Director of Public Prosecutions v Coleman

[2018] VCC 351

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 17-01835

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT COLEMAN

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Warrnambool
DATE OF HEARING:	21 March 2018
DATE OF SENTENCE:	21 March 2018
CASE MAY BE CITED AS:	DPP v Coleman
MEDIUM NEUTRAL CITATION:	[2018] VCC 351

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr T. Antos	Tait Lawyers

HER HONOUR:

1On 18 June 2017, you Scott Coleman got into a car owned by David Brewer at an address in Wendouree.  You were on the phone trying to arrange a drug deal.  The car was then driven to an address in North Ballarat and from there to Hamilton.

2Mr Brewer, the owner of the car, did not want to go to Hamilton and was arguing with you and another person who was in the car with you and who was in fact driving the car.

3You, Mr Coleman, had drugs on you and you were intending, it would seem, to sell those drugs to somebody along the way.  You went to an address in Heywood where you then sold the methylamphetamine that you had on you to a person by the name of Jason Ford.

4That gives rise to Charge 3 on the indictment to which you have entered a plea of guilty of trafficking in methylamphetamine.

5Mr Brewer did not want to remain there and asked you for the keys to his car.  You told him to "fuck off" and go and sit back in his car while you and the other man remained inside the house in Heywood.  Shortly after that, you came out armed with a claw hammer and struck Mr Brewer on the head.  You struck him twice to the head causing him some bruising and injury and pain to his eye.

6It is that that gives rise to Charge 2 on the indictment of recklessly cause injury.

7You then directed Mr Brewer to get out of the car and told him to "fuck off".  You  got into his car and drove off in it.

8It is that that gives rise to Charge 1, armed robbery, that is, the robbery of the car from Mr Brewer.

9Mr Brewer was taken to hospital.  He was seen to have a laceration to the right of his forehead above his right eye which was caused by your attack with the claw hammer.

10In the early hours of the following morning, you were seen in the car at a Caltex service station in Portland.  At some stage whilst the car was at the service station someone used a paper towel to wipe off blood from the car.  That was blood that had come from the attack on Mr Brewer with the claw hammer.

11At about half past two in the morning, the car was seen in the Portland area by the Hamilton divisional van which pursued it.  The blue and red flashing lights were activated and the occupants tried to intercept the car.  The siren was activated and the police tried to give direction for the car to stop.  It did not and the car sped away. 

12It is that that gives rise to Charge 4 of dangerous driving while pursued by police.

13Relevant to that dangerous driving is that shortly after that, that is after you pulled away and ignored the signals to stop, the car was again observed by the divisional van.  Although initially it was travelling slowly, you then deliberately accelerated quickly and drove directly at the divisional van.  Police had to brake hard to avoid a collision.

14The occupant of the divisional van described themselves as feeling certain that they were going to be injured, if not killed, when you drove towards them in that manner.

15The police stopped the pursuit and the car was seen driving off towards along the Glenelg Highway towards Dunkeld at a speed that was estimated to be in excess of 150 km/h.

16That provides a measure of the dangerousness of the driving whilst being pursued by police.

17Later that morning, just after 10 am, the car was seen again, this time at a Caltex service station in Ballarat.  You parked and filled the car with $81 worth of fuel and drove off without paying. 

18It is that that gives rise to the fifth and final charge of theft.  Theft, of the $81 worth of petrol.

19The investigation into the armed robbery of the car from Mr Brewer and the assault on him and led police to the home in Heywood of the person to whom you had sold the methamphetamine.  He produced to the police a quantity of plastic Ziploc deal bags and the gram of methylamphetamine that he bought from you.  So there was, if you like, that objective evidence in proof of the trafficking in the methylamphetamine.

20It was nearly a month before you were arrested.  You were arrested in circumstances where you had passed out at a home and paramedics had attended.  Police also attended and you were taken first to Ballarat Health Services and then on discharge to the Ballarat police station.

21At the time of your arrest, that is when you had passed out, you had a claw hammer concealed down your pants and another claw hammer was found concealed in the stolen vehicle, the vehicle stolen from Mr Brewer that was still in your possession.  Other items belonging to Mr Brewer apart from his car, namely his Motorola phone and a black cap were also found in the car.

22When interviewed you made a no-comment interview.  The mobile phone was analysed by police after its seizure and although the phone belonged to Mr Brewer there were various messages and photographs on it which related to the armed robbery of Mr Brewer of his car and the drug trafficking by you.

23It is that then that gives rise or provides the final context for the charges.

24You were remanded in custody after being charged and you have remained there ever since.  You have now spent 251 days in pre-sentence detention.

25These are of itself serious offences.  That can be measured in part by the maximum penalties available.  Armed robbery carries a maximum penalty of 25 years imprisonment, recklessly cause injury five years, traffic methylamphetamine 15 years, dangerous driving while pursued by police 3 years and theft 10 years.

26As was acknowledged by your counsel, the most serious charges here really are the armed robbery and the recklessly cause injury, not only because of the circumstances but because of your criminal history.

27I consider also the dangerous driving while being pursued by police is a significant offence given the manner of the driving, your driving history and your history of what might be called oppositional defiance to law enforcement and other officers.

