Director of Public Prosecutions v Scott Harrison

[2020] VCC 1260

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00516

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT HARRISON

‑‑‑

JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2020
DATE OF SENTENCE:	19 August 2020
CASE MAY BE CITED AS:	DPP v SCOTT HARRISON
MEDIUM NEUTRAL CITATION:	[2019] VCC 1260

REASONS FOR SENTENCE
‑‑‑

Subject:  CRIMINAL LAW SENTENCE

Catchwords:   Criminal law - Sentencing- Attempted armed robbery – Theft – Handling stolen goods – Aboriginal offender – Bugmy – Intoxication – Combination sentence – Nine months imprisonment with a two-year CCO – Condition to attend 16 week Dardi Munwurro program.

Cases Cited:
Sentence:

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Harrison	Office of Public Prosecutions
For Accused	Mr D. Barrese	David Barrese and Associates

HIS HONOUR:

1Scott Harrison, you have pleaded guilty to one charge of attempted armed robbery, one charge of theft and one charge of handling stolen goods.  You have also pleaded guilty to one charge of committing an indictable offence whilst on bail.

2The maximum penalty for attempted armed robbery is 20 years imprisonment. The maximum penalty for theft is 10 years imprisonment.  The maximum penalty for handling stolen goods is 15 years imprisonment.  The maximum penalty for committing an indictable offence whilst on bail is three months imprisonment.

3The facts of the matter are set out in the agreed circumstances of offending which is Exhibit A on your plea and forms part of these reasons for sentence.

4You are 38 years old, as you were at the time of the offending.

5In brief, the attempted armed robbery is constituted by you following the victim whilst he was in his car leaving his house and you were riding a bicycle.  You were intoxicated at the time and you have stated that you were confused and do not have a recollection of intentionally following the victim in his vehicle, but this was certainly the way it appeared to your victim.

6Your victim attended an ATM in Bonwick Street Fawkner, which was about a minute’s drive from his house. At approximately 3:23am your victim commenced withdrawing money from the ATM, at which point you stopped your bike in the middle-of-the-road facing his direction.

7As your victim continued to use the ATM he looked back down the street and saw the flashing light of your bike moving toward him.

8You rode your bicycle on the footpath towards the victim, fiddling in your pockets, before riding past him and looking in his direction.  Once you passed the victim you stopped a few metres from him and turned to watch him at the ATM.  Your victim could hear you mumbling something but was unable to make out what you said.

9The victim received his money from the ATM and started walking back towards his car.  You called to him to, 'give me some money.'  You turned the bike around and rode it to the front of the victim’s car, following him as he got into the vehicle.  You pulled out a folding knife and held it in your hand pointing it towards the victim.  You repeated the request for money, and you stated that you would make the victim’s life hell if he didn’t give you some.  You also said that you knew where he lived.

10The victim attempted to calm you by saying that he did not want any trouble and asking you to leave him alone.  He got into his car and closed the door, with the driver-side window slightly open.  You moved the bicycle so you were at the side window and told him to, 'get the fuck out of the car and get me some money.'

11The victim was afraid that he would be stabbed so he started to reverse the vehicle.  You continued to yell to him to give you some money before stabbing the driver’s door window three times with the knife.  As the victim reversed you moved with the vehicle to stay level with his driver-side window.

12Around three hours later you wandered into a yard at Major Road in Fawkner and stole three battery-powered Christmas decorations and inflatable Santas.

13Charge three, the handling charge, relates to a black ‘Norco’ bicycle, a ‘Trek Domane’ bicycle and a ‘Cross City’ bicycle, all of which were stolen items located at the address where you resided.

14The attempted armed robbery offence and the theft offence were captured on CCTV footage.

Arrest and Interview

15On 3 January 2020 police executed a search warrant at your premises where they located the inflatable Santa Christmas decorations and the other battery-powered Christmas decorations stolen by you together with the items the subject of Charge three.

