R v Harrison [2002] VSC 601

Supreme Court of Victoria|2002-12-13|Before: COLDREY J

SENTENCE - Recklessly cause serious injury - Plea of guilty - Offender struck victim a superficial blow during the course of an argument - Unbeknown to parties victim suffering from a berry aneurysm which ruptured - After apparent recovery the victim, who had been hospitalised, died from a re-bleeding of the aneurysm three weeks after incident - Unique situation more akin to simple assault with tragic and unforseen consequences - Remorse - Excellent prospects of rehabilitation - Carer of deceased's child - Sentence of one year to be served by way of intensive correction order in the community.

Shortly prior to 9 a.m. on 7 July 2001 the members of the Swan Hill Ambulance Service attended at 23 Mulbar Street, Swan Hill. This was your house and you had telephoned them. On their arrival you ran from the house. You were very agitated and shouting, "Quick, I think she is dead." Your partner was in the lounge room of the house lying unconscious on her side. She was cyanosed and breathing at considerable intervals. No obvious injuries were detected. Asked what had occurred, you said that you and Ms Mizzi had been arguing and she had struck you and you had reacted hitting her back. She had then fallen and started to fit.

At the Swan Hill District Hospital Ms Mizzi was examined by Dr Stewart Booth. The treatment administered to her included the application of a cervical neck collar, suction of oral nasal passageways, and the incubation of the trachea to assist respiration. A CT scan suggested the possibility of some subarachnoid bleeding. A deterioration of Ms Mizzi's condition at 11.30 a.m. led the doctor to diagnose a subarachnoid haemorrhage and formed the view that Ms Mizzi exhibited the signs of significant brain injury. Consequently, her transport to the Alfred Hospital Intensive Care Unit was arranged.

Prior to this occurring, Dr Booth permitted you to spend some time with Ms Mizzi. He described you as being quite devastated at her condition. You continued to visit Ms Mizzi throughout her subsequent sojourn in The Alfred Hospital. Upon examination at that hospital's Intensive Care Unit Ms Mizzi who was then in a coma was found to have a serious brain injury and evidence of subarachnoid haemorrhage and intracranial hypertension. Her treatment included mechanical ventilation, ventricular drainage and management of the intracranial hypertension.

On the evening of 7 July an angiogram was performed by Professor Kenneth Thomson, a specialist radiologist at the hospital, in order to investigate the subarachnoid haemorrhage. An abnormality was observed at the origin of the right posterior and inferior cerebellar artery know as the PICA where it branches off the top end of the vertebral artery. This was interpreted as being due to spasm, being the irregular narrowing of an artery and it was highly suggestive of the presence of an aneurysm at this site.

Professor Thomson told the court what is known as a berry aneurysm is an outpouching from a normal blood vessel. It often has a neck, and a little sack although a neck is not always present. Professor Thompson said the area was weaker than the normal artery was, and drew the analogy of a weakened bicycle tyre tube. It was more susceptible to tearing or rupturing than a normal artery wall.

On 16 July, another radiologist, Dr Anoop Madan, conducted a further angiogram which, whilst removing some minimal irregularity of the site, did not disclose any aneurysm. Dr Madan indicated that the reasons for this could include the spasming of the artery itself, with the formation of a thrombus, or blood clot, within the aneurism, which precluded the necessary radiographic contrast. Since only minimal irregularity was noted at the site, and Ms Mizzi was steadily improving - for example, she began to open her eyes spontaneously, was obeying commands, and was recognising people - she was transferred to the neuro-surgical ward, under the care of Mr Paul D'urso, a neurosurgeon. It appears that, during the ensuing days, Ms Mizzi was also able to move her arms and legs. However, at some time after 4 p.m. on

22 July, Ms Mizzi suddenly lapsed into a coma. A CT scan revealed a further large subarachnoid haemorrhage. On 23 July, a third angiogram was conducted by Dr Madan, and a bleeding 2mm berry aneurysm was discovered in the same area of the PICA that had originally been examined. I have already adverted to the reasons why it may not have been initially observed.

Possible causes of a re-bleeding of the aneurysm could have been trauma occasioned by the patient thrashing about in bed, or elevated blood pressure. However, Mr D'urso believed that the instant cause was the clot occluding, or the aneurysm dissolving or becoming free, rather than the bleeding emanating from another tear in it.

On this occasion, an endeavour to stop any further bleeding was made by introducing platinum coils into the aneurysm. Only one such coil was successfully deployed. Despite treatment designed to reduce the intra-cranial pressure produced by the subarachnoid haemorrhage, Ms Mizzi sustained severe brain damage, and on 28 July, following discussions with her family and yourself, the life support system to which she was then connected was turned off.

