R v J H

[2006] VSC 201

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1494 of 2005

THE QUEEN

v

JH

---

JUDGE:	HABERSBERGER J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2006
DATE OF SENTENCE:	31 May 2006
CASE MAY BE CITED AS:	R v JH
MEDIUM NEUTRAL CITATION:	[2006] VSC 201

---

Criminal law – Sentence – Murder – Guilty plea – Youthful offender – Remorse – Agreement to assist law enforcement authorities.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Gamble with Mr T. Walsh	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Accused	Mr G. Thomas SC	Victoria Legal Aid

HIS HONOUR:

1. JH, you have pleaded guilty before me to the murder of Greg Wayne Harrison at Dandenong on 13 May 2005.

1. The Crown's version of the events leading to Mr Harrison's death is not disputed by you, as it is largely based on your own statements to the police.  On the night in question you were drinking in a bar called Zeini's on the Princes Highway, Dandenong with a number of friends, celebrating the engagement of one of your group.  Two of your friends left the bar to obtain some take away food.

1. Mr Harrison and four of his associates, including his girlfriend and a female cousin, had been drinking at the Old Dandy Hotel.  They were walking home when they encountered your two friends at the intersection of Princes Highway and Robinson Street.  A verbal argument developed which became physical when Mr Harrison threw a punch at one of your friends which failed to connect.

1. After a short altercation your two friends escaped from the three men in the other group and they returned to the bar in an agitated state.  You and a number of your friends and others celebrating the engagement went in search of the other group.  Realising their predicament, Mr Harrison and his friends fled.  Some ran into a block of flats.  They were frightened and attempted to hide.  You and your friends continued searching the area with the aid of a motor vehicle.

1. You then located Mr Harrison hiding in the bushes in McFarlane Crescent.  You chased him into the front garden area of one of the flats at 6 McFarlane Crescent.  This area was surrounded by fences which prevented any further escape by Mr Harrison.  One of your group then punched Mr Harrison causing him to fall to the ground.  Thereafter, he was attacked whilst on the ground.  The group who participated in that attack numbered seven or eight, including yourself.  The attack was forceful, continuous and frenzied in nature.  There was kicking, stomping and punching to the head and body, as well as the use of an umbrella's metal tip.  The attack lasted for about five minutes.  Your group then fled the scene leaving an incapacitated Mr Harrison moaning on the ground.

1. After a loud and aggressive search of a nearby supermarket, you and one of your friends then left your group and returned to the scene of the earlier assault on Mr Harrison.  He had not moved during the intervening period of about ten minutes.  He was breathing heavily and moaning.  You and your companion then proceeded again to kick Mr Harrison several times.  Your companion struck Mr Harrison to the head with a plastic pot plant while you dropped a heavy terracotta pot plant on to his head.  As a result the terracotta pot was broken.  It weighed 10.4 kilograms when empty and between 13.8 and 21.5 kilograms with potting mix added.  Mr Harrison died at the scene from extensive head injuries.

1. This was a most brutal and cowardly attack by your group of at least seven young men on a defenceless individual.  What is worse from the sentencing point of view is that after the initial frenzied attack you and your companion returned to the scene and carried out the further fatal attack on an obviously seriously injured man.  Your counsel conceded that the circumstances of your offence were indeed serious.

1. I turn then to your personal circumstances.  At the time of the offence you were aged 18 years and two months, having been born on 8 March 1987.  You were the third youngest in the group of eight young men now facing charges over this incident.  Much of the following information has been obtained from a very helpful report prepared by Mr Patrick Newton, a forensic and counselling psychologist.  Mr Newton also gave evidence.

1. You have one sibling, a younger sister.  Your childhood was largely unremarkable.  It was happy until parental conflict in the family home became more common.  Your parents separated after an argument on your 17^th birthday.  I am told that you found your parents' separation intensely upsetting, particularly as you found yourself caught in the middle of competing parental pressures.  Your father found a new partner and your mother suffered serious health problems, which left you with little parental guidance in the latter part of 2004.

1. It appears that you utilised two key strategies to deal with your distress.  First, you commenced heavy alcohol consumption or "binge drinking" where your goal was to become as intoxicated as possible, as quickly as possible.  Secondly, you affiliated closely with a group of school friends with whom you formed a sense of belonging and acceptance as well as finding companionship.  Your bond with, and feelings of loyalty and friendship for, these friends was intense.  Regrettably, however, this relationship only exacerbated your drinking problem.  Mr Newton said that these responses reflected a significant level of immaturity.

1. Your performance at school deteriorated markedly after your parents' separation.  Whereas you had once been a good student you almost failed Year 11.  You left school at the end of Year 11 in an effort to support your mother and sister through work, but had some difficulty obtaining work.  You had worked as a casual labourer on various jobs before this incident.

1. Despite these problems it seems that you maintained your interest in sport.  In particular you were a valued member both on and off the field of the Silverton Cricket Club.  You represented that club in its first eleven in the Dandenong District Cricket Association, winning the club and the association's batting average in the 2004/2005 season.

1. More importantly, you have no prior convictions. Given this fact and your age, you therefore fall into the category of a “youthful first offender” and the law requires that I treat this as a primary consideration in exercising the sentencing discretion.  It is well established that “in the case of a youthful first offender rehabilitation is usually far more important than general deterrence” and that such an offender is not to be sent to an adult prison if that can be avoided.[1]  Nevertheless, it seems to me that I must retain a balance between rehabilitation and general deterrence and denunciation of the brutality of this murder.  The gravity of this crime is such, as was indeed recognised by your counsel, that there is no alternative other than adult prison.

   [1]R v Mills [1998] 4 VR 235 at 241 per Batt JA, with whom Phillips CJ and Charles JA agreed.

