R v Harmer
[2004] VSC 371
•27 August 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1488 of 2003
| THE QUEEN |
| v |
| JULIE ELIZABETH HARMER |
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JUDGE: | COLDREY J | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 1 DECEMBER 2003; 5 APRIL; 11 JUNE; 19 AUGUST 2004 | |
DATE OF SENTENCE: | 27 AUGUST 2004 | |
CASE MAY BE CITED AS: | R v HARMER | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 371 | 1st Revision 30/9/04 |
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Sentence – Intentionally cause injury (three counts) – Assaults against Youth Residential Centre personnel – History of spontaneous violence – Youthful offender with borderline personality disorder – Need for specific and general deterrence and targetted rehabilitation – Subject to Integrated Community Management Plan on release – Total effective sentence of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Kay Robertson, Solicitor for Public Prosecutions |
| For the Accused | Ms J. Grubissa and Mr M. White | Grubissa White & Associates |
HIS HONOUR:
Julia Elizabeth Harmer, you have pleaded guilty to three counts of intentionally causing injury. Each of these assaults occurred at the Parkville Youth Residential Centre where you had been placed on 7 February 2003. Each of your victims was a staff member at the institution.
The first of these offences occurred on 8 February. It followed a conversation on the previous evening in which you had remarked to fellow inmates: "I want to know what it's like to stab someone and what it would feel like." .
At about 11 a.m. On 8 February you, and a number of inmates were in the kitchen of what is known as the Cullity Unit. Also present were two staff members, Patricia McDonald and Patrick Moffatt. Ms McDonald had earlier assisted you in obtaining clothes and toiletries and setting up your room. Whilst she was stirring soup, you requested a knife to make a salami sandwich and Ms McDonald handed you a knife from the bench. About 30 seconds later, when she had her back to you speaking to other residents, you raised the knife and stabbed her in the back in the area of the right shoulder. Ms McDonald felt like something heavy had fallen on her and she was forced forward against the stove. Later she felt intense pain as if her back was on fire. Meanwhile, Patrick Moffatt wrestled with you grabbing your wrist with both his hands as you attempted to push the knife towards him. He eventually twisted your wrist and you dropped the knife. You then remarked: "I'm sorry. I'm sorry, they told me to hurt you." Mr Moffatt initially stood on the knife before it was retrieved by one of the residents. The knife itself had a blade of 15 to 20 centimetres in length. The tip had been removed for safety reasons.
You were taken into the courtyard and appeared to be quite stunned. Ms McDonald collapsed and was ultimately conveyed by ambulance to the Royal Melbourne Hospital. A five millimetre abrasion to the skin surface was noted and she was given painkillers.
In her Victim Impact Statement, Ms McDonald described damage to the shoulder muscle causing considerable pain. She could not use her arm for several weeks as at October 2003, when the Victim Impact Statement was made. Ms McDonald continued to suffer stiffness in the shoulder, inhibiting repetitive tasks such as gardening, painting and sewing. She has also suffered depression requiring medication and the emotional aftermath of this incident has adversely affected her relationship with family members as well as creating workplace stresses. A transfer from Parkville has resulted in the lowering of her income.
After the event you were described by the supervisor of the Cullity Unit, James McCann, as extremely agitated. Your comments included: "I'm feeling really evil thoughts ... I really want to hurt someone ... I need to get out of here." you also stated that it had been in your mind since you woke up that you wanted to hurt someone. At some stage you also said to Mr McCann: "I want (or wanted to), kill that bitch".
On Monday 10 February, Ms Roxana Sherry, a nurse employed by the Adolescent Forensic Health Service attended the Parkville Centre to assess you and administer medication. This followed your actions that morning when you attempted to hit two psychiatrists and Mr Craig Layton, a child and family worker. Ms Sherry described you as talking on the telephone and sounding agitated and upset. Later she gave you a dose of your prescribed medication, chlorpromazine, which is a major tranquilliser. Ms Sherry then sat beside you on a couch explaining how to contact her if you became agitated and that she would speak to the resident psychiatrist about providing you with more medication. Without warning you punched her hard to the left side of her face with your right clenched fist. Ms Sherry was stunned but she was able to walk from the room and subsequently reported the matter to Centre authorities and the Carlton police.
As a result of your blow she received a large red mark to the side of her face. She also felt scared. Your actions engendered in her a concern for the safety of herself and other workers.
