DPP v Harrison [2017] VCC 1781 (28 November 2017)

Last Updated: 5 December 2017

IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-17-01425

CR-17-02088

CR-16-01800

DIRECTOR OF PUBLIC PROSECUTIONS
v
SHARDEY HARRISON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 November 2017
CASE MAY BE CITED AS:	DPP v Harrison
MEDIUM NEUTRAL CITATION:	[2017] VCC 1781

REASONS FOR SENTENCE

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Clancy	The Office of Public Prosecutions
For the Accused	Mr A. Pyne	Victoria Legal Aid

Pages 1 - 11

HIS HONOUR:

1. Shardey Harrison, you have pleaded guilty to one charge of aggravated burglary, one charge of theft, and one charge of criminal damage by fire. You also pleaded guilty to three uplifted summary matters of assault and one of committed an indictable offence whilst on bail.
2. You have also breached a community corrections order that was imposed on you by me, back in November of last year. On the charge of breach, you are convicted and discharged. That was a community corrections order for charge of recklessly cause injury.
3. Aggravated burglary carries 25 years, theft ten years, criminal damage by fire 15 years, all summary matters three months, and recklessly cause injury

   five years.

4. You are now 23 years of age, and were 22 years of age at the time of the offending. You are clearly still a young offender, and are on the material before me, an immature young woman. I accept that you have now expressed appropriate remorse for all this offending, and you must of course get the utilitarian benefit on it.
5. You have now been in custody for something like 149 days, and unfortunately, that is nowhere near sufficient for this offending. However that would appear to have given you a chance to think about your life and what you might want to do with it.
6. When you were interviewed by police, you made, ultimately, admissions, and I have taken all those matters very much into account. Your plea of guilty was early in the piece.
7. You do have a number of prior convictions, but on my reading of them, most of them are from when you were much younger, and nothing at the level to which you have now gravitated. A summary of the offending is Exhibit A.; if it was not, it is now, and I can summarise from that.
8. Perhaps firstly, in November 2016, you were placed on a community corrections order by me, in circumstances where you had stabbed a man, where you were in a very distressed, intoxicated condition, believing you were defending yourself to a certain extent, from your then boyfriend. So far as that is concerned, you did not attend at corrections for something in the order of six weeks; you virtually did nothing.
9. I am told from the Bar table and accept that you were in a state where your depression, had taken a hold of you around about December, and it is in that light that all this unfolds. I do not propose to go through your personal history at that point. I will do that in a few minutes.
10. But in any event, by 14 April 2017, you were using and were in serious emotional difficulty. You and a co-offender Daniel Mackenzie, who was only 17 years of age at the time, and his father, walked to Waratah Crescent in Portland. I note he was sentenced in the Children's Court, so parity plays no part; the father has yet to be dealt with.
11. Mackenzie was armed with a baseball bat and was wearing a black skull print mask over part of his face, and attempted to disguise his identity. You also were wearing a bandana, covering your nose and mouth area in an attempt to disguise your identity. You walked to the premises and Mr Ingman as I understand it, knocked on the front door, which was opened by a Joshua Smith.
12. He was asked if his brother Matthew was at home, and he said that he was not. Joshua Smith was there, saw Mackenzie in the front yard wearing the mask, and recognised him. When he tried to close the door, he was confronted by you and Mackenzie. Both he and his mother attempted to hold the door closed. The force of the pair of your pushing against it caused him to fall to the ground, and you then entered; that gives rise to the charge of aggravated burglary, being with a baseball bat.
13. The mother went to the lounge room where she used a mobile phone in an attempt to call police. You grabbed her and the phone, threw it away, then threw her on to the ground. You held her down by holding her around the neck with one hand, and used your other hand to cover her mouth.
14. Mackenzie was yelling out, "Get the money, get the money out of the safe". The mother attempted to get away from you, which caused you to scratch the right side of her face; that gives rise to a summary offence of unlawful assault.
15. Mackenzie was yelling at you to go find the safe, telling Joshua Smith, that

    "Not to worry, that you would find it". You then took $30 in cash from his wallet, some Woodstock Bourbon cans, three pool cues, and a packet of cigarettes; that gives rise to Charge 2 of theft.