16You were interviewed and made full admissions to the theft of Christmas decorations and being present at the Commonwealth Bank ATM, but you denied making any demands for money or threats.  You stated that you were drunk and riding a bike in Fawkner when you saw the decorations.  You said you were not thinking because you were drunk.  You made admissions to confronting the victim once he was in his car at the ATM and tapping on the window with a knife but denied the attempted armed robbery.

Criminal record

17You come before the court with a lengthy criminal history.  You’ve been a persistent offender for over 20 years.  You have relevant prior convictions for offences of dishonesty and offences against the person.  You have previously received sentences of imprisonment as well as a number of Community Corrections Orders (‘CCO’), intensive corrections orders and suspended sentences.

18In August 2016, you were sentenced by His Honour Judge Grant in this court in relation to a charge of being a prohibited person possessing a firearm and a charge of causing injury recklessly, which related to the shooting of your victim, and one summary charge of unlicensed driving.  You were sentenced to an aggregate period of imprisonment of 15 months in combination with an 18-month Community Corrections Order.

19I was provided with Judge Grant’s reasons for sentence.

20In relation to that matter you pleaded guilty and were dealt with in the Koori Court.  You are a Yorta Yorta man through your father’s line.  A condition of the Community Corrections Order imposed by Judge Grant was that you attend and participate in the Wulgunggo Ngalu learning place program.

21It was noted in his sentencing remarks that you participated faithfully and genuinely in the sentencing conversation in the Koori Court.  Judge Grant noted that it was clear from your participation that you were sorry for what you had done and that you had insight into the problems in your life that you needed to address.

22Judge Grant also noted gaps in your criminal record for the following periods: October 1996 to early 1999; late 2005 to early 2009; July 2009 to mid-2012; and August 2013 to early 2016.

23These gaps gave Judge Grant some confidence, as they do me, that you are capable of pursuing a law-abiding and productive lifestyle in the community for extended periods.  To these periods can be added the period from your release on the Community Corrections Order on 5 December 2017 until the offending before me on 30 December 2019.

24I am satisfied that you have exhibited insight and some remorse for your offending in relation to this matter.  I was told that at the time of the offending you were completely intoxicated with a combination of alcohol, methamphetamine and gamma hydroxybutyrate (‘GHB’) in your system.  You had had an argument with your partner and you went out for a bike ride.  I accept that in your drug addled state you may have perceived that you were being followed by the complainant and you were not thinking clearly.  I emphasise that the objective facts, principally of course the CCTV footage and the account of the victim, do not provide a basis for your perception.  You are unable to offer any proper explanation for why the offending occurred.

25It is clear to me that the offending is yet another example in a long list of examples where your descent into alcohol and illicit substance abuse in the context of stresses in your life has precipitated or perhaps accentuated your tendency to commit offences of dishonesty and offences against the person.

26You have demonstrated good intentions to address your long-standing issues with drug and alcohol abuse.  No doubt these issues are not as simple as issues of addiction but are related to underlying causes and vulnerability that must be addressed by you if you are to rehabilitate.  

27In your case you were exposed to the negative effects of alcohol abuse and drug abuse in childhood.  Indeed, you were introduced to illicit substance abuse at a very young and vulnerable age, by those who were entrusted with your care.

28Both your parents suffered from drug and alcohol addiction and abuse.  As a child you were exposed to the violence and dysfunction that often goes hand in hand with such problems.  

29I was told that your father introduced you to intravenous amphetamine use by injecting you when you were 13 years of age.  The disadvantage and dysfunction in your childhood is set out more fully in the detailed submissions tendered on your behalf on the Plea (Exhibit 1) and the report of Dr Aaron Cunningham (Exhibit 3).

30Your history of disadvantage and hardship was also set out by Judge Grant at paragraphs [11] to [17] of his Reasons for Sentence. He stated:

Your Aboriginal heritage comes from your father, Steve Harrison.  He has struggled throughout his life with drug and alcohol abuse.  He has been imprisoned many times. He was in custody when you appeared before me on 18 July.

