R v Harrison
[2000] VSC 195
•12 May 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL JURISDICTION | Not Restricted |
No. 1536 of 1999
| THE QUEEN |
| v. |
| PETER JAMES HARRISON |
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JUDGE: | COLDREY, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 12 MAY 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 195 | |
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CATCHWORDS: Sentence – Pleas of guilty to abduction, rape and intentionally causing serious injury – Victim set alight by accused – Remorse – Weight given to victim's forgiveness compared with general deterrence – Sentenced to 9 years – Non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
For the Prosecution | S. Cooper | Office of Public Prosecutions |
| For the Accused | G. Thomas | Victoria Legal Aid |
HIS HONOUR:
Peter James Harrison you have pleaded guilty to abduction, rape, and intentionally causing serious injury to Martine Simone Kerr at Tarradale on 22 April 1999. It is necessary to briefly outline the circumstances surrounding the commission of these offences since they are relevant to the sentences which I must impose upon you.
About 10 years ago you commenced an affair with Martine Kerr, a married woman who you had met at a milk bar in Werribee. Shortly after the affair began, you left your wife of some 14 years, your daughter and step-children. You rented a flat in Footscray and Mrs. Kerr visited you there. At the beginning of 1992 Mrs. Kerr and her husband Garry moved to Tarradale, but both of them continued to work at Invicta Carpets in Braybrook and you and Mrs. Kerr continued to see each other. Just after the move to Tarradale, Gary Kerr learned of your affair and a fight ensued between the both of you. I shall later refer to that matter in more detail. Despite that incident your relationship with Mrs. Kerr continued over the ensuing years and you professed your love for each other. Mrs. Kerr would see you after work as she finished her shift earlier than her husband.
In 1997, Mrs. Kerr commenced to work at Victoria Carpets in Castlemaine, as did her husband. Despite the geographical separation the affair did not abate and Mrs. Kerr visited you in Melbourne at weekends when her husband was working.
In March 1999 Gary Kerr was diagnosed with bowel cancer and commenced treatment at Bendigo Hospital. Mrs. Kerr began to spend her weekends with him at the hospital and, consequently, could not devote that time to you. After Mr. Kerr left the hospital his wife would work during the day and care for him in the evenings. Even though Mrs. Kerr met you at Elphinstone about once a week, enroute to her work in Castlemaine, you became frustrated that you were no longer the centre of her attention. Those meetings did not involve sexual activity. This had last occurred shortly before Mr. Kerr's illness was diagnosed.
You phoned Mrs. Kerr frequently on her mobile phone to express your discontent about the amount of time she was spending with her husband. This made you very jealous and arguments ensued. About a week before 22 April 1999, Mrs. Kerr told you she wanted a break from you and that she needed to be with her ailing husband. You took this badly increasing the frequency of your phone calls in which you complained that Mrs. Kerr did not love you any more.
On 21 April you phoned Mrs. Kerr on 11 occasions and, when she finally spoke to you late that evening, you told her you wanted to see her. She recalls you sounded "upset and a bit desperate". Eventually, due to your persistence, Mrs. Kerr agreed to meet with you the next morning on the way to her work place.
On Thursday 22 April at 6.30 a.m. Mrs. Kerr commenced to drive to work. When she turned into Back Road, (a dirt road), she was confronted by your car parked at an angle and blocking her path. This was a surprise as the scheduled meeting place was at Elphinstone. It was still dark and the headlights of your vehicle were on. You approached Mrs. Kerr's vehicle, reached in the window and pulled the keys from the ignition. You threw the keys into an adjacent paddock. Mrs. Kerr observed that you were angry and you told her to get out of the car. In your right hand you were holding a Stay Sharp knife with a blade of about 21 centimetres in length. You opened the car door and pulled Mrs. Kerr out causing her gold necklace and locket (a present from her husband), to break. Mrs. Kerr told you that her necklace had broken but you said you didn't give a shit. It was later found on the roadway adjacent to her vehicle.
