Director of Public Prosecutions v Harwood

[2018] VCC 312

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR 17-01810

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDREW HARWOOD

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JUDGE:	HER HONOUR JUDGE HARBISON
WHERE HELD:	Wangaratta
DATE OF HEARING:
DATE OF SENTENCE:	19 March 2018
CASE MAY BE CITED AS:	DPP v HARWOOD
MEDIUM NEUTRAL CITATION:	[2018] VCC 312

REASONS FOR SENTENCE
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Subject: Aggravated burglary, causing injury intentionally
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr C. Morgan

HER HONOUR:

1Andrew Harwood, you have pleaded guilty before me to one charge of aggravated burglary, one charge of causing injury intentionally and one charge of damaging property.  These offences occurred arising out of an incident after midnight on 4 May 2017. 

2On that night, you attended at a house in Benalla, together with your co-offender Adrian Scott.  You were armed with a tomahawk and Scott with a pole.  You were both dressed in black clothes and you had the bottom half of your faces covered.  You had gone to that house intending to rob the victims in the house of drugs and money.  At the house at the time you arrived, were five members who all appear to be members of the one family, some of whom were sleeping and others of whom were still awake. 

3I have seen the CCTV video footage of the incident.  In that footage it is clear that you attempted to kick open the front door of the property and then you gained entry.  Once you gained entry you used the tomahawk which you were carrying to smash the windows of the bedroom.  Your victim who was 34 years old at the time, heard the window break and went towards the front door of the house.  Your co-offender or yourself kicked down the door and then you swung the tomahawk which you were carrying at your victim, striking him to the head.  Your victim grabbed a baseball bat to defend himself but your co-accused Scott then struck him with the pole he was carrying. 

4You demanded drugs from your victim and hit him again with tomahawk.  You both then left the house.  As I have said, I have watched the CCTV footage of this attack and I have also been provided with photographs of the victim, immediately after the attack and after he had been medically treated.  The attack which you undertook on him was clearly vicious and unprovoked.  It was very fortunate that he was not more seriously injured. 

5Your actions in entering the house as I have described it, intending to steal drugs,  is the subject matter of the Charge 1 which is the charge of aggravated burglary.  Your attack on your victim is the subject matter of the second charge, which is the charge of causing injury intentionally.  Your breaking of the window of the house is the subject matter of the third charge which is the charge of criminal damage. 

6Your victim suffered from lacerations to the scalp with bleeding and those lacerations were treated with staples.  Thankfully, he did not suffer from any fracture to his head and he appears to have suffered from no long lasting permanent injury.  He has however filed a victim impact statement setting out the physical and emotional trauma which he has suffered as a result of your attack.  He describes your attack as having had a very serious impact on his life and of the life of his family.  He finds it very hard to sleep now.  He has a residual fear of large groups of people.  He lost six months of work because of the mental health issues precipitated by your attack on him. 

7Now Mr Harwood, the maximum penalty for the offence of aggravated burglary is 25 years' imprisonment.  The maximum penalty for causing injury intentionally and for criminal damage is ten years' imprisonment.

8The prosecution accepts that you pleaded guilty at the earliest possible occasion, having done so at the second committal mention at the time when negotiations had taken place as to the appropriate charges arising out of your conduct.  So that second committal mention took place approximately four months after you had committed these offences. 

9You also made full admissions to the police when you were interviewed on the day after this offending took place.  You told the police that you could not really remember what you had done because you had been smoking ice and drinking that night.  However you did not deny that you had been involved in the offending although you could not recall having used the tomahawk and mistakenly thought that it was you who had used the pole.  You also told the police that it was all your idea, not that of your co-offender and that you had forced your co-offender to become involved.  Your co-offender, Mr Adrian Scott has pleaded not guilty and his case has not yet been determined.  It is listed for a contested committal hearing shortly. 

10Now Mr Harwood, you have a dreadful history of prior offending spanning the past ten years.  You are now only 23 years of age and your offending commenced at around about the time that you were 12, almost the earliest time that young offenders are dealt with the Children's Court.  Most concerning is the number of offences that you have committed of a similar description to this that you committed on this evening, although at a lesser stage of seriousness.  But your prior history does include many offences of robbery, burglary and also offences of armed robbery.  It also includes many offences where you have injured other people. 

11In dealing with those offences, both the Children's Court and the Magistrates' Court have in the past given you non-custodial dispositions, that is, they have given you sentences which did not involve terms of imprisonment or if they did involve terms of imprisonment, involved fairly short terms of imprisonment.  It appears that none of those dispositions have been successful.  In the Children's Court, you have undertaken youth justice centre orders and youth residential centre orders.  You have also received youth supervision orders and terms of probation.