1. I accept Mr Newton's evidence that you are genuinely and deeply remorseful for your behaviour and that you have expressed "considerable empathy for the suffering [you have] caused the victim and the victim's family."  Your early actual remorse is, I consider, illustrated by the answer given to the police when you were being interviewed by them on 15 May 2005 after you had decided to tell them the truth about what you had done to Mr Harrison.  When asked by the police how you felt after you had dropped the terracotta pot on to the victim's head, you replied:

"I knew it was the worst thing I ever done in my life straight away."

Your only explanation was that you were "too intoxicated".  That remorse is also illustrated by your early co-operation with the police and your decision at the earliest practical opportunity to plead guilty.  I take all of this into account in your favour as an important factor in mitigation.

1. I also accept Mr Thomas’ submission that the night in question was not how you normally lived your life and that this offence was out of character.  Since your arrest you have undertaken several short courses available to you at the prison.  I have been told that you will be commencing a Bachelor of Business Studies by correspondence through Monash University in August of this year.  All of this speaks well for your future.  Your prospects of rehabilitation are also enhanced by your recent statement to Mr Newton when he saw you for a second time that you now recognised problems associated with your involvement with your group, that you had decided that your duty to society and to the victim's family was more important than your loyalty to the group, and that this had led to you providing a more detailed statement of the offence to the police.

1. I therefore find that your plea of guilty, which was entered at the earliest practical opportunity, evidences genuine remorse and prospects of rehabilitation.  It has saved the State a trial and the witnesses the trauma of having to relive the horrific events of this night.  It entitles you to “a high discount” or mitigation of the punishment that I would otherwise impose.[2]

   [2]R v Duncan [1998] 3 VR 208 at 215-215 per Callaway JA.

1. Further, you have acknowledged in the witness box that you are prepared to give evidence at the committals and/or trials of the others of your group in accordance with your most recent statement dated 21 March 2006.  You have also acknowledged that you understand that if you do not assist the law enforcement authorities as promised that you can be re-sentenced for this offence .  In accordance with authority I take into account in your favour as “an element of leniency” this willingness to give evidence at the future court proceedings.[3]  This assistance entitles you to a "substantial discount"[4] or a “very considerable” discount.[5]  I note, but do not accept, Mr Thomas' further submission that a more than substantial discount is warranted, given that without your evidence the prospect of any conviction of the other young person charged with murder is remote.  I do not understand the authorities to support that proposition.

   [3]R v Rostom [1996] 2 VR 97 at 103 per Charles JA, with whom Callaway JA and Vincent AJA agreed.

   [4]R v Evans and Tsagaris (2000) 112 A Crim R 234 at 239 per Brooking JA, with whom Charles and Batt JJA agreed.

   [5]R v Duncan [1998] 3 VR 208 at 215 per Callaway JA.

1. An unfortunate consequence of the circumstances of this offence and of your agreement to give evidence against the co-accused is that you have been detained in protective prison units to date and that this is likely to be the situation for the balance of your term of imprisonment.  Again, this suggests that some leniency should be shown, given the more than usual difficulty which the sentence will entail.[6]

   [6]R v Rostom [1996] 2 VR 97 at 101-102 per Charles JA, with whom Callaway JA and Vincent AJA agreed.

1. I do not accept that it is relevant to my present task that your mother has received threats which has forced her to move home on a number of occasions.  As Mr Thomas recognized, hardship to the offender's family is not normally to be taken into account.

1. I have read and taken into account the moving victim impact statements from bereaved relatives of Mr Harrison, including one from a female cousin who was present with Mr Harrison on the night of his murder.  It must have been a terrifying experience indeed for those unfortunate persons who were chased by you and your group of friends in such a totally uncontrolled manner.  As a result of your actions a 25 year old man has met a premature death, leaving two young girls without a father.  Not only has Mr Harrison's death caused great grief to his family and friends but the circumstances of his death have caused the local Aboriginal community to become very concerned about the safety of those who continue to live in the Dandenong area.

1. It is simply no excuse to say that you and your fellow attackers were extremely intoxicated on the night in question.  As I have already said, this was a brutal, callous and cowardly attack on Mr Harrison.  The sentence which I impose upon you must manifest the Court’s denunciation of your conduct and make adequate allowance for both general and special deterrence.

1. Nevertheless, bearing in mind that your prospects for rehabilitation are good, your remorse and early plea of guilty, your agreement to give evidence against your co-accused and the consequence that this will mean that you are likely to serve your entire term of imprisonment in protective custody, I have decided to fix a significantly shorter period of imprisonment and non-parole period than would otherwise be the case.  Given your youth it seems to me that you would benefit from an early release as possible even if this means a longer period of supervision whilst on parole.

1. JH, having regard to the above matters and to the purposes set out in s.5 of the Sentencing Act 1991, I sentence you to a term of 14 years' imprisonment for the murder of Greg Wayne Harrison. I fix a non-parole period of 9 years. I declare pursuant to s.18(4) of the Sentencing Act that you have already served a period of 383 days in custody and I direct that this declaration and its details be entered into the Court record.

1. Pursuant to s.464ZF(1) of the Crimes Act 1958 I order that the forensic sample and any related material and information obtained pursuant to the informed consent given by JH on 15 May 2005 be retained for placement on the database. I am satisfied that, in all the circumstances, the making of the order is justified having regard to the seriousness of the circumstances of the offending, the fact that the order is not opposed and the fact that the granting of the order is in the public interest.

1. Finally, pursuant to s.5(2AB) of the Sentencing Act I reiterate that the sentence I have imposed is less severe than it would otherwise have been because of the undertaking given by Mr JH to assist law enforcement authorities in the prosecution of his co-offenders and I direct that the fact that this undertaking was given and its details be entered into the Court record.

---