On 20 February, at about 4:20 p.m. Ms Wendy Dyson, a 46 year old youth worker, was organising a telephone call for you in the Communications Office of the Young Men's Unit. You had been isolated in that unit because of the previous incident. Ms Dyson asked you for your mother's phone number and you responded by stating that you were not coping. Ms Dyson replied that you had been coping really well. At this time the door of the Communications Office closed, temporarily separating Ms Dyson from her colleague, James McCann. You immediately grabbed hold of both her ears and twisted her head violently. Ms Dyson fell to the floor and you pushed her into a corner of the room. She managed to activate the duress alarm on her belt and Mr McCann attempted to open the door. In the meantime you kicked Wendy Dyson to the lower abdomen and, when she rolled into her left side to protect herself, you kicked her right side and right arm. At this point other staff came to Ms Dyson's assistance.
As a result of this assault, Wendy Dyson sustained injuries which included soft tissue damage to her neck, bruising to her right arm, bruising and soreness to her lower abdomen, swelling to her right elbow, and general body soreness. However, the results of your attack proved to be more serious, ultimately requiring surgery to a torn tendon in the right shoulder. This involved hospitalisation for four days, immobilisation of the right arm in a sling for many weeks and ongoing physiotherapy. As Ms Dyson makes clear in her Victim Impact Statement, the effects of your assault have not just been physical. She required counselling for post-traumatic stress, exemplified by such symptoms as anxiety, flashbacks, memory problems, poor motivation and a loss of self-confidence. Apart from the loss of five months' work, Ms Dyson has effectively been forced to change careers.
Assaults perpetrated on the staff of custodial institutions undertaking their lawful duties, must be regarded as serious offences. Each of your victims was a female and each of your attacks was unprovoked. Applying normal sentencing principles any sentence imposed should reflect not only specific deterrence, but the need to deter others from pursuing this type of conduct. However, in light of your mental history I am of the view there should be a sensible moderation of both general and specific deterrence.
In terms of sentencing principles you must be given credit for your pleas of guilty which were offered as soon as the original count of attempted murder against Ms McDonald was dropped and the current charges finalised.
You represent a very difficult sentencing problem and, in determining the appropriate sentence, these specific offences must be placed in a much broader context not only of other anti-social activities by you, but also in the context of your own psychiatric problems.
On 10 February, after the stabbing incident, you were assessed by clinical psychologists, Mark Salter and Siew Ling Lee. At one point, after your solicitor telephoned to inform you of the postponement of your court hearing for one day, you stated that you did not want to spend the night in the Youth Training Centre, stood up, and attempted to assault Ms Lee. You were restrained by other staff.
Prior to the assault on 20 February, to which you have pleaded guilty, you attempted to place a headlock on another welfare worker at the Parkville Centre, Craig Layton. He pushed you away and, being unharmed, did not wish to pursue the matter legally.
At the time of the assaults you were in custody for three offences of assault as well as assaulting a police officer in the lawful execution of his duty, damaging property and attempted robbery. You had been convicted at the Melbourne Magistrates' Court on 7 February 2003, having been taken into custody on 25 January, and you were serving a total effective sentence of 90 days. These offences occurred when you were residing at the Gatwick Hotel. According to your instructions to your counsel, the assaults were constituted by threatening conduct towards other patrons. There was also an attempt to rob another female residing at the hotel. The assault on police occurred when they attended to restrain you and take you from the premises.
Additionally, you were subsequently convicted at Melbourne Magistrates' Court in July and September 2003, firstly of criminal damage in June 2002, involving a window at the Footbridge Community Care Unit, and secondly, assault by punching the head of a psychiatric nurse from the Footbridge Unit who had attended at your mother's house to administer medication to you on 17 January 2003.
Subsequent to being charged with the current offences, you were transferred to the Thomas Embling Hospital but, according to your account to Dr Ruth Vine, a prominent and highly credentialled consultant psychiatrist, who examined you in November 2003, you were transferred from that venue to the Dame Phyllis Frost Centre after attempting to strangle an elderly Chinese lady - a fellow patient who was apparently annoying you. At Dame Phyllis Frost Centre you were placed in the Management Unit after verbally and physically aggressive behaviour towards both staff and prisoners. You returned to Thomas Embling Hospital in January 2004 but unfortunately further violent behaviour, including an assault on a member of the nursing staff, resulted in your discharge back to the Dame Phyllis Frost Centre.