Your mother, who attended the hearing at the Koori Court on 18 July and again today, also struggled in the past with drug abuse and gambling problems.

You were raised in a family where both your parents were abusing drugs.  Your father was involved in criminal offending and spent periods of time in custody.  Your mother had gambling problems and there were times when you and your older brother took on the responsibility of looking after your younger brothers and sisters.  The relationship between your father and mother was described as volatile with incidents of family violence.

The family moved regularly and this effected the stability of your schooling; you are not well educated having left school during Year 10.

You also told Mr Simmons that you were introduced to cannabis by an uncle when you were 10 years old and introduced to amphetamines by your father when you were 13 years old.  By the age of 17 you were also drinking heavily.

This background discloses a life of hardship and disadvantage and your sentence should be moderated accordingly.

31As Judge Grant did, I also accept that your background enlivens the considerations often referred to as Bugmy factors[1].  These factors do not diminish over time, although considerations such as prospects of rehabilitation and protection of the community can often dampen their effect.

[1]Bugmy v The Queen (2013) 249 CLR 571.

32In your case, it is very clear that the offending before me is inextricably linked with not only intoxication and a history of illicit substance abuse, but a context of feelings of helplessness and despair which have their roots in the hardship and disadvantage you experienced in your developmental years.  Such hardship is all too often seen in the lives of Aboriginal people in our community. Sadly, as in your case, the effects of hardship and deprivation are often inter-generational and all-pervasive.  Your exposure to the negative aspects of such disadvantage was more global than lineal.

33I received a letter from your father, as well as a letter from your cousin Melanie Harrison, which, together with the other materials before me, have assisted me in gaining a picture of not only your childhood and the family dynamics as they related to you and your 14 siblings, but also to the struggles exhibited by your father and no doubt other relatives and forbears.  

34Your own personal disadvantage sits within the context of Aboriginal disadvantage generally in our society, which has its roots in dispossession, oppression, discrimination and the exigencies associated with failed colonial policies of segregation and assimilation.

35You have connected strongly with your cultural heritage, particularly in recent years.  You completed the Wulgunggo Ngalu program during your last CCO. You have expressed a desire to participate in the Dardi Munwurro Strong Spirit program.  I accept your connection to your culture and heritage and your desire to explore it more deeply, as genuine.

36I have taken into account the fact that you wished to have this matter dealt with within the Koori Court process.  It has not been possible for that to occur due to the COVID-19 pandemic.

37You have occupied yourself well whilst in custody.  I was provided with a number of favourable drug screen results; eight course certificates; and a prisoner education summary report which referred to a number of certificates of completion.

38The report of Dr Aaron Cunningham speaks of your genuine desire for change and your motivation to engage in rehabilitation, as well as your awareness of risk factors and triggers for relapse.  Dr Cunningham notes that you have numerous protective factors in the community and a motivating factor to reconnect with your children.  He notes that feelings of helplessness and depression you have experienced in the past have been associated with your loss of connection to your children.  He notes that you have insight into your struggles to cope and the stressors precipitating relapse into drug use.  I accept all of these matters.

39You have a reasonable work history.  You have been employed for extended periods over your life and I am satisfied that you are someone who is capable of obtaining and maintaining meaningful employment.  There is a prospect of you obtaining casual employment with Action Tours Pty Ltd upon release.

40Your plea of guilty is an early one and you are entitled to a discount in respect of your plea of guilty.  There is a significant utilitarian value attaching to pleas of guilty at this time.

41Your plea was made in the context of the COVID-19 pandemic and you fall to be sentenced by this Court at a time when the experience of prisoners in custody is generally more stressful due to the anxiety associated with the pandemic and the restrictions on visits and other programs.  In your particular case, your Aboriginality and the fact that you are an asthmatic who takes Ventolin medication on a daily basis provides a basis for greater concern for you within the prison community, if the virus were to spread within the prison system.

