STATE OF TASMANIA v DAMIAN LESLIE HARPER 13 September 2023
COMMENTS ON PASSING SENTENCE JAGO J
Mr Harper, a jury found you guilty of the crimes of aggravated burglary, three counts of attempted murder and the crime of wounding. The determination of the factual basis of sentence is a matter for me. I may only make findings adverse to you if satisfied beyond reasonable doubt they have been proved and I may only make findings of fact in your favour if they are proved on the balance of probabilities.
The crimes were committed on 22 January 2019 when you went to the home of your estranged wife’s parents, where your estranged wife and the two children were living. You took with you a number of weapons, including a Stanley knife. After waiting for several hours, you entered the home and went directly to the bedroom where you knew your two sons would be sleeping. I am satisfied beyond reasonable doubt that when you entered the home you intended to murder your two sons and then take your own life, so as to punish your wife and inflict unbearable pain and anguish upon her. Fortunately, your plan was thwarted by the brave and desperate actions of the children’s mother and grandfather who managed to pull you away from the children, allowing their grandmother to take them safely from the room. When your wife intervened you turned your violence upon her, stabbing her in an attempt to kill her. When your father-in-law intervened you wounded him by striking him with a knife.
The background to your wicked crimes is as follows. You and your wife, whom I shall refer to as F in an endeavour to protect her privacy, met in 2011. There were two children born to the relationship, I shall refer to them as Z and N. Z had just turned 6 when the crimes occurred. N was 4. Initially the marriage was a happy one, but after a few years the relationship began to experience difficulties. Your behaviour became controlling and manipulative. You would constantly need to know where your wife was. If she was away from the home you would message her demanding to know when she would return. You became increasingly angry within the family home. In January 2018, your wife went away on a work trip. You accused her of being unfaithful during the trip. You became fixated on this issue of her infidelity. At one point you asked her to take a lie detector test. You took her phone from her and would turn up at her workplace unannounced. You became verbally aggressive and volatile. In May 2018, your wife moved out of the family home and relocated with the children to live with her parents. I will refer to her parents as Mr and Mrs T. Between May 2018 and January 2019, there were ongoing court proceedings in respect to the end of the marriage, including property proceedings and proceedings in respect to future care arrangements for the children. Those proceedings were scheduled for hearing in March 2019. In anticipation of that, in January 2019 you were required to attend a psychological appointment in Devonport, presumably for the preparation of some form of court report. It did not go well for you and you left the appointment.
January 22nd was your wedding anniversary. Late on the 21st January, you left your mother’s place near Hobart where you were living, and drove to the home of your parents in law. You probably arrived shortly before 1 am. You sat in your motor vehicle for several hours, no doubt ruminating about what you perceived to be as unfair treatment. You had with you a cricket bat, a multi-tool and two knives, being a Stanley knife and a kitchen knife, which you had brought with you from Hobart. At one point, you walked around the house to check if all the occupants were in bed. You were looking for points of entry. You waited until everyone had gone to bed and could gain access without being seen. It is likely you waited for nearly five hours. This is indicative, in my view, of your determination to carry out your plan. You gained access to the house via a small, partially opened kitchen window. You entered the house with the Stanley knife. You left the multi-tool, cricket bat and the large kitchen knife outside the window, where they were later found by police. You went immediately to the room where you knew your sons would be sleeping. You entered the room. Your sons were asleep in a bunk bed. N, your older son, was on the bottom bunk. You cut him to the neck with the Stanley knife. Where you cut him was close to the jugular vein. N woke up and screamed. He scampered to the end of his bed undoubtedly trying to distance himself from you. The noise woke up Z. He saw you leaning over N. You then reached up towards Z. You had the Stanley knife in your hand motioning it towards him. You told Z to come closer. Consistent with the jury verdict, your actions were directed at reaching him so you could kill him. The screams of N also attracted F’s attention. She entered the bedroom in time to see you leaning over N. She pulled you away from him. She then saw you reaching up for Z. She described you moving the hand in which you held the knife in a stabbing motion towards Z. She grabbed hold of you and again pulled you away. Z backed up into the corner of his bed. You then pushed F up against the wall and began stabbing her. You said to her, “I’m going to kill you, you fucking bitch”. You stabbed her to the hand and twice to the neck. She was trying to fend you off. F’s parents were also woken by the commotion. Both came into the room. Mrs T was able to coax N down from his bunk. She took him to another room before returning to get Z. Mr T grappled with you. He was able to restrain you, but in the process you wounded him. You cut him across his stomach with the knife. After several moments of pleading with you, you surrendered the Stanley knife to Mr T. You began to calm down but then suddenly grabbed the Stanley knife again and started cutting your own neck. You later told police you were trying to kill yourself. Mr T was able to wrestle the Stanley knife from you again and restrain you. By this time police had been called. When they arrived, Mr T was still restraining you. Police directed you to get onto the ground and you did so. You were taken into custody and have been in custody since that date.
