Director of Public Prosecutions v Arnott

[2018] VCC 758

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 17-02021
CR 17-02022

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY ARNOTT
BRYAN SCOULLER

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	25 May 2018
CASE MAY BE CITED AS:	DPP v Arnott
MEDIUM NEUTRAL CITATION:	[2018] VCC 758

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough	Office of Public Prosecutions
For Accused Arnott	Mr A. Paull	Adrian Paull
For Accused Scouller	Mr M. Brugman	Michael Brugman

HIS HONOUR: 

1Ricky Arnott and Brian Scouller, you are two men are friends.  On 11 March 2017 you, Ricky Arnott went to Brian Scouller's house for a family celebration.  You both drank alcohol for a number of hours. 

2At some time after midnight, you two men left Mr Scouller's address and headed to where Mr Arnott was living.  There were two other men with you who remain unknown.  You, Mr Arnott, had an ongoing dispute with the victim in this matter, a man who had at one point seems gone out with your partner's sister.  You say that he had said or sent insulting, provocative messages to you.  You had sent threatening messages to him or a message to him on New Year's Eve 2016 but had not acted upon that until this night.

3So it was, in the early hours of 12 March 2017 that you arrived at victim's house in Norlane.  He was still up on his couch talking on the phone to a friend. 
He heard the front window of the lounge room smash and put the phone down and went to the door. 

4As he opened the door he saw you two men, Mr Arnott and Mr Scouller, who he knew, standing at the entry.  The other men who were in the background, he could not recognise.  But as soon as he opened the door, you two men rushed inside and knocked him to the ground.  You then both repeatedly punched and kicked him to the head and upper body.  He tried to protect himself and you continued with your attack.

5The friend of the victim, who was on the phone, could hear his distress from the phone call that had not ended.  You then both ran from the premises but what was seen on a neighbours CCTV vision was four men leaving approximately two minutes after they had arrived.  The whole attack took about a minute or so.

6The victim was taken to the Geelong Hospital.  He suffered multiple lacerations and bruising to his head and face.  CT scans were taken which showed significant bruising but no internal injuries but the photograph of his injuries that I have seen were concerning.

7While there was no victim impact statement, there is no doubt that this was a terrifying ordeal.  Everyone is entitled to feel safe when at home.  No one should have their house broken into and be attacked by a group of angry drunken men.

8The kicking when the victim was down, as well as the punching, was cowardly conduct.  This sort of offending is corrosive.  People in our community fear that they or those close to them are not safe from violent home invasions. 
Those who commit these violent offences must expect that in most cases, a sentence of imprisonment will be imposed.

9However, as the High Court recently emphasised, individualised sentencing is what guides sentencing judges.  Thus, the particular circumstances of this offending being a violent but brief episode is an important part of the matrix.  Also, I must consider the personal circumstances of each of you.

10You, Mr Arnott, are now 29.  You and your two sisters were raised Queensland by your mother.  Your father it seems was addicted to drugs and drank excessively and played a limited, if any, role in proper parenting. 

11You obtained a Year 12 education and later certificates in horticulture. 
Your work history thereafter has been very solid.  You have done labouring work mainly in the meat industry.  You came to Geelong, it seems, in your mid-20s and have worked four and a half years at MC Herds, the well-known abattoir.

12Recently, you moved from a slaughterman job to maintenance in order to advance yourself with an hope for an apprenticeship.  That did not eventuate and your current position is one with a lower wage.

13Notwithstanding that, you provide child support for your two children.  They are important to you, you look them yourself on a regular basis as per agreements with your ex-partner. 

14Thus, you have a good work history, a solid job, stable accommodation and a family that relies on you.  All of this would be lost if you were imprisoned 
I will return to the appropriate sentence for you after dealing with Mr Scouller's personal circumstances.

15You, Bryan Scouller, are a younger man, 22 at the time and 23 now.  Until this ugly incident, you had led an unblemished life.  Subsequent, you have been before the Magistrates' Court for a violent offence.  It seems the magistrate has, in effect, deferred sentencing so you could do an appropriate men's behaviour program and parenting program.  You have participated well in those program to date.

16Despite your young age, you have three children.  You and your partner have been together since your mid-teens.  You do not live together but you play an important role in supporting your partner and parenting your children.  You too have a good work history, your current job as a driver for concrete mixing company is solid but you would not be able to remain in it if you were imprisoned.

17You live with your mother.  You enjoy considerable support from friends and family.  The letters written were of significant help to me.  Like Mr Arnott, your father was someone who was troubled by drugs and died early. 
There was considerable grief.

18There have been other aspects of your life shared with your partner that have involved significant grief and I take that into account in mitigation.

19Why you became involved in this petty argument and displayed such violence is bewildering.  The alcohol that you and your co-accused Mr Arnott had is perhaps an explanation but you should both be assured that it is no excuse and it does not lessen your sentence whatsoever.  But I do, for both of you, accept that this violent attack was out of character and both of you do not present as ongoing risk into the future. 

