STATE OF TASMANIA v JACK BRADLEY HARVEY ESTCOURT J
COMMENTS ON PASSING SENTENCE 27 SEPTEMBER 2019
The defendant Jack Bradley Harvey, aged 21 has pleaded guilty to one count of robbery.
On 2 September 2018 at about 5.00pm the defendant walked around Woolworths Campbell Street supermarket with a shopping trolley, filling it up with items such as chocolates, lollies, underwear and socks. After about half an hour, the defendant pushed the trolley through the entry only gates, past the checkouts and towards the supermarket exit.
Joshua Barwick (the complainant) was working as a cashier at Woolworths on 2 September 2018 and was keeping observations on the defendant as he walked around the supermarket. Mr Barwick was standing near the service desk as the defendant pushed the trolley towards the exit. He yelled out to the defendant “you can’t do that ” and approached the accused, taking hold of the trolley. The defendant responded “I’ll do what I want, I don’t care“. Mr Barwick stood his ground and the defendant let go of the trolley and started throwing punches in his direction. The defendant threw about 20 punches, one of which struck Mr Barwick to the left cheek. Mr Barwick was able to deflect or defend the punches, however three hit him to the upper arm.
Mr Barwick told the defendant to leave and that he was calling the police. The defendant continued to throw punches at Mr Barwick, however they did not connect. He tried to kick Mr Barwick in the legs, but again those strikes missed. The defendant moved in the direction of the exit, before returning to Mr Barwick throwing more punches, which again did not connect. After a minute or so, the defendant walked out the front door, before returning and saying he would come back and get Mr Barwick, he was already on the run and he didn’t care. The defendant left the store again, before returning. Mr Barwick told him to leave. A customer also advised him to leave, which he finally did.
The total value of the items the defendant had collected in the trolley was $1,082.60. All of those items were recovered.
The defendant was ultimately arrested and on 4 September he was interviewed at the Hobart Police Station. He said that he stole the items because he did not have any money, and that he was under the influence of drugs at the time and is an aggressive person.
As a result of being assaulted by the defendant, the complainant suffered minor swelling to his left cheek and arm. The complainant did not make a victim Impact Statement.
The defendant was in custody in respect of this matter from 15 June 2018 until 9 August 2018 but 1 month of that was accounted for in respect of other matters. He was again in custody from 14 June 2019, and from 14 July 2019 until today he has been in custody in respect of this matter and I take that into account in setting the custodial period of the Drug Treatment Order which I propose to make.
I have had the benefit of a CMD Drug Treatment Order Assessment report. The defendant I acknowledge is still a young man and is entitled to be treated as such by the Court. Rehabilitation is a significant factor in sentencing. The defendant described to the CMD assessment officer a transient childhood whereby he moved around Tasmania in the care of his mother, up until the age of 8 years old. He reported at this time Child Protection Services intervened in his care, due to his mother’s inability to care for him, as she had financial issues and was opiate dependent. He reported that up until the age of 18 years he was subject to a Care and Protection Order and resided with a number of families in foster care. In between his admissions to the Ashley Youth Detention Centre (AYDC) – 12 admissions in total, he reported that he never stayed with families for long due to anger management issues and behavioural problems. The defendant reported his highest level of education is Grade 10. He reported he was able to obtain this qualification whilst being detained at Ashley. He reported that when he was at school (in the community) he was suspended on numerous occasions for being both verbally and physically abusive towards teachers and students. He reported he would behave in this manner when “they (other students and teachers) were getting to (him)”. He described his literacy as good, and stated no issues with his reading or writing. The defendant reported that he has had no previous employment, and attributed this to his lengthy involvement with Youth Justice and AYDC.
At interview, with the Court Diversion Officer the defendant disclosed that his grandfather recently passed away, which he recalled was a difficult time for him which led him to use illicit substances as a way to block out his negative thoughts and feelings. The defendant also reported that his mother’s mental health got significantly worse following the passing of her father. The defendant indicated his mother has attempted to commit suicide on several occasions. He identified one of his primary motivators at the moment is to be able to provide support to his mother.
The defendant nominated methamphetamine as his primary drug of choice. He first experimented with this substance at the age of 14 years. He reported initially he snorted the substance, but stated at present his preferred style of use is to smoke it. He reported initially he was using half a point every few days, but stated since the age of 18 years he has been smoking up to 2 points (.02 of a gram) a day. The defendant reported this use would cost him up to $200 per day.
He reported his second drug of choice is cannabis. He first experimented with this substance at the age of 12 years in the company of a family member, namely his grandfather. The defendant reported that he has been using cannabis routinely for the past 3 years, smoking a minimum of “a deal a day”. This would cost him $25 a day.
The defendant advised the assessor that he had previously used synthetic substances, but stated he does not enjoy this substance as it makes him feel sick. He reported he has also experimented with benzodiazepines and hallucinogens, but stated these substances are not drugs of choice for him. He advised the assessor that he does not consume alcohol, and stated alcohol is not and has never been problematic for him.
At interview the defendant reported that in the months leading up to the current offence, he was using approximately three points of methamphetamine per day, as well as benzodiazepines and cannabis to help him manage his “comedown” after each use.
The defendant recalled a recent and significant period of abstinence between December 2018, when he was released from custody, and June 2019. He has spent several periods of time participating in residential treatment programs, including Live Free Tassie in 2015 and Velocity Transformations in 2017.
This is a somewhat unusual case of robbery as the original taking of the property concerned was in the nature of a shop stealing offence and the violence that followed was upon the defendant being accosted by a store security officer after the taking, but before he exited the store.