The injury to N was six centimetres in length and was a full thickness laceration to the anterior left neck, lateral to the larynx and near to the carotid artery and the jugular vein. The medical evidence on the trial was that had either of those vessels been cut, death may well have occurred within a matter of minutes. Surgery was required to repair the injury. N also had a small injury on his thumb, most likely caused from the Stanley knife. F’s injuries were also serious. She had a cut between the webbing of her fingers in her right hand. She had a cut on top of her left shoulder, which was five centimetres in length and full thickness, and she had a significant wound to the left side of her neck. This wound was full thickness, 15-20 centimetres in length and went approximately halfway around her neck. This wound also came within close proximity to the jugular vein and the carotid artery. Surgery was required to repair the wounds. The wound to Mr T did not cause any significant injury. It was relatively superficial in nature and resolved without the need for medical intervention.
The blows you struck to your own neck resulted in linear lacerations to both the right and the left side of your neck. The left side laceration was a full thickness laceration of approximately 4 – 5 centimetres. It went through the skin but did not cut further into the tissues below the skin. The laceration on the right side of your neck was similar, although three centimetres in width. Both were sutured under local anaesthetic. Both resolved without the need for further treatment.
Following your arrest, you were interviewed by police. You made a number of telling statements to police during the interview. You told police that you had cut yourself in an attempt to kill yourself because you had “just tried to kill my fucking family”. You told police you were going to kill your boys and then kill yourself to “save them” from their mother. You told police the aim was to hurt your estranged wife because she had been “torturing” you.
I am satisfied beyond reasonable doubt, consistent with the jury’s verdict, that when you entered the home you intended to kill your two sons. I am also satisfied you intended to kill yourself. I am satisfied your aim was to hurt your wife and cause her anguish because of your distorted belief that she had wronged you. It was very apparent from a number of comments you made in the record of interview that you harboured considerable resentment towards your wife because of the breakdown of the relationship, and your inability to spend time with the children. You unjustifiably blamed her for your situation.
I have read and carefully considered the impact statement prepared by F. Whilst she and N have recovered physically from their injuries, the ongoing psychological and emotional trauma experienced by F, N and Z is immense. Both boys have experienced ongoing nightmares, are frequently scared and struggle to comprehend how someone who was supposed to love and protect them could want to kill them. They have issues trusting others and are often hyper vigilant. N is conscious of the scar on his neck. It is likely both N and Z will continue to experience difficulties in coping with the effects of this crime for many years to come. The full extent of the impact upon them may not manifest for many years.
F experiences ongoing nightmares, is constantly anxious and worried about her sons’ safety. She regularly rises throughout the night to check on them. She too is hyper vigilant and experiences feelings of panic. She struggles to comprehend how someone she once loved and trusted could behave in this manner. All three have needed specialist assistance to cope with the traumatic experience they endured. Sadly, Mr T passed away before this matter came on for trial. The thought of not being in a position to assist his family during the trial process made his last few weeks of life stressful and difficult. His bravery should be noted. But for his intervention the end outcome may well have been far worse. In summary, the impact statement eloquently describes the profound impact a crime of this nature has upon its victims and their family.