42Your experience in custody during this pandemic is more onerous than if you were experiencing it at another time.  You have no visits.  The lack of contact with family and supports adds to your anxiety concerning the welfare of your family and your own.

Objective seriousness.

43Detailed sentencing submissions filed on behalf of the Prosecution identify the significant sentencing factors that apply.  Appropriate concessions as to mitigation where it applies were made by the Prosecution.  In particular, denunciation, general deterrence, just punishment and specific deterrence are emphasised by the Prosecution.

44I accept that these are all factors which must take prominence in a sentence for the offence of attempted armed robbery in the context of your criminal history.

45Giving weight to all of these factors as I must and taking into account the matters in mitigation, I sentence you as follows.

46Charge 1:  Attempted armed robbery:  Nine months imprisonment in combination with a Community Corrections Order of two years duration.

47The conditions of the Community Corrections Order:

A.Supervision;

B.Drug Treatment and rehabilitation programs;

C.Alcohol treatment and rehabilitation programs;

D.100 hours community work, 50 hours of the treatment programs can be credited towards the community work hours; and

E.That you attend and complete the 16-week residential program being the Ngarra Jarranounith Men’s Family Violence and Behaviour Change Program at Dardi Munwurro once you are released from custody and when a place becomes available

48On Charge 2, you are to be imprisoned for three months to be served concurrently with the sentence on Charge 1.

49Charge 3: three months imprisonment to be served concurrently with the sentence on Charge 1.

50Relevant summary offence of committing an offence whilst on bail, seven days imprisonment to be severed concurrently.

51That makes a total effective sentence of nine months imprisonment with two-year Community Corrections Order to follow.

52I declare pursuant to s.18 of the Sentencing Act that you have served 229 days of pre-sentence detention.  Is that right Mr Barrese and Mr Harrison?

53OFFENDER:  Yes, that is correct sir.

54MR HARRISON:  Yes, Your Honour. 

55HIS HONOUR:  Thank you. 

56MR BARRESE:  Yes, Your Honour, that's correct.

57HIS HONOUR:  Thanks Mr Barrese. 

58Pursuant to s.6AAA , were it not for your plea of guilty, I would have sentenced you to a total effective sentence of three and a half years imprisonment with a non-parole period  of 18 months.

59I make the Disposal order that was sought.  In effect, Mr Barrese, I will just explain directly to your client as I must in relation to the community corrections order.  You consent to entering into a Community Corrections Order, Mr Harrison?

60OFFENDER:  Yes. 

61HIS HONOUR:  All right, the effect of that sentence is that you have received a total effective sentence of nine months' imprisonment with a two year community corrections order to follow.  There has been 229 days of that you have already served, so that leaves somewhere in the vicinity of 40 days I suspect, for the remainder of your sentence and then you will be released. 

62My expectation is that you will be released to the Dardi Munwurro program but if it is not available at that point in time, Corrections will liaise with them and you will go there at such time as there is a place available, although I certainly hope that given the letter - I should add there was a letter received by the Court yesterday I think it was, confirming a place today, but Mr Barrese, I assume that between Corrections and your office and Mr Harrison, that those at Dardi Munwurro would become aware of today's sentence and the condition.

63MR BARRESE:  Your Honour, Your Honour, my intention is to notify them forthwith once the matter is finalised. 

64HIS HONOUR:  Thank you Mr Barrese.  All right.

65MR BARRESE:  Thank Your Honour.

66HIS HONOUR:  All right, well that community corrections order will be signed by me and because of the facts that we are all remote at present, it will be conveyed to Mr Harrison for his signature, but he has indicated his consent to the order orally, so I accept that, for those purposes, the order takes effect, but he will be asked to sign it and he will of course have to be in touch with  Corrections upon his release.  Is there anything else that I need to cover. 

67MR HARRISON:  I do not believe so, Your Honour.

68MR BARRESE:  No, Your Honour, I think that completes the matter.

69HIS HONOUR:  All right, thank you everyone.  Good luck Mr Harrison.  All right, we will close the court. 

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