You pressed the knife into Mrs. Kerr's lower back, opened the boot of your car and told her to get in. When she declined to do so you pushed her in. By this stage Mrs. Kerr was terrified. You slammed the boot shut and drove for about 20 minutes to Turpins Falls. This was a remote area at which you had both spent time in the past. You opened the boot, yelled to Mrs. Kerr to get out, to take off all her clothes, and to sit in the back seat of the car. You were extremely angry and, although you were not at this stage brandishing the knife, Mrs. Kerr felt helpless. She sat on the driver's side back seat of the vehicle and removed her clothing (apart from her bra) as you had ordered. This was done under your gaze.
Apart from her runners she placed all of her clothes on the floor of the car behind the driver's seat. You told her to lie on her back which she did. You undid your trousers and pulled them down to your knees but otherwise remained clothed. You then lay on top of Mrs. Kerr and, having forced her legs apart, you vaginally raped her. You were not wearing a condom and you ejaculated. Mrs. Kerr described you as very angry at this time. All she said to you during this incident was "No".
While you were still lying on top of Mrs. Kerr you grabbed a BP petrol tin from the floor behind the front passenger seat. You had purchased this tin of petrol from the Sunshine BP service station at 4.15 that morning. You unscrewed the lid and, while straddling Mrs. Kerr you poured petrol over her body as she tried to protect her face with her hands. You ignored her calls for you to stop. In her statement Mrs. Kerr speaks of being terrified and thinking that she was going to die.
You then got off Mrs. Kerr and climbed out the driver's side back door. She quickly opened the passenger side back door and scrambled out. Meanwhile you had walked around the back of the car and, when you were about a metre from her you threw a lighted match towards her. The result was that Mrs. Kerr's body burst into flames. She experienced tremendous pain and was screaming out in agony. She fell to the ground beside your car and rolled in the dirt in an effort to put out the flames. Once she had managed to extinguish them, she displayed extraordinary presence of mind in obtaining her mobile phone from her handbag. You had apparently retrieved the handbag from her vehicle at the time of your interception of her. Although in an extremely distressed state, Mrs. Kerr managed to call an ambulance. That call was received at 6.58 a.m. Mrs. Kerr's recollection is that, as she called the ambulance, she observed you standing in the grass about three metres away naked from the waist down. You had also set yourself alight. At some stage you also spoke on the mobile phone to the communications officer of the North West Region Ambulance Service. He described you as calm, collected and rational. The ambulance did not arrive at Turpins Falls until 7.28 a.m. In the meantime the pain from Mrs. Kerr's burns was excruciating and she believed she was going to die. Both of you were transferred by air ambulance to the Alfred Hospital and admitted to the Intensive Care Unit.
Your own account of these events to interviewing police was of driving a willing passenger to Turpins Falls as a prelude to consensual sexual intercourse. You professed a lack of knowledge of how Mrs. Kerr was set alight. By your pleas of guilty you have acknowledged the falsity of this version.
The injuries sustained by Mrs. Kerr are described by Mr. Rodney Judson, a consultant surgeon in charge of the Victorian Adult Burns Unit at the Alfred Hospital. She had received burns to approximately 65% of her body. Some 50% of these burns were full thickness burns to the chest, abdomen, back, and thighs. Additionally there were partial thickness burns to the face, arms and hands. Excision and grafting was performed to the abdomen, thighs, back, breasts, inner aspects of the arms and the lumbar area. It was not until 5 July 1999 that Mrs. Kerr was discharged to a rehabilitation centre and she remains an outpatient at the Alfred Hospital.
During the period of her hospitalisation, Mrs. Kerr required major surgery to correct a life threatening condition, namely a septic clot in a major vein. Although she has made a good physical recovery from her illness, Mrs. Kerr is left with very extensive scarring over a significant part of her body. These scars will require life long care.
A psychological report from Ms. K. Middlemis indicates that, in the period since this incident, Mrs. Kerr has experienced anxiety and depression culminating in suicidal ideation. That depression is now under control but anxiety and sleep difficulties persist. There are, however, no symptoms of post-traumatic stress disorder. Ongoing counselling is recommended.