20You too, Mr Arnott, if I can return back to you, are a man without any prior criminal history or subsequent.  You are entitled to call on your unblemished record in seeking a merciful outcome.  I accept that both of you are remorseful and ashamed.

21Counsel for each of you, while acknowledging the seriousness of the offences submitted that a community corrections order alone could properly meet all sentencing purposes.  The prosecution submitted that such a penalty alone was within appropriate range or within proper sentencing discretion but so too would be a sentence of imprisonment combined with a community corrections order.  I had you both assessed and you were both found suitable for community corrections orders. 

22It should not be forgotten that the previous Attorney General when introducing the current community corrections orders regime spoke of the importance of ensuring rehabilitation by allowing stable family connections to be maintained.  Additionally, it was expressly said that the new community corrections regime was no soft option. 

23As set out, each of you have the support of families but more importantly, each of you have significant family responsibilities.  Each of you are working but importantly will be unemployed if you are incarcerated.  You, Mr Arnott, have the two children that I have spoken about and you, Mr Scouller, have the three children that I spoke about. 

24The Court of Appeal in the case of Boulton, an important guiding appeal in which the Court of Appeal dealt with this new community corrections regime and in other cases since have made it clear that the community corrections orders, when imposed, impose punishment and yet are able to simultaneously allow for appropriate rehabilitation.

25In circumstances where both of you, until this offence, had led a productive and unblemished life and where both of you are rightly ashamed and remorseful. 
It is, in my view, appropriate to consider giving each of you a second chance.

26As noted, a community corrections order is a sentence involving punishment.  It will be no soft option.  In this case I do not consider that the punishment of last resort, that it is imprisonment, is required.  The sentencing purposes of denunciation of this serious offending and deterrence to others who might be like minded and your rehabilitation, they can be adequately and appropriately met by a long and onerous community corrections order.

27It should not be taken that a non-custodial penalty is the norm for such offences; on the contrary.  The particular and compelling individual circumstances of each of you in this case permit this unusual outcome. 

28I should emphasise that your pleas of guilty are very important.  They require a lesser sentence and your pleas of guilty and the time that they were entered allow consideration of a penalty of a different kind to that of imprisonment such as the penalty I am about to impose.  I intend to impose an aggregate sentence. 

29Can you please stand?

30The aggregate sentence for the crimes that you committed, the aggravated burglary and causing the injury.  You are both convicted and each of you placed on a three years community corrections order.  Those community corrections orders will be by and large the same but slightly different for you perhaps
Mr Arnott. 

31I will start with you, Mr Scouller.  You will be required under the community corrections order to do 250 hours of unpaid community work.  You will have to undergo treatment and rehabilitation - that is programs that are directed towards the risk of you reoffending.

32You will have to be under the supervision of the Office of Corrections. 
There are other conditions which I will read out to you which are the mandatory conditions.  Those that I have read out thus far are the particular conditions that apply to you.

33In your case, Mr Arnott, you too will be required to do 250 hours of unpaid community work.  You too will undergo a treatment and rehabilitation - that is, programs directed at ensuing that you don not reoffend.  You too will be under the supervision of the community corrections officer but you will have to undergo assessment, treatment and rehabilitation for alcohol abuse.

34Had each of you pleaded not guilty to these offences, I would have imposed a sentence of two years with a minimum term of 12 months before you be eligible for parole.

35Is there any other orders required?

36MR GOODENOUGH:  There were forensic sample applications, Your Honour, for each of them.

37HIS HONOUR:  All right.  Anything to say about them?

38MR PAULL:  No, by consent, Your Honour.

39HIS HONOUR:  In each of your cases, the prosecution has sought from you a forensic sample.  That is a scraping from your mouth so that what can be obtained is your DNA.  Your DNA will be placed on a database. 

40Considering that application, I intend to grant it.  The reasons for that are because of the seriousness of the offences that you committed and also because it is in the interest of justice that you provide such sample.  I note that neither of you oppose and indeed, consent to it.

41So you have to understand that when you head off to the police station, I will explain what that all means, to have the sample taken that if you do not cooperate with the person who is authorised to take that sample then that person is authorised by me to use reasonable force to enable to get the sample from you.

42The way through it, of course, is to cooperate in accordance with what I have heard from your counsel which you consent to such an application. 

43Now what is required is that a window will open, if I can express it that way four weeks from now.  And that window will remain open for four weeks and it is within that four weeks, the second of those, that you have get to the police station and have the sample taken.  Do you understand that? 

44So it does not happen for four weeks but then you have only got four weeks and you have got to get it done.  Do you follow?  All right.  I will sign those orders. 

45MR BRUGMAN:  If Your Honour pleases.