12You first came before the Magistrates' Court rather than the Children's Court in January of 2015.  The charges then were charges of burglary and intentionally causing injury, and damaging property as well.  You were sentenced then to a period of imprisonment followed by a community corrections order.

13As I said, none of the dispositions that you have received so far appear to have been successful in changing your behaviour because there are many serious offences for which you have been sentenced to short terms of imprisonment or to rehabilitative orders over the past ten years.

14Mr Harwood, you have been in custody now since the time you were arrested for this offence.  And that means you have been on remand for 318 days. 

15I have received a report from Christopher Kelly who is a consultant psychologist who saw you once at Wangaratta Police Station in February of this year.  His report contains details of your extremely dysfunctional family upbringing and that family upbringing was also highlighted in the defence submissions which were made on your behalf.  Your mother's parenting skills while you were living with her were extremely poor.  You endured great physical violence and neglect during your young life.  You were bullied significantly at school and you have never attended secondary school.  You were hit with a cricket bat in primary school and that appears to have caused some considerable damage to you. 

16You were actually removed from your own family by protective services as a 12-year-old and since then you have lived in foster care arrangements and residential units.  You have lived in many different locations and you have also spent time in Melbourne at the Parkville detention centre.   I am told that living in Melbourne was an added burden to you because your family lives in Benalla and a lot of your early offending came about as a result of your attempts to leave Melbourne and to get back to Benalla. 

17As I have said, you have been the subject of a great deal of violence already in your young life.  You were raped whilst you were in residential care as a young teenager and I am told that that has had an effect on some of your subsequent offending.

18Your father is an extremely violent man who was accustomed to beating you up when drunk.  

19Significantly as a 17 year-old, you were admitted to the Bendigo psychiatric unit with a drug induced psychosis which occurred due to your heavy smoking of cannabis.  You were diagnosed at that unit as having paranoid schizophrenia.  However it appears that you have never received any or any effective ongoing treatment at all for this condition.  All of these matters were dealt with in Mr Kelly's report and were dealt with on your plea.  You told
Mr Kelly that when you smoke cannabis you become paranoid and angry and fight everyone. 

20You told him also that you have had virtually no employment so far during your life, you have had virtually no supportive relationships.  You have had a relationship with a woman in recent years but she has now taken out an apprehended violence order against you and you had one other relationship which appears to have been more satisfactory according to Mr Kelly's account but which does not seem to factor in as any stabilising factor in your behaviour to date.

21Mr Kelly administered a comprehensive violence risk assessment and Mr Harwood, almost all of the factors which he tested for in that assessment produced high scores.  Overall your test results place you in a high risk area for future displays of violent behaviour.  Mr Kelly says that that risk of you reoffending in the future depends on opportunities, circumstance and the presence of stabilising factors and also notes that it is more likely that you will reoffend if you do not seek out adequate support in relation to the use of drugs and alcohol. 

22He describes you as being a man significantly damaged by your childhood experiences, with many significant personal issues which need to be urgently addressed.  You know this yourself because you told Mr Kelly that you describe yourself as a very angry man, and you acknowledged to him that you need to deal with your feelings of anger.  In the past you appear to have suppressed those feelings by using drugs, but your overindulgence in drugs and alcohol has led to uncontrollable rage and destructive behaviour.  This is not a good predictor for the future, Mr Harwood, if you continue on that path. 

23However your acknowledgement of these issues is a very positive development and I note in that respect that Mr Kelly believes that you will require intensive drug and alcohol therapy over several years to try to address some of these issues that I have dealt with so far in these sentencing remarks.  Mr Kelly has helpfully identified some assessments and treatment programs which you will require and it is to be hoped that you will have access to some professional support in order to enable you to do that in the future. 

24It is clear from Mr Kelly's report and from your barrister's submissions to me on this plea that there are no Verdins issues arising out of your psychiatric condition.  That is, there is no suggestion that your psychiatric condition played a part in your offending or that particular weight needs to be given to them in sentencing you today.  But it is very significant that you have been so heavily involved in the use of alcohol and drugs in the past and it is clear that if you can control use of those substances, you could manage your life in a much better way than you have to date. 

25There is also an issue that was raised in previous sentences, Mr Harwood, which is that you are a person of Aboriginal heritage.  I am told by your counsel that you do not wish to rely on your Aboriginality in your plea.  What I say to you, Mr Harwood, is that the court has a particular responsibility for ensuring that as far as possible, sentences for persons such as you, that is, a very disadvantaged Aboriginal person, focus on rehabilitation and that will be a particular focus of the sentence which I am to impose on you today. 

26I agree with your counsel overall, that you come before me today as a man who has a broken life.  I have formed the view that you urgently require supervision, structure and therapy in your life to give you the chance to break out of what has to date, been just a continual cycle of abuse and offending.  This is not to say that other sentencing principles no longer apply.  In your case I am very concerned about the principle of general deterrence as all judges are when sentencing a person for offences such as these.  It is very important to deter others who may be considering committing like offences and that is a very significant part of my sentencing task today.