Mrs. Kerr's Victim Impact Statement refers to continuing problems with stretching her arms and legs, the taking of medication for depression, fear of travelling near the crime scene and fear of fire. She reports that the crime has also altered her relationship with her husband.
In order to try and understand your conduct on 22 April, it is necessary to view the relationship you had with Mrs. Kerr from your perspective. It was a relationship with a strong sexual component and you and Martine Kerr would see each other as often as possible. Initially this was after work, but after Mrs. Kerr moved to Tarradale, it was at weekends when she would stay at your unit. There is no doubt that Mrs. Kerr became the centre of your universe and your reason for living. Her son Sebastian Boulmaer, described you as being obsessed with his mother. A one-time friend, Ms. Janet Peart detailed your constant telephone conversations with Martine and said that you were blinded by your love for her. You would drive to Castlemaine two or three times a week just to spend about 10 minutes with her. Ms. Peart also described you as being obsessed by Martine and as hoping she would leave her husband for you. The same theme was taken up by a former colleague, Peter McNeill, who stated that you were a loner who focussed solely upon Martine. He, too, used the term "obsessed". At one stage you owned a Ford Falcon sedan which bore the personalised number plate Martine. The Magna sedan you were driving at the time of this incident had the name Martine in capitals on the front bumper bar whilst the rear window bore the caption called "Je T'aime Ma French Lady". A work colleague, Ms. Janice Ablington noted, in her statement, that you spoke continually about your girlfriend and your activities together. She believed that you loved Martine and desired permanency in your relationship.
In about 1996 you made a will in which your major asset, the benefit of a superannuation policy, was left to Mrs. Kerr.
There were, however, signs of your instability when the relationship was not proceeding as you wished. I will give two examples. On the evening of 26 September 1992 you drove your vehicle into an empty fish pond at the Kerr's Tarradale property. You waited until the couple returned home and commenced abusing Mrs. Kerr who you accused of destroying your life. When asked to leave by her husband you told him of your affair and commenced to punch him around the head. Two separate attacks were perpetrated upon Mr. Kerr and, when Mrs. Kerr sought to intervene you also struck her. The couple were both admitted to the Castlemaine Hospital. On that occasion you also smashed windows and a light fitting at the premises. As a result of this conduct you appeared before the Castlemaine Magistrates' Court in December 1992. You were convicted of recklessly causing serious injury (to Mr. Kerr); intentionally or recklessly causing injury (to Mrs. Kerr); being unlawfully on the premises and wilful damage. The Court released you on an intensive corrections order of nine months' duration and ordered you to pay compensation. This is your only prior conviction.
In December 1997 you took an overdose of tablets washed down with champagne and were admitted to the psychiatric section of the Western General Hospital. You wanted your friend Mr. McNeil to inform Mrs. Kerr of what you had done. He refused.
At some stage prior to travelling to Tarradale on 22 April, you got out the will in which Mrs. Kerr was the sole beneficiary. It was later found in your bedroom. This would tend to support your assertion that you did not initially intend any harm to Mrs. Kerr, but intended to take your own life. I am satisfied that what you planned was a grandiose gesture of suicide by self-immolation to demonstrate the intensity of your love for Mrs. Kerr. It was also designed to provoke in her profound guilt at what you regarded as her lack of commitment to you. That view is reflected in psychological reports prepared on your behalf by Mr. Ian Joblin, a forensic psychologist. In his report of September 1999 Mr. Joblin expressed his opinion as follows:
"There is no doubt that this man had a very strong positive emotional relationship with this woman and there is no doubt that when he felt the relationship was faltering, he could not cope. Indeed, he reported that he had built up an expectation that eventually they would live together but that expectation was violated by her lack of continued communication and in particular sexual behaviour. There is no doubt that he simply could not cope with that violation and sought to resolve it by a dramatically violent death in front of her in order to make her experience an emotion as intense as his. His intention was for her to experience profound guilt over what he was doing to himself and demonstrate to her by his self-immolation the extent of emotional isolation he experienced. Obviously he had hoped that she would experience a similar emotion or at least understand the extent of the problems he felt."