On the surface, the overall pattern of behaviour revealed is one of violence perpetrated spontaneously, without warning or provocation and without concern for the consequences of the violence to the victim or to yourself. However, it is necessary to examine your history to gain an insight into the factors affecting your behaviour. In this regard the Court has been assisted by the report of Dr Vine, to which I have referred, as well as reports from Mark Salter, the Senior Clinical Psychologist at the Footbridge Unit and Sarah Niblock, a Psychologist with the Salvation Army Community Outreach Service. More recently there have been reports by psychiatrists, Dr Mark Ryan (26/2/04); Professor Paul Mullen (26/2/04); and Dr Ruth Vine (27/4/04 and 14/5/04).
It is clear that you have been assessed and treated by a range of professionals over a number of years. You are presently aged 21 having been born in Melbourne in January 1983. You have a younger brother and sister. You grew up in North Balwyn in what you described to Dr Vine as "a happy family". Your mother is a teacher and your father is a medical practitioner. Although your parents are now divorced, you continue to have the support of all family members. Your mother, grandmother and sister were present at your plea and your father has been visiting you during your time in custody.
You attended Greythorn Primary School and thereafter Balwyn High School for part of Year 9. You completed that year and part of Year 10 at Camberwell Girls' Grammar School. As your schooling progressed you found it difficult to manage and to make friends. Indeed, your parents were concerned from an early age about your ability to socialise and to learn, and you were initially assessed by clinical professionals at the Royal Children's Hospital. At about 13 or 14 you experienced a desire to kill someone and attacked one of your sister's friends with a baseball bat. By this stage you had also assaulted your mother. In the ensuing years you spent varying periods of time in what Dr Vine described as hospital or community residential clinical settings. These have included the Adolescent Unit at the Austin and Repatriation Medical Centre, the Inpatient Unit at St Vincent's Hospital, the Pathways Adolescent Centre at the Albert Road Clinic, as well as the Footbridge Community Care Unit and the Gatwick Hotel to which I have previously referred.
According to Dr Vine your delinquent conduct at the Gatwick Hotel was perpetrated in the context of endeavouring to return to hospital. In fact the psychologist Mark Salter expressed the opinion that your assaults on family members, Footbridge staff, and the public, were designed to achieve your admission to a psychiatric unit or to be "locked up" or to return to live with your mother. For example, the attempted assault on Ms Lee at the Parkville Centre was linked to a desire for a transfer to Deer Park.
After your eventual success in this regard you were visited on a number of occasions between August and November 2003, by Ms Sarah Niblock who noted the deterioration in your mental state and in your behaviour towards staff and property. You described visual hallucinations and expressed the fear that you would hurt someone. You also expressed the desire to die.
Both Mr Salter and Dr Vine diagnosed you as having a borderline personality disorder. You described to Dr Vine a desire to harm yourself and of burning yourself with cigarettes and inflicting minor lacerations during periods of escalating anxiety and tension. Dr Vine noted that at times you had also expressed a desire to kill others.
In the course of her first report, Dr Vine commented:
"Ms Harmer does describe some auditory and visual hallucinatory experiences, although it would appear that these have either been manifested in times of extreme emotion or in response to direct questioning. It is my opinion that these represent pseudo-hallucinations or hallucinations occurring in the context of brief psychotic episodes, consistent with an underlying personality disorder. Ms Harmer does display labile emotions, with predominant rage, particularly when she perceives rejection or abandonment, associated with thoughts of self-harm and both thoughts and actions of harm towards others typical of personality disorder. From the information available and at interviews, I have not been able to elicit symptoms suggestive of an ongoing process illness such as schizophrenia although it is likely that Ms Harmer does experience persecutory thought, at times of delusional intensity, again in the context of extreme emotions. This is consistent with a diagnosis of borderline personality disorder.
Ms Harmer does have some conception that her actions cause distress and harm to others and that they are likely to be followed by negative consequences such as criminal charges and incarceration. However, she appears to have little real insight into the nature of these, and, as yet, limited ability to predict or control such thoughts or impulses. In my opinion it is most important that Ms Harmer does continue to be encouraged to take responsibility for her actions and to be made aware of their effect on others, and to suffer the consequences of such actions.
However, Ms Harmer's combination of poor socialisation, difficulty in social interaction, emotional lability and risk of harm to herself and others makes management issues very problematic."
