Director of Public Prosecutions v Robert Harrison

[2022] VCC 159

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

Case No. CR-19-00294

Indictment no. J11704536.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT HARRISON

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JUDGE:

HER HONOUR JUDGE CARLIN

WHERE HELD:

Ballarat

DATE OF HEARING:

Trial dates: 3 February 2022, 4 February 2022, 7 February 2022, 8 February 2022, 9 February 2022

Plea date: 10 February 2022

DATE OF SENTENCE:

18 February 2022

CASE MAY BE CITED AS:

DPP v Robert Harrison

MEDIUM NEUTRAL CITATION:

[2022] VCC 159

REASONS FOR SENTENCE

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Subject: Criminal

Catchwords: sentence following trial; intentionally causing injury; intentionally causing serious injury; false alibi; lack of remorse; delay between offending and sentence.

Legislation Cited: Sentencing Act 1991 (Vic).

Cases Cited: DPP v Xiberras [2014] VSCA 170; Picone v The Queen[2015] VSCA 5; DPP v Wagner[2019] VCC 1335; DPP v Pourre[2016] VCC 816; The Queen v Madex [2020] VSC 145; R v Kelso [2020] NSWDC 157; and The Queen v Biba [2021] VCS 327.

Sentence: Total Effective Sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years and 2 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Caruso	Office of Public Prosecutions
For the Accused	Mr A. Hands	Emma Turnbull Lawyers

HER HONOUR:

Introduction

1Robert Harrison, on 9 February 2022, after a trial lasting five days, a jury found you guilty of one charge of intentionally causing injury and one charge of intentionally causing serious injury to your neighbour, Jason Scott Rodd, on Saturday 2 June 2018.  By returning those verdicts the jury did not need to consider the various lesser alternative charges that you faced. 

2The jury indicated they had reached their verdict two hours and 36 minutes after commencing deliberations, including their lunch time.  This relatively short period reflects the strength of the case against you and indicates the jury comprehensively rejected your alibi.  This is not surprising given that as well as Mr Rodd, an independent witness who had known you for some 36 years saw you in the immediate aftermath of the assault on Mr Rodd and said so in a contemporaneous Triple 0 call which was played to the jury. 

3Perpetuating the lie you told in your record of interview by calling your brother to give alibi evidence you knew to be false illustrates the extraordinary measures you were prepared to take to avoid your responsibilities.  The suggestions that Mr Rodd self-inflicted his injuries and was motivated by some sort of vendetta against you were further attempts to deceive the jury and recognised by them as nonsense.  I do not treat any of these matters as aggravating your offending, but they do demonstrate your complete and utter lack of any remorse, which in turn bears upon your prospects of rehabilitation and the need for specific deterrence and community protection.  I will return to those considerations later in these remarks.

4A plea on your behalf was conducted before me the day after the verdict, that is, on 10 February 2022, and it now falls to me to sentence you for your conduct.  Your counsel, Mr Hands, conceded that a term of imprisonment was warranted on the intentionally cause serious injury charge but contended that a combination sentence, meaning a total term of less than 12 months combined with a Community Corrections Order was within range.  The Prosecution submitted that a head sentence and non-parole period was called for. 

5In arriving at an appropriate sentence, which in your case really means the length of the term, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[1]   Some tend towards leniency, and some point the other way.  No one factor automatically prevails over any other.  Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.

[1] Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).

Circumstances of the offending

6Turning first to the circumstances of your assault upon Mr Rodd. 

7The facts I find consistent with the jury’s verdict are as follows. 

8Upon returning home on 2 June 2018 from an afternoon of drinking Mr Rodd found his letter box damaged.  Rightly or wrongly he immediately suspected someone in your family to be the perpetrator.  Unwisely, and somewhat intoxicated, Mr Rodd decided to exact revenge by smashing your brother Doug’s car window with a jemmy bar.

9You and Doug heard the damage and immediately emerged from your unit.  You crossed the street to Mr Rodd’s house and smashed the front and side windows.  Mr Rodd, who was then inside, came out and approached the two of you near Doug’s car.  He was unarmed and keen not to further antagonise you.  You, on the other hand, were, to use his words, ‘revved up’ and wanting to fight.  You complained about Mr Rodd smashing Doug’s car when he, meaning Doug, had done nothing to him.   There followed some ‘dodging and weaving’ between at least you and Mr Rodd, whereupon you pulled out a sharp object, resembling a steak knife, from your back pocket and stabbed Mr Rodd above his left eye.  This conduct constitutes Charge 1, intentionally cause injury.