46HIS HONOUR:  Each of you will - can take a seat.  Shortly, a document will be produced and I will read it out to you.  And I will return back to a point I hope you well appreciate, that you have been given a second chance.  And if you breach this order, do not doubt for a moment that you will go to gaol. 

47Mr Arnott, if I can deal with you first?  The community corrections order that has been imposed for the aggravated burglary and the recklessly cause injury will last three years.  That is a lengthy period of time.  So from 25 May 2018, today, to 24 May 2021. 

48In previous regimes, that was as long as a community corrections order could possibly be.  We now have a capacity for longer but that is, nonetheless, an indication to you of the seriousness of what you have done. 

49The conditions that apply to everyone on a community corrections order is that you must not commit another offence for which you could be imprisoned during the time the order is in force. 

50Let me just pause:  almost every offence you can think of is an offence that is punishable by imprisonment, an assault or stealing a can of drink - if you do that in the next three years, you will breach this order, you will come back here and you know what I have said.

51You must comply with obligations and requirements under the sentencing regulations.  They really say that the community corrections people might need to take a photograph of you to identify you.  You have just got to cooperate with all of that.  Indeed, many of these are about cooperating with the Office of Corrections. 

52So you must report to and receive visits from the Office of Corrections. 
You must report to the Community Correction Centre here in Geelong, the address is there in Little Malop Street within two clear working days of the order starting, so get there on Monday or Tuesday at the latest.

53You must let the community corrections officer know within two clear working days if you change your address or your job.  You must not leave Victoria without getting permission to do so and you obey all lawful instructions and directions from the Office of Corrections.

54So those are the conditions that apply to everyone, what applies to you is that you must perform 250 hours of unpaid community work over the three years as directed by the regional manager.  Now you were asked about that in your assessment and you said you could not identify any reason that would affect your ability to do the community work condition.

55You have got a lot of responsibilities at work and with children and so on and so forth.  But you have to understand that this is the punishment in lieu of imprisonment.  It is not voluntary, it is not that you can choose to go one week and not the other.  Just get it done. 

56You must under the supervision of the community corrections office for three years.  They will want to know how you are going.  They will want you to meet them and telephone calls and the like.  You cannot miss them, they are not voluntary either.

57And finally, you must undergo assessment and treatment for alcohol abuse and dependency as directed and you must participate in programs or courses that address factors relating to this offending.  They will probably be the same but they will assess all that and require you to do that.

58If you sign this, it will bring the matter to an end.  I will get both these men to come forward shortly Mr Brugman and Mr Paull.

59Mr Scouller, you have heard what I have just said to Mr Arnott and it applies to you.  A community corrections order for a lengthy period of time, 25 May, that is today, 2018 until 24 May 2021, all right?  They are mandatory conditions.  You must not commit another offence for which you could be imprisoned during the time the order is in force, do you understand that?  You have had a problem subsequent to this - any further offending in the next three years, if it is punishable by imprisonment and, as I said, most will be that you could think of such as assaulting someone, that will see you back here, no other chance.

60You must comply with the obligations and requirements under the sentencing regulations.  You must report to and receive visits from the Office of Corrections.  You must report to the community corrections centre within two clear workings days, the address is here in Little Malop Street at the State Government Offices. 

61You must let the community corrections officer know within two clear working days if you change your address or your job.  You must not leave Victoria with getting permission to do so and you must obey all lawful instructions and directions.

62All right, unpaid community work.  You must perform 250 hours of unpaid community work over the three years and I have checked your discussion with the assessors and you saw no reason that you would not be able to do the community corrections.  So that is each and every hour, each and every time. 

63Now you must be under the supervision of the community corrections officer for three years.  That is the telephone, the visits - they have got to know how you are going, whether you are going forward or backwards.  You must participate in programs and courses that address factors relating to your offending as directed, do you follow?  If you sign that, that will bring the matter to the end.  Both men can come out of the dock and come up to where the barristers are and sign these documents.

64The orders relating to the forensic sample are there for each, thank you. 
Thank you.  So you would have read before signed, Mr Scouller, that where you signed that says "I understand the effect and conditions of this order and consent to it being made"  That means you will do it.  Likewise to you, Mr Arnott.  You will get copies of those and when that is done, you are free to leave and start organising yourself for Monday or Tuesday to get to see these Office of Corrections people and start these orders.  Is there anything further required?

65MR GOODENOUGH:  No, Your Honour.

66MR PAULL:  No, Your Honour.

67HIS HONOUR:  I thank counsel for their considerable assistance.  I take a moment to say, as I did when you weren't here Mr Paull to Mr Arnott that the legal profession routinely help people out by doing things for free. 
It's not acknowledged sufficiently and this was a circumstance where you just simply helped someone out who needed help and the court is in your debt for that.  Reputations are made, they're important for lawyers and it has been enhanced.  Thank you.  If there's nothing further, we'll adjourn until Monday.

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