I am quite satisfied on the medical evidence that the original subarachnoid haemorrhage was caused by the rupturing of a berry aneurysm, and the second subarachnoid haemorrhage was caused by a further bleeding of that aneurysm. The medical situation was simply encapsulated by Mr Durso, in his statement: "In summary, this patient sustained a subarachnoid haemorrhage from a PICA aneurysm. She made [an] initial recovery from the original haemorrhage. However, a second haemorrhage, from the aneurysm occurred on 22 July. The aneurysm was treated with neuro-vascular embolisation, however, the severity of the patient's condition was such that, despite medical intervention, she died." Mr D'urso said that persons who survive a ruptured berry aneurysm and a subarachnoid haemorrhage can go on to lead relatively normal lives. However, an unfixed, that is, untreated, aneurysm usually causes death.

I have canvassed medical evidence in some detail, because it is important to note that, prior to the incident on 7 July, no one realised that Ms Mizzi had the congenital defect of a berry aneurysm. Moreover, it was difficult for the medical authorities to detect the aneurysm, and, in fact, it was not positively detected by them prior to the second bleed on 22 July.

A fuller account of the incident preceding the collapse of Ms Mizzi was given by you to local police on 7 July, and to the Homicide Squad on 10 July. This was at a time when Ms Mizzi was seriously ill but may have recovered. Both versions are consistent. In my view you gave the police a frank account of what occurred on the morning of 7 July. Indeed you co-operated with the police throughout their investigation.

In summary, at about 8.45 p.m. on 7 July you and Ms Mizzi commenced to argue about the amount of marijuana being used by each of you, and its effect on the family finances. Ironically at this time you were seated on a couch in the lounge room mixing marijuana and tobacco in a bowl. You advanced the view that the marijuana was going too quickly, and further that you needed to curtail the use of it. Ms Mizzi, who had been in the kitchen preparing a bottle for your three month old daughter, Latisha, entered the lounge room, confronted you, putting the proposition that given your consumption of marijuana you were equally to blame for the situation. She stood in front of you and struck your face, and flicked you across the head with an open hand several times. You stood up and pushed her away.

In the 7 July interview you described both of you as being "hot headed at the time". Ms Mizzi returned to the kitchen to finish preparing the baby's bottle. The argument continued through a servery between the kitchen and the lounge room. On re-entering the lounge room Ms Mizzi slammed the baby bottle onto a coffee table, slapping and punching you around the head. You stood up and a wrestle commenced as you endeavoured to push Ms Mizzi away. Another punch was thrown by her which did not connect, and you then retaliated, punching Ms Mizzi once to the left side of the head.

The result of this blow was that her legs immediately buckled from under her, and she fell backwards. Her head possibly brushed the side of a wooden clothes horse before contacting the carpeted floor. You described her as then convulsing, and when she remained unconscious you immediately rang for an ambulance. Under the direction of the operator you turned Ms Mizzi onto her side.

You told the police the blow you struck was not a hard one. This is confirmed by the various medical examinations both before and after Ms Mizzi's death, which detected no bruising or other injuries to her. Dr Michael Burke, the pathologist who conducted the post mortem examination, indicated that a berry aneurysm can rupture spontaneously or through an elevation in blood pressure, which itself may occur as a result of the infliction of trauma. In this case it was the doctor's opinion that the striking of Ms Mizzi, even though to the left side of the head, caused an increase in her blood pressure which in turn caused the aneurysm to rupture.

In these circumstances a plea of guilty to recklessly causing serious injury was accepted by the Crown. That offence involves a foresight of the probability of serious injury preceding the performance of the act occasioning it. Here the probable serious injury said to have been foreseen was a loss of consciousness.

As I indicated to counsel in the course of your plea, there was a degree of artificiality in this formulation. Indeed the Crown, through Mr Silbert of counsel, conceded that the case had all the hallmarks of a common assault with tragic and unintended consequences. A warrant for this characterisation may be found in the judgment of the majority of the High Court in Wilson & R[1992] HCA 31; , 1992, 174 C.L.R. 313 at pp.332-334.

To make this observation is not to trivialise what occurred, but serves to place it in context. Clearly assaults of this nature attract the sanction of the criminal law, and any penalty imposed must include the elements of punishment, specific and general deterrence, as well as rehabilitation. That being said the facts surrounding the commission of this offence make it a very unusual one. Additionally there are matters personal to you which are relevant in considering the appropriate sentence to impose.