16. For the purpose of this sentencing, there are no victim impact statements, and I accept for sentencing purposes, that this was done to endeavour to obtain drugs, or the proceeds of the sale of drugs. That is the milieu in which it all occurs.
17. In any event, police were ultimately called, not in relation to this as I understand it, and statements were made, and you are interviewed and initially, at least, denied it; that gives rise to aggravated burglary and theft.
18. As I have said, on 24 July 2017 after you had fallen further into emotional disarray, you attended at 120 Wellington Road in Portland, which was occupied by Mackenzie and a one Ricky Gerrard. It was owned by the Department of Health and Human Services. You and Mackenzie were drinking cask wine; an argument broke out between you, which may well have been over your daughter, and you assaulted Mackenzie by punching and hitting him in the head with a bong and a frying pan. He received no injuries; that is the charge of unlawful assault.
19. You also grabbed Gerrard by the throat, punched him in the head and body, he received no injuries; again, unlawful assault.
20. This is where it all became unfortunate. You then used a frying pan to smash numerous holes in the lounge room plaster wall. You lit a doona that was on the lounge room floor by using a cigarette lighter. Mackenzie and Harrison saw the fire and quickly extinguished it by stomping on it, before it took hold.
21. You went to a back bedroom and lit a mattress, walked into the main bedroom and set fire to a wardrobe that contained Mackenzie's clothes. That fire took Mackenzie into the main bedroom, who discovered it burning, but was unable to put it out. He and Gerrard evacuated the house.
22. You also set fire to a shopping bag full of clothes in the hallway, and you then fled; that gives rise to the serious charge of arson, and together with an unrelated summary offence of committing indictable offence whilst on bail.
23. Police were driving past and alerted the CFA who discovered the fire. The house received extensive damage, certainly in terms of thousands and thousands of dollars, and the fire brigade of course had to attend to put it out.
24. The arson chemist Mr Kelfeher, calculated three or four areas where the fire commenced, and I do not need to go through all that. His findings were in accordance with what you ultimately admitted to the police. You said later on that you had not used petrol, but you told the police that you had. I simply make no finding in respect of that. I do not see any point in entering into it.
25. When interviewed by police, you admitted to doing it, and said that you did it because they were talking about how good it was, being single. There are no victim impact statements in relation to that matter either.
26. The aggravated burglary and the arson both have to be regarded as serious; each calls for the application of general and specific deterrence, as well as denunciation, and appropriate punishment. The only sentence open in this matter of course, is a jail sentence of significant proportions.
27. Your counsel argued very ably on your behalf, and there are a number of factors that I take into account. The first is your youth; I am well aware of the matters outlined in the case of Azzopardi v R. You had an extremely unfortunate childhood and background; I am well aware of the matters outlined in

    Bugmy v R, which in my view and your situation, does reduce and probably always will reduce moral culpability if you offend again.