It is fair to say that the opinion of Dr Vine is generally shared by the other psychiatrists in their reports. I direct that all of these reports are to remain on the Court file.
As your counsel submitted during your initial plea, which occurred as long ago as December 2003, the Court is faced with fashioning a sentence which protects both the community and yourself from your anti-social conduct and which, given your age of 21, enhances any prospects of rehabilitation and reintegration into the community.
In order to achieve that end concerted efforts have been made by various mental health agencies to devise an appropriate management plan. These agencies have included the Salvation Army Community Outreach Services; Spectrum (The Personality Disorder Service of Victoria); and the Mental Health Branch of the Department of Human Services.
At a further plea hearing on 19 August 2004 the Court was assisted by a further psychiatric report dated 16 August 2004 and signed jointly by Dr Andrew Forrester (Consultant Psychiatrist, Victorian Institute of Forensic Mental Health) and Dame Phyllis Frost Centre; Dr Mark Ryan (Consultant Psychiatrist, Thomas Embling Hospital, Victorian Institute of Forensic Mental Health); Dr Danny Sullivan (Consultant Psychiatrist, Community Forensic Mental Health Service, Victorian Institute of Forensic Mental Health); and Associate Professor Amgad Tanaghow (Chief Psychiatrist of Victoria). Also submitted to the Court was an Integrated Community Management Plan, the result of an extensive consultative process and approved by a group of health professionals including the Chief Psychiatrist, Dr Danny Sullivan and a representative of Victoria Police. It is not necessary to set out this extremely detailed program. It is sufficient to say that it involves a transitional period of one month as an involuntary patient pursuant to s.12 of the Mental Health Act 1986 at Thomas Embling Hospital, followed by reintegration into the community under strict supervision. Medication and treatment will principally be under the control of Dr Sullivan. There are contingency plans capable of activation should there be any deterioration in your mental health. The proposed management plan was further supported by Dr Douglas Bell, (the Assistant Clinical Director (In Patient Operations), Victorian Institute of Forensic Mental Health), in a letter to the Court dated 19 August 2004.
At the final plea hearing evidence was given by Mr Robert Trett, a psychiatric nurse employed by Spectrum, that you have progressed significantly in controlling any violent urges during the past two to three months. You are presently on anti-anxiety as well as some anti-psychotic medication.
In my view it is not appropriate for this Court to impose sentences which have the effect of warehousing someone in your situation. I have concluded that the proposed rgime provides the best available option for achieving the goals of rehabilitation and reintegration into the community as well as community protection. It is also my understanding that the Crown does not oppose this mode of disposition.
Balancing as best I can the various sentencing principles enunciated in the Sentencing Act I have decided that the sentence to be imposed upon you should be as follows:
On Count 1 you are sentenced to be imprisoned for 12 months; on Counts 2 and 3 you are sentenced to six months' imprisonment; one and a half months of Counts 2 and 3 are to be cumulative with Count 1 and with each other, making a total effective sentence of 15 months. I do not fix any non-parole period.
Further, I declare that the period reckoned as already served under this sentence is 477 days inclusive of today's date. I direct that there be noted in the records of the Court the fact that this declaration was made and its details.
The result of this sentence, because you have already served 477 days, is that you are eligible for release from custody forthwith and consequently the transitional processes can commence. That can be explained to you by your counsel Mr White.
I am giving you the chance to get the treatment that the doctors think is appropriate for you and they want to help you.
PRISONER: Do I have to stand up?
HIS HONOUR: No, no, you just sit down. They want to help you get back into the community. You cooperate with them as they try and assist you.
PRISONER: I will make them proud.
HIS HONOUR: You make them proud, that would be good. You will make us all proud, because I do not want to see you back in court here. You do not want to be back here and you do not want to be in gaol, do you?
PRISONER: No, I don't, I hate it there.
HIS HONOUR: You have a lot of people who are trying to help you to make sure you do not end up back in gaol.
PRISONER: Thank you. Thank you, Your Worship.
HIS HONOUR: Mr White, you will explain the situation? I don't know how quite the logistics of this are going to work .
MR WHITE: I have spoken to the prison officers, they will take Ms Harmer back to the cells until the authorities from Thomas Embling arrive.
HIS HONOUR: The paperwork can be done then .
MR WHITE: Yes.
HIS HONOUR: That seems the best way to handle it. There is nothing else, is there?
MR GAMBLE: No, Your Honour.
HIS HONOUR: Very well, thank you.
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