Whilst this may have been your initial plan, it deteriorated rapidly into violence. That violence commenced with the abduction at knife point, continued through the rape and culminated in the act of setting fire to Mrs. Kerr.
It was Mr. Joblin's view, expressed in evidence before this Court, that, at the time you committed these offences, you were in a very disturbed psychological state. Whilst you were not psychotic you had reached a state of confusion and disorientation and you were unable to assess the situation rationally. Mr. Joblin's report and evidence provides an explanation for your conduct. Your inability to assess the situation rationally, to which he referred, is, in my view, another way of describing your uncontrolled and extreme anger.
Even accepting that you were a loner, of barely average intelligence, who was psychologically devastated by what you believed was the imminent destruction of the relationship upon which your life centred, you were quite aware of what you were doing and that it was wrong. In some respects your actions on this morning were a dramatic extension of your earlier reactions to the frustration you felt at the nature and lack of progress of the affair you were conducting. Objectively they were selfish and immature.
Each of the offences committed by you are serious. The abduction was the necessary prelude to the later events. It involved the threat with the knife and the imprisonment in the car boot which was terrifying. The rape, whilst not accompanied by actual violence, was accomplished in frightening circumstances. The mere fact that you and your victim had had sex on numerous prior occasions does not, in my view, diminish its seriousness. Indeed, it may be argued that such conduct by a previously trusted lover is additionally traumatic. The intentional infliction of serious injury in the manner and with the consequences it entailed is, in the circumstances, the gravest of your offences.
Violent responses to the emotional problems of human relationships cannot be tolerated by the courts. The courts have a duty to deter those who may be minded to resort to such violence. Consequently general deterrence is an important element in any sentence to be imposed. Any psychological disturbance you may have been experiencing during the commission of these offences is not such as to reduce the significance of the element of general deterrence. That is not to say that the emotional turmoil which accompanied your actions is not a factor which may be taken into consideration in assessing the gravity of your conduct.
In considering the appropriate penalties, there are matters personal to you which I must take into account. You are 45 years old. Both your parents are deceased and you are the third eldest of seven children. You are currently receiving some support from your siblings which is a comfort to you.
You were raised in Broadmeadows and you completed your education at Broadmeadows West Technical School at Form 3 level. You left school at the age of 15 and commenced an apprenticeship as a glazier. You worked in this field for four or five years and then had jobs as a builder's labourer, a taxi driver and a truck driver. Thereafter, for 15 years you drove a delivery van for Home Pride Bakeries. Ultimately, you lost that job in March 1998 after you made an inappropriate sexual remark in the workplace. You then worked as a courier for Civic Transport using your own vehicle.
I have already mentioned your marriage. You have had no meaningful contact with your wife or children for at least 10 years. I accept Mr. Joblin's evidence that you do not generally have an aggressive or anti-social disposition.
The result of your activities on the morning of 22 April was that you also suffered horrific injuries. You were admitted to the Alfred Hospital with full thickness burns to 80% of your body. These were to your ears, fingers, the back of your hands and left chest. You had partial thickness burns to your face, the front of your neck, right chest, upper limbs, head and back. You also sustained inhalation burns. You remained at the Alfred Hospital until 25 August 1999 during which time you underwent extensive skin grafting. You also suffered complications including septicemia, deep vein thrombosis, and adrenal insufficiency.
After transferring to St. Vincent's Rehabilitation Unit you were diagnosed as suffering from depression and anxiety including suicidal ideation, and appropriate anti-depressant medication was prescribed. You also suffered from cellulitis in the right hip area.