10Mr Rodd then returned to his place, retrieved three $100 bills, and walked back towards you and Doug.  He handed Doug the money as recompense for the car window.  Whilst this seemed to appease Doug who began walking back to your unit, you remained enraged.  You charged at Mr Rodd striking him with what he described as a ‘king hit’.  He did not see you coming and was knocked to the ground onto his back.  Whilst he was laying defenceless on the ground you proceeded to strike him to the face with a metal bar of some sort, possibly the jemmy bar he had used to smash Doug’s car window.  Doug yelled at you to ‘stop, stop’ and you did, but not before you delivered three or four heavy blows to Mr Rodd’s nose and mouth.  Mr Rodd described himself as conscious but ‘bobbing in and out’.  This conduct constitutes Charge 3, intentionally cause serious injury.

11At around this time the independent witness, Michelle Rumble, and her husband Sean, were walking back from buying some takeaway.  They saw Mr Rodd lying on the ground just outside your unit with blood all over his face and head and you and Doug nearby.  Whilst Mrs Rumble was on the phone to the Triple 0 operator, you left the scene on foot, then returned before driving away. 

12Mrs Rumble did not know Mr Rodd, but assumed, correctly it seems, that he was the same person they had seen on the way to the takeaway, about 10 to 15 minutes beforehand, kicking and yelling at your front door.  

13The Rumbles and Doug tended to Mr Rodd whilst waiting for the ambulance to arrive.  You did not return and were, no doubt, already planning your alibi.

14Mr Rodd was conveyed to Ballarat Base Hospital for treatment.  He had significant bruising and swelling around both eyes, a deep laceration to his top lip which was treated by surgery under general anaesthetic, fractures to his central nasal bone (the vomer), fractured teeth, a wound above his left eyebrow which required stitches and a lesser wound to the back of the head, which occurred either when you first struck him in your second assault or when he hit the ground after that blow.  Ultimately Mr Rodd lost four teeth as a result of your assault and required extensive dental treatment, including bone grafts, rods and implants.  He still suffers from nasal congestion and has a sensation of tightness on his top lip.  Further surgery will be required to ameliorate that feeling. 

15The wound above Mr Rodd’s left eye occurred during your first assault.  All the other injuries occurred during your second assault and the jury accepted that they were substantial and protracted and therefore met the definition of serious injury. 

Your personal circumstances

16Turning to your personal circumstances.  These were outlined orally by
Mr Hands.  I was not provided with any psychological or psychiatric assessment, but Mr Hands tendered a letter from your treating general practitioner, Dr Chris Ryan, dated 4 May 2021, and discharge summaries from Ballarat Base Hospital.

17You are now 50 years old.  You have three older brothers and one older sister. Mr Hands described your family as ‘united in adversity and poverty’.  The depth of the bond was demonstrated by the fact that two of your brothers, Doug and Peter, gave evidence in your trial and, I am satisfied, lied to protect you.  Your sister lives in New South Wales but remains in contact.

18Your living situation is precarious.  You have next to no assets.  You do not own property and do not own a car.  You spend most of the week staying at your mother’s one-bedroom unit on Maple Ave, Wendouree, where you were on 2 June 2018.   Doug also lives there and is your mother’s carer.  You and Doug sleep in the lounge room, whilst your mother has the bedroom.  You apparently frequent your brother Peter’s place on weekends, and this is where you claimed to be at the time of the assault.  He also lives in Wendouree.

19Your family has had its fair share of health issues and trauma.  In 1989 Peter sustained a brain injury and lost his wife and two young sons in a serious car accident; your brother David has had both legs amputated above the knee after developing blood clots; Doug has some sort of breathing condition; your mother, now in her 80s, is in poor health and has heart problems.  You all support each other day to day.

20Dr Ryan’s letter indicates you are on methadone for opiate dependence.  You suffer chronic pancreatitis for which you are prescribed Creon and Lyrica.  You have had multiple admissions to the Emergency Department with acute exacerbations of your pancreatitis, including in April 2021.  You instructed
Mr Hands that flare ups can be triggered by stress and that you must be careful with your diet and not drink alcohol.  You also suffer from depression for which you are prescribed Mirtazapine.