There are a number of aggravating factors associated with this crime. It was pre-meditated to the extent the defendant left Hobart with weapons, and at least at a point prior to entering the home, had a plan to kill his own children and himself so as to inflict pain upon his estranged wife. That is an act of the utmost cruelty. He waited for several hours outside the house. There was plenty of time to reconsider his actions. There were three victims whom the defendant tried to kill. A fourth victim was wounded. This is not a case where a single act resulted in harm to several victims. The defendant caused harm to each of his victims through separate acts. There was time to pause and reflect upon his behaviours. Even when others intervened he did not desist. Z and N were both very young. They were vulnerable and unable to defend themselves. I take into account, of course, that the physical injuries inflicted were not of the most grievous kind, and beyond scarring, have not resulted in residual physical impairment. But of course the harm caused extends beyond the physical injuries and indeed beyond the defendant’s immediate victims. The children’s grandmother was exposed to the trauma of the violence and had to intervene to help the children. That must have been a terrifying ordeal. The gross breach of trust involved in these crimes hardly needs to be stated. Attempting to kill your children and wife simply involves the worst possible breach of trust. These crimes were committed in a family violence context. Family violence is an insidious problem within our community and demands condemnation. The crimes occurred in the home where F and the children were living – a place where they were entitled to feel safe and loved. The defendant has shown no remorse for his behaviour. He has taken no responsibility for what happened. Indeed, throughout the record of interview with police he continually blamed his wife for what occurred. He is not entitled to the mitigatory benefit that would flow from a plea of guilty.
There has been considerable delay associated with this matter coming on for trial. That delay has been very difficult for F and the children. It has exacerbated their stress and anxiety. As far as the impact on sentencing however, I see the delay as a neutral factor. Much of the delay has been occasioned because the Court ordered reports into the defendant’s fitness to stand trial. I must proceed on the basis there was a legitimate reason for the ordering of such reports. The first report was ordered in October 2020. That report found the defendant was fit to stand trial. It seems, however, there was a subsequent deterioration in the defendant’s mental health and accordingly, a second report was ordered in September 2021. That report also found the defendant was fit to stand trial. The trial proceeded in February of this year. There has been a delay in the matter being sentenced as the Court ordered a pre-sentence psychiatric report. That report was authored by Dr Darjee. He concluded, among other things, the following:
- The defendant has a moderate to severe personality disorder. He does not suffer from any mental illness which compelled him to act.
- In terms of the specific features of his personality disorder, he has a fragile sense of self, which he compensates for with grandiose and idealised fantasies.
- He is self-absorbed and self-focused with little empathy for others.
- He sees suspicious behaviours in others.
- He has a fragmented and disturbed identity.
- His relationships are unstable due to his unrealistic idealisation and then denigration of the women he falls in love with, he decompensates and collapses when he is rejected or abandoned, in reality, or in his mind.
- He suffers from delusional jealousy. This is not a symptom of a mental illness but is a symptom of his personality disorder.
- The defendant remains preoccupied and fixated upon F and his two sons. If he were to be in the community soon, there would be an immediate risk of serious harm to the victims.
- His prospects for rehabilitation have to be considered as “somewhat guarded”. Given the likely cause and prognosis of his personality disorder and delusional disorder, there would be concerns about jealousy and associated behaviours in any future intimate relationship. He requires integrated psychiatric and psychological treatment in the long-term.
- He does not have a mental health condition which means prison will be more onerous for him than for others without his conditions. His condition is not likely to deteriorate in prison.
In Brown v The Queen [2020] VSCA 212 it was held that the considerations enunciated in R v Verdins [2007] VSCA 102 have application to personality disorders. It is necessary to consider then the extent to which the defendant’s personality disorder contributed to his offending behaviour and the extent to which this impairment should appropriately affect sentence. Based on Dr Darjee’s report I am satisfied that there is a causal link between the personality disorder and the commission of the crimes. In the report, Dr Darjee opines “Serious and sometimes homicidal violence such as perpetrated by Damien Harper, is not infrequently seen in individuals with his psycho pathology. The jealousy is underpinned by insecurity and possessiveness, which leads to intrusive, disruptive and controlling behaviour…… When the relationship breaks down, this confirms the betrayal but is also an acute and destabilising blow… the individual may fluctuate between…..attempting to salvage the idolised relationship which, in reality, they have destroyed, feeling desperate, hopeless and unable to exist, with suicidal ideation and vengeful and destructive thoughts, and fantasies and urges about harming or killing their love object. The combination of desperation, suicidal ideation, hopelessness, homicidal ideation and last resort thinking is particularly toxic and concerning and came together with Damien Harper to lead to the offences”.