27I am also very concerned about the principle of specific deterrence.  What that means is the risk that you will reoffend.  I have a duty to protect the community from the sorts of violence that you have inflicted upon members of the community in this offending and in the offending that has preceded it.  It appears from Mr Kelly's report that it is quite likely that you will reoffend in times of anger and stress, unless you take advantage of the opportunities presented to you to rehabilitate yourself and to address your problems of use and the overuse of drugs and alcohol.  Mr Kelly describes you as at present, suffering from major mental illness.  By that he is referring to your condition of schizophrenia, as well as your anxiety and depression. 

28Now Mr Harwood, this is the very first time that you have been before a higher court.  You have been in the Magistrates' Court and as I have said, in the Children's Court but you have received relatively short sentences.  This is a court in which significant sentences of imprisonment can be imposed and you have heard that the first charge which I am to sentence you today, carries a maximum penalty of 25 years imprisonment. 

29I am told that some of the difficulty in sentencing you in the past to the supervisory orders has been the lack of your ability to be able to get to those facilities to fulfil those orders.  I am told for instance that when you were sentenced to a community corrections order, you were required to attend both for t treatment and for the other parts of the order upon the community corrections office here in Wangaratta.  You live in Benalla and have had no way of getting from Benalla to Wangaratta. 

30I am told and I accept therefore that the reason that you have not complied with supervisory orders in the recent past has been that you have not had the wherewithal to be able to get to the places where those facilities were provided.  It seems to me clear that there is no way that I can make an order for supervision of you, which relies upon a community corrections order or the provision of conditions which you would need to voluntarily submit yourself to.  You do not appear to have the capacity to do that.  

31I will therefore provide a sentencing disposition which requires you to serve a significant period of imprisonment, followed by a very much shorter than usual time during which you will not be able to be released on parole.  The reason that I am doing that is in order for the parole authorities to be able to put a regime in place, which you will be required to comply with.  I take this course because you are a young man.  I take the course that I am going to take because of all of the matters about your history which I have identified and which have been identified to me by your counsel. 

32I also do so because of your plea of guilty which has of course spared the community the costs of the trial, but has also spared your victims the trauma of having to relive this experience in court. I take into account the fact that you have expressed sorrow to Mr Kelly for what you did to your victim and that you cooperated fully with the police.  All these matters are very good pointers to the prospect of you being rehabilitated through a strict regime of supervision on parole.

33Mr Harwood, can you stand up please?

34Andrew Harwood, on the first charge of aggravated burglary, you are convicted and sentenced to be imprisoned for 66 months - that is a period of five and a half years.  On the second charge of intentionally causing injury, you are convicted and sentenced to three years' imprisonment.  On the third charge of intentionally damaging property, you are convicted and sentenced to one year's imprisonment.  Now I am going to direct that the charge on Charge 2 be served partially cumulatively on the sentence in Charge 1.  I will order that six months of that sentence be served cumulatively on Charge 1, which means that you will have a total effective sentence of imprisonment of six years.

35I direct that the minimum term to be served before being eligible for parole is two years' imprisonment.  Now that is a very short non-parole period and it is in order for you to have, as I said, the longest possible period of supervision on parole before you go back into the community having served your sentence.  I declare that the period of time that you have already been in custody is 318 days and that period will be reckoned as a period of imprisonment already served under this sentence. 

36I will make a compensation order in the sum of $330, as has been requested and I will also make a disposal order.  I will declare, Mr Harwood, that if you had not pleaded guilty to these charges, then I would have sentenced you to a period of eight years' imprisonment with a non-parole period of four and a half years.  Now, are there any other matters?

37MR MOORE:  Excuse me a moment.  Just to clarify, it was 318 days of pre-sentence detention not including today, Your Honour.

38HER HONOUR:  All right, so if I declare 319?

39MR MOORE:  Yes, Your Honour.

40HER HONOUR:  So the pre-sentence detention will be 319.

41MR MOORE:  Yes, Your Honour.  Thank you, that completes the case, Your Honour.

42HER HONOUR:  Yes, Mr Morgan, anything?

43MR MORGAN:  No.  Thank you, Your Honour.

44HER HONOUR:  All right.  So Mr Harwood, you have now to serve a significant of imprisonment arising out of what you did on this evening.  However as I've said, if you are able to use your time on parole to rebuild your life when you're a young man and you have the prospect of getting back on track and having a happy and productive life in the community.  It's up to you from now on as to which path you wish to take.  Thank you.  Yes, remove the prisoner please.  And Mr Morgan, you can be excused.

45MR MORGAN:  Thank you, Your Honour.

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