21You were in a relationship with a woman for 24 years.  You have two adult children from that relationship, a daughter, 28, and a son, 30.  Your daughter lives in Darwin and has two children, your grandchildren.  Despite the distance, your daughter stays in contact and offers support, for example, by calling you during the trial.  Your son, Scott, was referenced in the trial by multiple witnesses, including Mr Rodd.  He is currently serving a sentence imposed by the Ballarat Magistrates’ Court in February this year.  You are close to him although you acknowledged in your record of interview that he was somewhat out of control.

22Your last job was over 20 years ago and that was as a slaughterman.  You are in receipt of the Disability Support Pension.  I take into account your somewhat impoverished personal circumstances, both social and economic. 

Objective Gravity of your offending and moral culpability

23Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender.  The inherent seriousness of the offences of intentionally causing injury and intentionally causing serious injury are reflected in their maximum penalties of 10 and 20 years respectively.  That said, the offences encompass a broad spectrum of offending. 

24I take into account that your assaults were spontaneous and occurred against a background of Mr Rodd’s initial provocative behaviour.  I also accept that the injuries you caused are in the low to mid-range of injuries for each offence.  However, whilst the seriousness of the injuries caused is important, it is not the most important factor in assessing seriousness.  Your offences are aggravated by your use of weapons and the fact you were on a Community Corrections Order at the time.  The initial provocation did not justify in any way your stabbing
Mr Rodd above the eye, let alone beating him with an iron bar especially since by that time he had sought to make peace.  Your offence of intentionally cause serious injury is further aggravated by the fact you first struck him without warning, then repeatedly struck him whilst he was lying defenceless on the ground and then effectively left him for dead, without any regard for his well-being. 

25All up I consider both your offences to be at least mid-range examples of their crimes and your moral culpability to be high.

Current Sentencing Practices

26One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.[2] 

[2] The rationale for doing this is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles. 

27The most recent Sentencing Advisory Council Statistics of the higher courts (21 July 2021) indicate that 93 per cent of people sentenced for intentionally cause serious injury over the five years between 1 July 2015 and 30 June 2020 received an immediate term of imprisonment ranging from a number of months to 14 years, with five to six years being the most common sentence at 22 per cent.  This wide variation of sentences reflects the vast disparity in seriousness of the offence.

28Whilst no two cases are ever truly the same, of more use than statistics are sentences imposed in comparable cases.  Such sentences are not binding precedents to be applied or distinguished, nor do they set the outer parameters of appropriate sentences, but they are a guide or yardstick against which to measure any sentence proposed in the instant case. 

29I have had regard to the four cases to which I was referred by the Prosecutor, two Court of Appeal and two County Court sentences,[3] however again their usefulness is limited by the wide disparity of circumstances of offending and offender. 

[3] DPP v Xiberras [2014] VSCA 170; Picone v The Queen[2015] VSCA 5; DPP v Wagner[2019] VCC 1335; and DPP v Pourre[2016] VCC 816.

30I have also had regard to the three cases to which I was referred by Mr Hands.[4]  These cases were provided not so much as comparative sentences for your offending, but rather as illustrations of the impact of mitigating circumstances and in support of the argument for a combination sentence. 

[4] The Queen v Madex [2020] VSC 145; R v Kelso [2020] NSWDC 157; and The Queen v Biba [2021] VCS 327.

31All these cases and the statistics serve to highlight the fact that ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of your case.

Impact of your offending

32I am also required to take into account the impact of your offending on your victims and their personal circumstances.[5]

[5] Sentencing Act (n 1) s 5(2)(daa), (da) and (db).

33Mr Rodd provided a victim impact statement which was read to the court by the Prosecutor at the plea.  He described his emotional response to the assault as being one of ‘helplessness, extreme pain, grief, fear, anxiety, stress and depression’. 

34Mr Rodd also detailed the injuries he sustained in the assault which I have outlined previously in these remarks.  Importantly, he noted the ‘ongoing pain for over three years’ due to the injuries to his teeth, demonstrating the protracted impact of the offending.

35Mr Rodd also stated that he moved house ‘for safety’ and incurred financial expenses and missed work as a result.  It is clear the assault led to upheavals in multiple aspects of Mr Rodd’s life and, that as well as the physical injuries, it had a significant impact on his sense of wellbeing.

Your character and prospects of rehabilitation

36Your criminal history dates back to 1994 and consists of drug related offending, including drug trafficking, except for one drive whilst disqualified and one theft of motor vehicle.  As I have already noted, at the time of the instant offending you were on a Community Corrections Order, which was imposed on 5 October 2017 for the theft of motor vehicle.   It is concerning that you have not been deterred from offending by your previous dispositions, which have included imprisonment in 2000.  It is also concerning that you have shown absolutely no remorse for your assault on Mr Rodd.  To the contrary, not only did you deny the crimes, you ran a spurious defence which, as I have already mentioned, involved the calling of false alibi evidence and the attribution of malice to your victim.  Your preparedness to run your case in that way reflects poorly on you and does not augur well for your future.