28. There is a limited application of Verdins, it is hard to see how this is not an overall problem with you, but I will give it some credence in terms of moral culpability.
29. One matter with you Ms Harrison that really concerns me, is the prospect of institutionalisation. You are doing quite well in goal, you are doing courses, you have got friends, you are being fed, you are not being assaulted, and the real risk particularly with young women in that situation, is that they do become institutionalised, because it is in one sense, bizarre as it seems, a much safer place than the outside world. So I am very concerned about aspects of totality.
30. You have a young daughter, who is in care and you will be unable to see during the term of this imprisonment. My understanding is that a preliminary nonunification plan has been put in place by DHS in any event. But I do take into account that you undergo the sentence, absent the potential at least of seeing your daughter, and to a large extent, absent your family.
31. Reports were tendered on your behalf, you have three from Carla Lechner, one which relates back to when I sentenced you last time. There was one from a Caroline Johnson from Centacare, and I take those into account.
32. In a situation such as this, where the matters are so serious, I do have go through background to a certain extent. I am well aware from those reports and from the previous time that I have dealt with you, that you find the question of your childhood and the like, a very distressing thing to talk about, and you appear to be not very forthcoming when discussing it with professionals.
33. However, I will simply say this. The reports of Dr Lechner and the letter from Ms Johnson I will direct, remain on file. So anybody who wishes to read them, and get the full detail of what has happened to you in your still short life, can do so.
34. I will be getting some information from them. Ms Johnson was involved with you in regard to your child; your child has been taken from you on a number of occasions. In April 2016, you were, as I have said, involved in a matter where you stabbed a person.
35. You had been in a relationship with one Alex, who apparently, had been of real assistance to you. When the matter came on before me, he was then still in a relationship with you, and things I had hoped, hopefully improved for you.
36. Ms Johnson points out that you were remaining anxious, and had real depression symptoms during November and end of December of last year when I sentenced you. She said you were relying more on Alex to assist with the care of the child, and that was having a negative impact on the relationship. She said that in January 2017, Alex left the relationship and cut off all contact with you and the child. The end of the relationship was discussed with Ms Johnson only in terms of Alex moving away, that you tell her later on, you did not know why he had gone.
37. You, at that stage were depressed and heading into real emotional turmoil. In late February, it appears that one Daniel Mackenzie who was much younger than you, appeared on the scene. He was someone that you had known for a long period of time. Ms Johnson said that by March, he had become a regular fixture in the house, and the relationship had obviously gone beyond friendship.
38. It is interesting to note that there had not been a visit to the home by DHS at that point in time, for almost six months. In any event, child protection arranged an appointment to see you, and it became clear that you were using substances, I have no doubt in relationship with Mr Mackenzie, and in March or around about that time, DHS became seriously involved.
39. You refused to comply with the directive, and in April 2017, in the context of drug and alcohol use, you, Mackenzie and on the material before me his father, committed the aggravated burglary and theft.
40. You were bailed, and you continued to be in a relationship with him, despite it being a condition of your bail, that you not do so.
41. It was in that consequence that in around May, you lost the care of the child. I accept on the material before me that you became suicidal and attempted certainly, on at least occasion. The circumstances were that you felt you were worthless, and I will go to that in a moment, and in the situation that I have described, you set fire effectively to the premises that Mackenzie was at.
42. The reports from Dr Lechner goes through your background to a certain extent, and I will do it in this brief form as I can. You are an Aboriginal woman, you are one of three children, and your parents separated when you were very young, apparently around about three. You have been removed on a number of occasions from the family. It is my understanding that your natural father was engaged in domestic violence; apparently, your mother has mental health issues, and your father had bipolar disorder.
43. You still have, you say, a good relationship with your mother and siblings, who indeed, are here today to support you. You became involved in a relationship with a Mr Hutchens, who is the father of your child. You clearly, on the information before me, suffer from multiple traumatic disorders from what occurred to you when you were young, and Mr Hutchens himself has been gaoled on a couple of occasions for physical violence to you.
44. It is clear from the reports that because of your lack of self-esteem and the like, that you end up in relationships or friendships, whatever you want to call them, with abusive men, and that only exacerbates the problems that you have.
45. You ended school in around about Year 9, and it is that period of time that you began using drugs, and associating with negative peers. You described to

    Ms Lechner a difficult home life, and you as a ten year old, having to have your mother admitted to psychiatric care.

46. You were sexually abused at around about the age of ten to twelve, and it would seem from what you describe later on, there is almost certainly a post-traumatic stress disorder involved in all that. In any event, as I have said, on Verdins it is of limited application, but those symptoms would seem to fit within that diagnosis.
47. You got back as I understand it, with Mr Harrison for a short period of time, and attempted to overdose and had to be taken to hospital, a stomach pump. I will quote this because it just seems to be the story of your life:

"I can't hold a single relationship. I failed school, I failed everything. I supress stuff, I take bongs to forget how shit my life is".