You are 34 years old. You were born in Brisbane in September 1968, but in 1970 your family moved to the Mornington Peninsula. You were the third eldest of six children. Two of those children died in a car accident when you were six years old. According to your father, Alan Harrison Senior, the whole family was badly affected by this tragedy.

Your parents separated in 1981 when you were 12 or 13. Initially you lived with your mother, but after an incident where you broke into a pinball machine your mother effectively consented to your being made a ward of state. After about six months at Baltara you were retrieved by your father and subsequently lived with him and his new wife, Ms Fran Rubin.

You were educated at Mornington and Mount Martha Primary Schools and completed your education to Year 9 Level at Baxter Technical School. After leaving school at 15 you were engaged as an apprentice jockey at stables in Mordialloc. Although you did not complete that apprenticeship you remained with the stables, working as a strapper. Overall, you worked there for about 10 years. Labouring jobs, plastering, concreting and bricklaying occupied the next two or three years of life before you spent five years as a fisherman on a prawn trawler out of Cairns. During that time you were the victim of a vicious stabbing by a drunken workmate wielding a broken bottle.

A report from the Community Corrections Service pursuant to s.96 of the Sentencing Act 1991 contains a more detailed but generally consistent personal history. In 1992 and 1998 you acquired Magistrate Court convictions, essentially, for offences of dishonesty and driving infringements. They have no real significance in the context of this offence. On returning to Melbourne you worked with an uncle selling memorabilia, mainly historical prints. This occupation continued until 1999 when you met Rebecca Mizzi in Swan Hill. You were then aged about 29 and Ms Mizzi was aged 20. You told your father that you had found your soul mate. Ms Mizzi already had a young child, Brodie, who was then about two years old and with whom you interacted very well. Your father described you as completely in love with Rebecca.

The family went to live in Queensland in late 1999 where you worked as a handyman. After Ms Mizzi's mother, Mrs Odette McQueen, became seriously ill with a kidney disease you returned to Swan Hill so Rebecca could be close to her. There you obtained seasonal work on a farm as a potato picker. Rebecca's mother died in March 2001, and a child of your union, Letitia, was born in April of that year. After the death of Rebecca Mizzi you lived for a time at the house of your mother, Dianne Brown, with Brodie and Latisha. Later, you and Brodie moved to a separate residence. Given your current uncertain situation, Latisha's age and the time your mother had spent looking after her, you consented to her continuing to do so for the time being. Some eight months ago your mother moved to Queensland and you last saw Latisha about four weeks ago when your mother brought her to Melbourne on a visit. I accept that it is your desire to eventually reunite the family.

You gave evidence during the plea in which you told of your love for Ms Mizzi and the plans that you both had to marry at the end of 2001. Further evidence of the loving nature of the relationship was, as I have already indicated, given by your father, and additionally by Rebecca's younger sister, Patricia McQueen. Ms McQueen, who was a student, lived with you and Ms Mizzi for several months after the death of her mother in March 2001. Ms Pauline Scala, a child protection supervisor with The Department of Human Services, who had arranged this placement told the court of her contact with you and Ms Mizzi, and how she had been impressed with you and with your concern for Ms McQueen's welfare.

Ms Lynne Bugeja, employed in 2001 as a medical social worker with The Swan Hill Hospital, became involved with you and Ms Mizzi while providing support for the family during Odette McQueen's fatal illness and its aftermath. Ms Bugeja told the court of Ms Mizzi's professed adoration of you and favourably contrasted your attitude towards her with the extreme violence she had experienced in two prior relationships.

I accept that your relationship with Rebecca was one of love and commitment, although there were regular verbal arguments. Melissa McQueen, another sister, described you as both having fiery tempers and arguments between you developing into screaming matches. It appears that on two prior occasions, one in Queensland and the other in about May 2001, these arguments did degenerate into physical violence. Apart from your relationship with Ms Mizzi, witnesses spoke in glowing terms of your loving and caring interaction both with Brodie and Letitia. Ms Bugeja commented on the time you spent reading, drawing, and playing football with Brodie and your warm and loving response to Latisha who you would constantly cuddle. Patricia McQueen made the point that you treat Brodie as your son and he calls you dad, and that your reaction to the birth of Latisha was like you had won the lottery. Another professional perspective was provided by the witness, Miss Jenny Batten, the leader of a child protection team with The Department of Human Services, who was impressed by your devotion in looking after your children.