I accept, therefore the defendant’s personality disorder contributed to the offending. The next question, of course, is whether there is any reduction of blame worthiness and, if so, to what extent. Here, there is no suggestion in the report that the defendant’s condition affected his ability to understand the likely consequences of his actions, appreciate the wrongfulness of the conduct, compelled his conduct or obscured his intent to commit the offences; but I accept his personality disorder was such that it impacted upon his moral decision making and impaired his judgement. It therefore reduces his moral culpability for the offending, but only in my view to a slight degree. It is not a situation where general or personal deterrence or denunciation should be moderated in the sentencing exercise to any significant degree. The seriousness of the criminal behaviour mandates they remain as weighty sentencing considerations. There is nothing to suggest the defendant’s personality disorder means a sentence of imprisonment will weigh more heavily upon him, or that imprisonment will have a significant adverse effect upon his condition, beyond the effect such a sentence would have upon a person not suffering with such a disorder. Accordingly, I am of the view that the personality disorder should only result in a modest reduction in sentence.
The defendant is 48 years of age. He has no relevant prior convictions. He has never known his biological father. He was raised by his mother and step-father. He was exposed to family violence within the home. He has a strong industrial history. After completing school, he worked in the concreting business for 20 years. He ceased that employment due to stressors associated with the breakdown of his first marriage. He has two children to that marriage. He has no relationship with the eldest of those children, but maintains regular phone contact with the younger of the children. After the end of his first marriage, the defendant worked with a labour hire company and eventually entered the print industry. His employment in that industry came to an end when difficulties developed in his marriage to F. As those difficulties in the marriage became more apparent, and the defendant was struggling to cope, he sought assistance from mental health professionals. At one point he was admitted to a mental health unit for about a week. His follow up with the Community Mental health team was limited.
There is no question these were appalling crimes, involving the gravest breach of trust. Mr Harper, you bore a responsibility to nurture, care and protect your children but instead you tried to kill them. You destroyed the most important bond of a parent/child relationship and ironically have deprived your sons of any meaningful relationship with one of their parents. You also breached the trust of your estranged wife. I do not overlook the harm you caused to Mr and Mrs T, who were forced to deal with the consequences of your behaviour. All of your victims have experienced terribly adverse consequences. There is very little to mitigate your conduct. You have shown no remorse. Any attempt to take the life of another person requires a sentence which reinforces the sanctity of life.
The only appropriate sentence is a long period of imprisonment. It is necessary to consider whether there should be allowance made for parole. The report of Dr Darjee clearly indicates community protection and protection of the defendant’s victims is a matter that requires careful consideration. Prospects for rehabilitation need to be approached with circumspection, but with appropriate psychological treatment, improvements in personal characteristics, and therefore minimisation of risk, remains a possibility. In my view, in time, it will be the Parole Board who is best positioned to make assessments as to community protection, the rehabilitation of the defendant and the need for ongoing supports. I have concluded that whilst the gravity of these crimes requires a longer parole ineligibility period, after the defendant has served the minimum period of actual imprisonment warranted for these crimes, he should have the opportunity to apply for parole.
Mr Harper, I make the following orders. You are convicted of all crimes of which you have been found guilty. I impose a single sentence. You are sentenced to 17 years’ imprisonment from 22 January 2019. You are not eligible to apply for parole until you have served 11 years of that sentence. I order that the crime of attempting to murder F be recorded on your criminal record as a family violence offence. Pursuant to s 36 Family Violence Act I make a Family Violence Order in favour of F in accordance with the terms of the interim Family Violence Order dated 23 January 2019. That order will continue until revoked by a court of competent jurisdiction.