Ultimately, on 17 October 1999, you were transferred to St. John's being the inpatient unit of St. Vincent's Correctional Health Service at Port Philip Prison. A report from Dr. Eugenie Tuck notes that your condition requires that you bathe, not shower, that you must apply cream to all scarred areas and that you wear a pressure suit and neck brace, as well as pressure gloves. It is convenient to quote part of her report:
"On review on 3 May 2000 Mr. Harrison was alert and was interacting well with co-prisoners and staff.
Having suffered 80% full thickness burns his body is extensively covered with severe burn scarring. All areas are sound except for the small area of scalp graft which is dry and crusted.
He has partial loss and deformity of his ears.
He has facial scarring particularly laterally.
Neck movement is restricted by burns scarring.
His anterior chest and abdomen are severely scarred.
Donor sights are present on Mr. Harrison's arms and back.
Mr. Harrison's left hand and fingers have been grafted with some contracture of the thickened webbed palmar scar. He has some limitation of finger flexion but hand function is reasonable.
Mr. Harrison's right hand has also been grafted. He has lost his right thumb … he has some finger flexion deformity and is awaiting operative procedures in an attempt to improve hand function.
Mr. Harrison has scarring of his legs and absence of his right great toe.
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I accept that your physical disabilities will greatly increase the difficulties of your incarceration. I also accept that the injuries you received and their aftermath, are themselves a form of punishment, (albeit they were self-inflicted).
You are entitled to a sentencing discount for your pleas of guilty. Although not made early, your ultimate pleas have meant that witnesses such as Mr. and Mrs. Kerr have been spared the embarrassment and trauma of having to give evidence before a jury. Moreover, your expressions of remorse, adverted to by your counsel and by Mr. Joblin are, in my view, genuine. You are entitled to credit for that remorse.
A remarkable aspect of this case is that you harbour the belief that you and Mrs. Kerr, whom you still love, will become reconciled and that your relationship will endure into the future. Although Mrs. Kerr's initial reaction to your conduct was such that she stated that she wished you were dead, it appears that in recent times, not only have you received written communications from her, but she has visited you in prison. It was submitted that the possibility of an ongoing relationship was relevant to your prospects of rehabilitation. This may be so but there are a number of factors impinging upon this possibility, not the least of which is the continued existence of the Kerr's marriage.
Insofar as Mrs. Kerr's current attitude may reflect forgiveness of you for your actions, little weight can be attributed to that factor compared to that of general deterrence. The reasons for this are set out in such cases as R. v. Glen (an unreported decision of the N.S.W. Court of Criminal Appeal, 19 December 1994) and R. v. Rowe (1996) 89 A.Crim.R. 467 at 472.
Further, despite your counsel's submission, it would not be appropriate that the sentences for these offences be totally concurrent. Whilst they may come from a common motivation and occurred on the same day, they were discrete offences each involving its own physical and mental trauma.
Apart from your guilty pleas and expressions of remorse, I also take into account your age, your previous history, which involves only one isolated episode of violence, and your record of constant employment. All of these factors point to reasonable prospects of rehabilitation. I also take into account your state of mental turmoil at the time the offences were committed, the physical legacy you bear from these offences and the hardship that you will encounter during your period in custody. All that being said, these were grave offences.
In fixing the individual sentences I have had regard to the overall effective sentence which I regard as being appropriate. Balancing as best I can the sentencing principles enunciated in the Sentencing Act, including punishment, specific and general deterrence, and rehabilitation, I conclude that the appropriate sentences are as follows. On count 1, being the abduction, you are sentenced to be imprisoned for 2 years; on count 2, rape, you are sentenced to be imprisoned for 5 years; and on count 3, intentionally causing serious injury, you are sentenced to be imprisoned for 7 years. I further order that 1 year of count 1 and 1 year of count 2 be served cumulatively with each other and cumulatively with the sentence imposed on count 3. This results in a total effective sentence of 9 years. I fix a non-parole period of 5 years. Further, I declare the period to be reckoned as already served under the sentence is 317 days, inclusive of today's date; and I direct that there be noted in the records of the Court the fact that this declaration is made and its details.
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