For a young man the defendant has an unenviable record of prior convictions, including for drug offences, dishonesty and violent behaviour, including aggravated armed robbery and robbery. The present offence was committed while he was on bail and in breach of a condition of that bail that he not consume illicit drugs. That bail was granted only two weeks prior to this offence.
He is however at a turning point in his life. He has previously failed to complete a Drug Treatment Order, but he has nonetheless, and for good reason I am told, assessed as eligible and suitable for participation in the CMD Program again. I understand his failure to complete the program on the last occasion was not as a result of his fault.
The orders I make are these Mr Harvey :
You are convicted of the crime of robbery to which you have pleaded guilty.
In assessing the custodial component of the drug treatment order, I have taken into account the serious nature of robbery, as well as mitigating factors such as your early plea of guilty and you relatively young age. I have also taken into account the time you spent in custody in respect of this crime, which is now a little over three months. A custodial period of a drug treatment order cannot be backdated to take account of time already spent in custody, but I intend to impose a custodial period of twelve months imprisonment, which is half of the maximum available, but reflects the reality that had I sentenced you for this crime, I would have imposed a slightly higher sentence, with none suspended had you not already spent time in custody. When regard is had to the time that you have already actually spent in custody, I think that a further custodial period of twelve months is adequate in this case.
I am satisfied, on the balance of probabilities, that you have a demonstrated history of illicit drug use, and that illicit drug use contributed to the commission of the crime with which I am dealing. I consider that were I not making this order, I would have sentenced you to a term of imprisonment and would not have suspended that sentence, either wholly or in part. I have considered the contents of the Drug Treatment Order Assessment Report provided to me. I note that you are not subject to a parole order under the Corrections Act or another drug treatment order, and that no proceedings are pending against you in any court for a sexual offence or an offence involving the infliction of actual bodily harm. I am satisfied in all the circumstances that it is appropriate to make a drug treatment order. I am satisfied that the facilities likely to be used for the treatment and supervision part of the order are reasonably accessible to you, and that there are sufficient staff and resources to enable the treatment and supervision to be provided to you under this order.
I note that the order will be subject to you agreeing in writing to the making of the order and to complying with the treatment and supervision part of the order. So, the order will take effect when you have had actually signed the relevant document.
The orders are these:
1 You are sentenced to a drug treatment order, pursuant to s 27B of the Sentencing Act which provides that you will be sentenced to a custodial period of twelve months’ imprisonment.
2 However, you are not required to serve all or any part of that order unless ordered to by a court, and that will occur if you do not comply with the conditions of the order.
3 The conditions will be the usual core conditions which are:
(a) You must not, in Tasmania or elsewhere, commit another imprisonable offence.
(b) You must attend the Magistrates Court of Tasmania each to which the matter is adjourned by that court. Or otherwise as directed by that court.
(c) You must report to a court diversion officer at the office of Community Corrections in Launceston within two clear working days of the making of this order.
(d) You must undergo such treatment for your illicit drug use problem as is specified in this order or from time to time specified by the court.
(e) You must report to, and accept visits from, your case manager or court diversion officers.
(f) You must, unless there are special circumstances, give your case manager at least two clear workings days’ notice before any change of address.
(g) You must not leave Tasmania except with the permission, granted either generally or in a particular case, of the court.
(h) You must comply with all lawful directions of the court.
(i) You must comply with all reasonable directions of your case manager and court diversion officer concerning the core conditions and program conditions of this order.
The program conditions of the order will be as follows. They are essentially those that are set out in the report:
(j) You must not use any illicit substance or use or associate with anyone who uses any mood or mind altering substances, synthetic substances, or any unidentified substances.
(k) You must submit to random drug testing as directed by your case manager or court diversion officer.
(l) You must submit to urinalysis and oral fluid testing as directed by your case manager or court diversion officers.
(m) You must attend an appropriate clinician for a mental health assessment as directed by your case manager or court diversion officers.
(n) You must attend counselling and treatment for mental health as directed by your case manager or court diversion officers.
(o) You must attend educational and other programs as directed by your case manager or court diversion officers.
(p) You must participate in and successfully complete the EQUIPS addiction and/or aggression programs as directed by your case manager or court diversion officers.
(q) You must submit to a residential detoxification and/or rehabilitation program as directed by your case manager or court diversion officers.
(r) You must maintain a working mobile telephone for the purpose of supervision under the CMD program.
(s) You must remain contactable, including by way of that mobile telephone, at all times 24 hours a day.
(t) You must reside at 12 Heyson Court, Glenorchy, unless the court approves the change of that address.
(r) You must not be absent from these premises between the hours of 9pm and 6am and must present to an officer between those times, when required to do so, unless you have pre-approval from your court diversion officer.
(t) You must obey all the directions from your court diversion officer or any other case officer (this includes case management appointments, counselling, medical appointments or assessments, urinalysis and any other appointment or assessment as required).
(u) You must not use any prescription medication without approval from a General Practitioner or Court Diversion Officer and musty only take prescribed medication in accordance with directions
Mr Harvey, I hope you understand all this. You will be inducted into the order. All of the conditions of the order will be set out in the order, so you will have it. I am sure Mr Fisher will help you understand the conditions of the order. I hope you appreciate that this is a real opportunity for you to make a very positive change in your life. And if you can achieve that, I am sure you and other people that you are close to, such as your mother and your children, will be much happier for it. I wish you all the best. The Magistrates Court will now actually supervise this order.