All of these witnesses, both lay and professional, were of the view that in the short term you were the appropriate parent for Brodie and they were also supportive of your wish to re-establish the family unit in the long term. You are currently residing with Brodie in a Ministry of Housing house in Frankston. You are in receipt of a sole parent's pension. You are directing your energy to looking after Brodie who is extremely dependent upon you. Indeed, in a report from The Department of Human Services, dated 20 November 2002, Ms Tammy Petersen, the current protective worker assigned to your case, noted:

"Mr Harrison has a strong bond with Brodie and Brodie is attached to his stepfather. Mr Harrison shows appropriate discipline and affection towards Brodie. Mr Harrison has had limited contact with Latisha. However, reports indicate that access has been positive. Mr Harrison appears to be committed into meeting the needs of his children and puts their needs first."

A report, of the same date, from the principal of Karingal Heights Primary School, which Brodie attends, states, among other things, "Brodie is a happy and healthy child. Brodie attends school well-dressed and brings appropriate lunches. Brodie regularly returns his home reader and homework signed and completed. Alan Harrison communicates on a regular basis with the classroom teacher. He also attended formal parent-teacher interviews."

Ms Batten told the court that if you remain at liberty, the Department of Human Services would continue to support Brodie being in a permanent place with you, and also a reunification plan for Latisha, based on the outcome of a parenting assessment.

In a joint victim impact statement, Ms Mizzi's sisters, Melissa and Patricia McQueen, refer to her as a wonderful lady, and talk of the emotional trauma her death has caused them. They go on to state that, "Even though we have lost our sister, we do not hold a grudge on Alan, as we will always love him as a brother." Both sisters visit you, and Brodie, at your Frankston address.

There is abundant evidence from the witnesses to whom I have referred, of the devastating effect this event has had upon you, and of your remorse for it. In the 10 July interview, you were asked, "And how are you feeling about all this now?" You replied, "Terrible. I really wish it was me. Mate, I love the girl so much. It's the best thing what's ever happened to me in my whole life." You confirmed those sentiments on oath, and I have no doubt whatever about the genuineness of your remorse.

Subsequently, you experienced the trauma of having to face the issue of the discontinuance of Ms Mizzi's life support system. A report from Miss Tracey Martin, a counsellor with Peninsula Health, an organisation that you attended between August and December 2001, contains the observation, "Mr Harrison openly discussed in counselling the events which are the subject of the current hearing. The writer observed that Mr Harrison may have been displaying some symptoms of post-traumatic stress disorder. He also required assistance with the process of grief. Initially, Mr Harrison presented with suicidal ideation."

In the course of her very helpful plea, your counsel, Ms Randazzo, advanced a number of matters militating against any sentence of actual imprisonment. These may be summarised as follows:

(1) Your plea of guilty at what proved to be the earliest opportunity; (2) your lack of any relevant prior convictions; (3) the unique, and unintended, consequences of your act; (4) the mental punishment you have suffered, and continue to suffer, because of those consequences; (5) your genuine remorse; (6) your full and frank cooperation with the investigating police; (7) the care you are providing for Brodie, and his overwhelming need for your ongoing presence and support at this time of his life; and (8) the attitude of the Department of Human Services to your continued parenting of Brodie. I take all these matters into account in your favour.

In all the circumstances of this case, which I have spelt out at some length, I do not regard an immediate custodial sentence as appropriate. In the course of your plea, the possibility of an intensive correction order was discussed. Mr Silbert very fairly put the Crown position that such a disposition would be a viable sentencing option for the court to adopt.

I have received as pre-sentence report, and if you agree, I propose to adopt that course by imposing a sentence of imprisonment of one year, and ordering that it be served by way of intensive correction in the community. The core conditions of the intensive correction order are, (1) that you do not commit, whether in or outside Victoria, another offence punishable by imprisonment, during the period of the order; (2) that you report to a specified community corrections centre within two clear working days of the coming into force of the order; (3) that you report to, or receive visits from, the community corrections officer, at least twice during each week, for the first six months of the order. Further, that you attend at the specific community corrections centre, or as otherwise directed by a community corrections officer, for 12 hours during each week, for the purpose of performing unpaid community work, as directed by the regional manager, for not less than eight of those hours, and spending the balance, if any, of those hours undergoing counselling or psychological treatment, as directed by the regional manager; (5) that you notify an officer of the specified community corrections centre of any change of address or employment within two clear working days after the change; (6) that you do not leave Victoria, except with the permission of an officer of the specific community corrections centre, granted either generally or in relation to the particular case; and (7) that you obey all lawful instructions and directions of community corrections officers.

I understand that Frankston Community Correctional Services is the appropriate community corrections centre.

I should add that any breach of this intensive correction order could, amongst other consequences, result in your being sentenced to imprisonment for the unexpired portion of the order.

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Judgment (43 paragraphs)

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