28Mr Brewer has made a victim impact statement in which he speaks not only of the physical consequences, the cut above the eye, the black eye, the swelling up of his eye and the difficulty he had with his vision for quite some time after that, but also the psychological effect; the trust issues he has, the concern about being in company with other people and his avoidance now of the Ballarat area.

29He also speaks of the impact on him of the damage to his car because there was extensive damage to the car by the time it was returned and the economic loss that he suffered as a result of that.  These are all understandable consequences of offending such as you engaged in.

30Having been charged and remanded in custody, you then, as this matter found its way through the court process, indicated your intention to plead guilty at the earliest possible stage to these charges.  I take that into account in your favour.  You clearly, although making a no-comment record of interview initially, once you had a chance to doubt to sober up and settle down and reflect on what you had done and understand the evidence against you, you indicated at a very early stage an intention to plead guilty, thus obviating the need even for preparation for committal, let alone for trial.

31That clearly facilitates the course of justice, has utilitarian benefit and counts in your favour.  It also means that for your victim Mr Brewer, he did not have to face the prospect of the charges being unresolved for a considerable period or face the prospect of having to relive the events and give evidence at committal or trial or face you again for that matter.

32It is clear therefore that having regard just to those circumstances as I have outlined them without any reference to your criminal history, that these are serious offences, that an armed robbery where you hit somebody over the head with a claw hammer and take their car from them when they are at an isolated country area far from their home, is a very serious example of an armed robbery.  The recklessly cause injury, although it is the lowest in the scale of the cause injury offences, is a bad example of its type; hitting someone twice on the head with a hammer causing them a cut on their head and a blackened eye.

33So it is clear that sentencing principles of denunciation, just punishment and deterrence, both general and specific, are important factors in the sentencing mix.

34Balanced against that obviously has to be factors that count in your favour.  Also evaluated, it has to be what weight needs to be given to protection of the community.

35You are a person who, at the age of 31, comes before the court without having enjoyed many of the benefits that many of the people in our society or our community have had in terms of stability of home and family and opportunity.

36You have not had much good fortune in your life.  You were removed from your parents when you were in Year 7 and placed in the MacKillop Children's Home.  That I am told effectively became the end of your schooling at Year 7.  It coincided too with the start of the amassing of what is frightening number of appearances before the Children's Court.  Your first appearance before the Children's Court was in 1997 when you were only 11 years old.

37Your parents both had extensive histories of substance abuse.  You have four siblings and they too were removed from your parents.  Unlike you, who went to the MacKillop Home, they were placed together in foster care.  The effect of that was that you were, at the age of ten or 11, not only removed from your parents, but also separated from your siblings.

38Your history since then is one of disturbingly frequent episodes of offending.  The offending was of a serious nature from the very early days.  The offending was marked by violence, threats including threats to kill, property damage, drug use and trafficking, dishonesty and burglary offences, weapons offences, aggravated burglary and armed robbery charges and driving offences.  That is all taken from the criminal history before you turned 17 and began to be dealt with in the Magistrates' Court.

39I am detailing that not because it is a relevant criminal history for the purpose of sentencing you, but because it is a relevant part of the history that shows the disadvantage that you were exposed to from such an early stage in your life and the difficult path that you had already been so set on by the time you started, at the age of 17, to come to be dealt with in the adult courts.

40Since you came to be dealt with in the Magistrates' Court and the County Court, you have also had frequent appearances before these courts for like offences.  Your first appearance in a superior court was in this court in 2005 when you were dealt with for two charges of armed robbery.

41Like this armed robbery, they involved use of a tool as a weapon on the first occasion as I understand it, a knife or screw driver, and like this armed robbery, it was to take a personal possession from somebody, in the first instances, their wallets.

42Since then the offending that has brought you before the Magistrates' Court or the County Court has been widespread.  Blackmail, damage to property and criminal damage to property, burglary, attempted burglary, thefts, thefts of motor vehicles, possession and carrying of controlled weapons, possession of cannabis and disturbingly as well as the two armed robbery charges to which I have already referred, two charges of recklessly cause injury, two of assault emergency workers when on duty, one of assault with a weapon, two of assault police and one in Queensland of assault occasioning body harm.

43There have also been some cannabis possession charges, multiple driving offences including careless driving, exceed prescribed content of alcohol and two of driving either unlicensed or when suspended.

44You have also a number of convictions for failing to answer bail and or breaching bail conditions.

45Almost every sentencing disposition available has been imposed on you at various times starting with non-conviction adjournment or bonds through to youth supervision and youth detention, on to to community correction orders, suspended sentences, most of them converted to time served and finally to imprisonment from the start.

46Many of the conditional orders that were made were breached and you ended up being back before the court to be re-sentenced when you were unable or unwilling to abide by the conditions of those sentences.  It is a sad and sorry history.

47None of the sentences that have been imposed upon you have been successful in breaking the cycle of offending.  It has become obvious, particularly in more recent years, that you have been on a treadmill of offending, imprisonment, release, further offending and return to prison.  You are clearly at risk of institutionalisation if you are not already on the path to it.

