 35 you met a lady with whom you formed a strong relationship which lasted for ten years.  At one point in time you were at work and she and your two children, aged nine and eight, died in a caravan fire.  You struggled emotionally with that, somewhat understandably, and I would have no doubt that that has continued with you to this day.  You have now been in another relationship with Ms May, who was apparently present when all this occurred, that is the stabbing, for the past 16 years.  Since you have been in custody, having been extradited from Queensland as I have indicated, the house has been trashed and she is endeavouring to reinstate it so that upon your ultimate release you will have somewhere to go.

17You also suffer from chronic osteoarthritis as a result of a motor vehicle injury.  Mr Simmons also goes into the assaults that were inflicted upon you in prison by Mr Jago.  He reports that you are unable to be in crowds at the present time.  You claim when you are in crowds you become nervous and "feel funny".  You described numbness in your hands, pains in your stomach and changes to both your breathing and heartrate, hyperarousal, hypervigilance and a number of other symptoms which are clearly indicative of a post-traumatic stress disorder that has now been going on for some period of time.  You add that you feel less safe since the assault, have intrusive thoughts.  I have no doubt that disorder will be longstanding and a real consequence to you. 

18As a result of that assault you have not only suffered significant or serious physical damage; you have suffered ongoing, very significant psychological damage.  That post-traumatic stress may well have existed prior to the assault and, as the psychiatrist pointed out, it may be that the assault has exacerbated it.

19Mr Simmons then goes on to give his opinion, which is in some detail.  I am well aware of the decision in Muldrock and those sorts of cases, you are undergoing the sentence in protection.  You are 63 years of age, you do have somewhere to go on your ultimate release.  You have now been able to not use in gaol, I would accept, for a period of some seven months and prior to your extradition from Queensland you instructed your counsel that you had been able to be drug-free for a period of around about nine months.

20Taking all those matters into account, a gaol sentence remains inevitable but in my view it is a situation where a judge is entitled to exercise a degree of mercy in the passing of that sentence.  Accordingly, even though I find your prospects of rehabilitation would have to be guarded, and the risk of you reoffending on any objective test would be high, I think it is worth it and at your age it may be your last chance.

21Accordingly, on the charge of recklessly cause serious injury, 12 months. On the charge of commit indictable offence on bail, one month concurrent. I direct that you serve a minimum term of six months before becoming eligible for parole. That gives a sentence of 12 months with a six-month minimum term. I direct that that be served concurrently with any other sentence currently being undergone. It is my understanding that because the minimum term on the sentence you are undergoing has expired, I simply make it as a minimum term on mine and leave it at that, so that pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty I would have sentenced you to be imprisoned for a period of 18 months with a minimum term of 12.

22There is no other order?

23COUNSEL:  No.

24HIS HONOUR:  Yes, thank you, gentlemen.

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