37On the other hand, it is comforting that you have no prior convictions for violence, and further that whilst of long duration, your history is limited, involving only seven prior court appearances.  Further, the instant offences were not premeditated, and since June 2018 you have abided by your bail conditions and committed no further offending. 

38All up and taking into account your age and health, I consider your prospects of rehabilitation to be reasonable.

Other mitigating factors:

39There are two other mitigating factors to mention, the first is delay:

40I take into account as a mitigating factor the significant delay between offending and sentence.  You were committed to the County Court in February 2019 following a contested committal.  Your trial was originally listed to commence in March 2020 but then COVID struck, and your trial did not get on until February 2022.  Clearly there would not have been this delay had you pleaded guilty, however you had a right to run your trial and the fact is you have had the uncertainty of the outcome hanging over your head for over three and a half years.

41The second mitigating factor is the burden of imprisonment:

42Whilst Mr Hands conceded that you would be able to receive appropriate treatment for your pancreatitis in prison, he submitted that nevertheless your condition will make prison more burdensome for you.  I accept that a term of imprisonment will be harder for you, a man of 50 in poor health, than someone younger and stronger. 

43I also take into account the fact you are being sentenced during the COVID-19 pandemic and that a term of imprisonment during the pandemic is generally harder than at other times.  Quite apart from the worry of an outbreak of the virus in prison, you will suffer from the curtailment of various activities and programs, the reduction or suspension of personal visits and occasional lockdowns. 

44Finally, I accept that not being able to see your family on a regular basis, including your mother, will be very hard for you given how close you all are.  Quite apart from any restrictions imposed because of COVID and depending on where you are placed, your family’s financial state may make personal visits difficult.

Purposes of Sentencing

45I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community.[6]  A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.

[6] Sentencing Act (n 1) s 5(1), (3).

46The principles of denunciation and general deterrence weigh heavily in sentencing for crimes of violence such as yours.  Further, some degree of specific deterrence and community protection is required in your case, not so much to stop future crimes of violence although that is relevant, but to stop future crimes at all.

47Weighing up the competing considerations as best I can, I consider that all the relevant sentencing purposes can only be met in your case by the imposition of a term of imprisonment on both charges and by a total effective sentence that involves a head sentence and non-parole period.  Your conduct is just too serious to make a combination sentence appropriate. 

48Allowing for the principle of totality and the need for my sentence to reflect the different instances of your offending, I also consider that some modest cumulation between Charges 1 and 3 is required. 

Sentence

49On Charge 3, the charge of intentionally cause serious injury, I convict and sentence you to four years and four months.  This is the base sentence.

50On Charge 1, the charge of intentionally cause injury, I convict and sentence you to eight months, two months of which is cumulative on Charge 3. 

51The makes a total effective sentence of four years and six months (54 months).

52In respect of that sentence, I set a non-parole period of three years and two months (38 months).

53That is the earliest time at which you can be released but it is up to the Adult Parole Board as to whether you are released after serving that minimum period.

Presentence Detention

54I understand that there is no pre-sentence detention.  I declare that you have served no days by way of pre-sentence detention, in respect of this sentence.

55I understand there are no ancillary orders, nothing else sought?

56MS CARUSO:  No, Your Honour.

57HER HONOUR:  First of all, Mr Harrison, could you stand up please.  You understand the sentence that I have imposed?

58OFFENDER:  Yes, Your Honour.

59HER HONOUR:  Are there any matters I need to attend to before I adjourn?

60MS CARUSO:  No, that is everything, Your Honour.

61MR HANDS:  Your Honour, I think I've been muted.  Have I been muted, Your Honour?

62HER HONOUR:  No, we can hear you, Mr Hands.

63MR HANDS:  I'd ask that his medical record be placed on the remand so that the prison authorities will know what medication he is on.

64HER HONOUR:  Was that medical record tendered during the plea?

65MR HANDS:  Yes.  Dr Ryan's report and the references to the Lyrica and the other antidepressant medication.

66HER HONOUR:  I direct that the medical records be provided to the prison authorities as soon as possible.

67MR HANDS:  Thank you very much.

68HER HONOUR:  Adjourn the court, thanks.

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