48. Ms Lechner says that you have high emotional dependency, and describes your relationship problems that I have just been through before. She says that your need for emotional nurturing, overrides your ability to make good decisions about yourself, or to think about potential consequences.
49. You said that after you were released from prison, when you did some time in regard to the aggravated burglary you said:

"I had no structure, and people were judging me. When Daniel got released, he sexually assaulted me. I feel very anxious because there's no structured days. I felt judged down the street, I didn't want to go down there. I felt the whole town was looking at me".

50. You said to Ms Lechner that you feel like a hopeless mother, and you see a bleak future for yourself, especially as you have lost housing, custody of your daughter, and are likely to remain goal.
51. You have severe depression and severe anxiety, and I take those matters into account. Obviously, someone with those conditions will have more difficulty in the goal situation, than somebody who has not. But they are certainly not uncommon symptoms for women in custody to experience. You describe the various anxiety symptoms that you have, numbness and tingling, cannot relax, fear the worst, feeling faint, and such things.
52. Ms Lechner describes that you grew up with:

"Symptoms of complex development trauma, arising from experiences of both abuse and neglect in her formative years. She has grown up feeling unsafe and distrust of others, has chronically low self-esteem, and high emotional dependency needs, hence the risk of being involved in destructive relationships, that reinforce her negative self-perception".

53. You have been given anti-depressants in custody. You have used, it is clear substances to try and block out feelings for a long period of time. As I have said, I am very much aware of the principles in Bugmy, backgrounds like that do not go away in five minutes. On the other hand, I have to as a judge, take into account matters of community protection and the objective seriousness of the offending.
54. Your prospects of rehabilitation should be good, if you can maintain the mental state that you have now. It is upon release, that the trouble is going to occur. If it does occur, the risk of you re-offending if these issues are not addressed, that is, the psychological and substance abuse, would have to be high. If they are addressed properly, you present to all people involved in this, as being sober, a personable and respectful young Aboriginal woman.
55. I take all those matters into account, and in the end, I have to take into account the concept of totality. In the decision of Toumngeun, the Court of Appeal said that it was recognised in the DPP v Leach:

"Is it particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in in a case where it seems to be the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which rebounds very much to the benefit of the community".

56. Is there such a situation; I cannot go anywhere near what can be described as mercy in the historical sense. But it seems to me that the earlier opportunity for parole might otherwise be the case that should be given, and I have moderated the sentences for what are both very serious crimes, let us be real, because of those matters. I am doing the best I can.
57. On Charge 1 of the indictment of aggravated burglary, four years. On

    Charge 2 of theft, three months; that is to be served concurrently. On Charge 3 of arson, two and a half years. On each of the summary charges, one month to each of them to be served concurrently.

58. You are convicted discharged on the breach of the community corrections order and that order is set aside. In lieu there of a sentence to be imprisoned for a period of three months, which is to be concurrent with other sentences imposed this day.
59. I direct that 1 year of the sentence imposed on Charge 3, that is the two and a half, be served cumulatively upon the sentence imposed on Charge 1, which gets a total effective sentence of five years. In these circumstances, because of your age and the matters I have referred to, you will serve a minimum term of two and a half years, before becoming eligible for parole, and I direct that 149 days be reckoned as having been served under this sentence.
60. Pursuant to s.6AAA from the Sentencing Act so that you realise the benefits of your plea of guilty, but for your plea of guilty, I would have sentenced you to be imprisoned for a period of seven and half years, with a minimum of five.
61. HIS HONOUR: Are there any other orders that I have to make?
62. MS CLANCY: No, Your Honour.
63. HIS HONOUR: Yes. You can take her out, thank you.
64. MR PYNE: Sorry, Your Honour. Is there a resentence on

    the

65. HIS HONOUR: I cannot hear you.
66. MR PYNE: Resentence on the recklessly causing injury matter?
67. HIS HONOUR: Yes, three months.
68. MR PYNE: Sorry, Your Honour. That is what I did not get.
69. HIS HONOUR: Concurrent. Yes, adjournment.

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