48Running parallel with that history of offending of being before courts, of sentencing dispositions and more recent times more frequent periods of imprisonment is not surprisingly a long history of drug abuse.  You started using cannabis at the age of 12.  You graduated to heroin and from there to ice.  There have been periods where you have been on a methadone program in an attempt to deal with and address your heroin habit.  There has been some engagement with rehabilitation over the years but nothing has had a long term successful outcome for you.

49Not surprisingly too, your family and personal history is reflective of this criminal history and drug history.  When I say reflective of, I do not mean that in a blame sense I mean that it is not surprising when one looks at your criminal history and your drug history, to appreciate that behind it is a very difficult and disadvantaged family history.

50I have already noted that you were removed from your parents when you were about 11.  Your parents may well have been neglectful, there may well have been very good cause for you to have been removed from them.  They may have been inadequate as parents in all sorts of ways, but they were still your parents and when you were removed from them you lost that bond, that often very complex love that exists when parents are not the sort of parents one would like them to be.

51You were also removed from your siblings and lost the support and love of the constant contact with them that can obviously provide.  Your contact both with your parents and your siblings since you were removed from the family and placed at MacKillop was sporadic at best.  Removal such as that breaks those family bonds and makes things very difficult. 

52You have only had one serious romantic relationship in your life and that was over ten years ago.  From that relationship was born a child, a boy now nine who lives with his mother.  According to the report of Mr Healey, she is somebody who did not have a history of drug abuse and seems to have been able to provide him with a good and stable home.

53It is clear just from what I have already identified that attachment, loss and grief are obviously going to be significant issues for you.  Loss and grief I accept are at the moment significant issues for you.

54You express great love for your son but you are all too aware that your drug use and chaotic life has seriously limited the opportunities that you have had for exposure to him.

55Fortunately though, it seems as though he has got some stability from his mother and that there is encouragement when you are clean and unimpaired by substances to be able to see him and to keep on trying to forge bonds of relationship with him.

56In the last six years your grandmother, who had been a significant figure in your life, particularly during the chaotic times when you were with your parents and in the time after you and your other siblings were removed from them.  But six years ago, that important figure, your grandmother, died.  A year after that your mother died.

57Now hers was one of those deaths that would give, I suspect, an increasing level of distress and frustration because it was, like much of her life, wasted and avoidable.  She was struck as a pedestrian when impaired by substances.  So one can understand that mixed with the grief would be an anger at the futility, or the waste of the manner of her death.

58After that, a sister, one who you had managed to re-establish relationships with and who you had lived with on one of your periods of release from custody was diagnosed with cancer and died at the age of only 32.

59These would be difficult losses for people better resourced than you to deal with and one can only imagine the impact it has had on you.

60Not surprisingly, given the history that I have already recounted, you have got almost no history of employment.  You had one period of employment it would appear at an abattoir.  There is very little in the way of skills or training.

61Despite the bleak picture that this paints, clearly you are not without hope for your future and you are not without resource.  You appear to be a man of, I would imagine, about average intelligence.  Mr Healey's report is a little difficult to decipher or rely on because of the overlays of long-term substance abuse, poor education and just the difficulties of being in prison at the time of assessment.

62But you certainly do not impress as being suffering from an intellectual disability or an acquired brain injury that so impairs you that you are not able to function properly.  So you would appear to have the mental and intellectual capacity to be able to acquire skills, both life skills and employment skills to better equip you in the future.

63But you are also not without hope for these reasons.  The love that you express for you son is obviously a genuine and deeply felt thing.  Your desire to be something for him and something in his life gives a very important thing to look forward to and to plan for and to actively encourage.

64Despite the obvious deprivation and disadvantage of your childhood, your father has shown that people can, even after a long history of substance abuse, turn their lives around.  He has been living a quiet and sober life in Hamilton working hard and managing to put his substance abusing history behind him.  That provides inspiration that you can do it too and that you will have his support, encouragement and understanding in doing that.

65Consistently with that, each of you holds out the hope and the prospect that upon your release from this sentence and the other sentences that will be imposed by reason of the last lot of outstanding charges you have, that you will be able to live with your father again in Hamilton on release and have a real chance at making a fresh start, away from old and bad associations.

66Sadly, as I was saying in the course of the plea, it may be that your times in custody have to date, been the only periods where you have had a level of stability in terms of secure accommodation, regular meals, routine and an ability to be able to start to recalibrate to what is a normal life, that is a life not impaired by substances and not having to worry about where you will sleep the next day or where your next meal is going to come from.

67But whilst seeing that that stability may be a good thing for you in the short term, it is also really important to guard against the risk of institutionalisation if the cycle that you have been on of offending and returning to gaol is to be broken.

68So what I am going to do is structure what has been conceded to be the inevitable, a prison sentence involving more time in custody that must flow from these charges, to allow prospects for you to work up to acquiring skills before you become eligible for parole.  That should maximise your prospect of being considered to be eligible for parole and then acquiring and being able to build on those skills upon parole release.

69The worst thing for you would be to be released without any parole at all, without any supervision, or support in the community.  Because that is going to be your most vulnerable time, your release back into the community.

70It is clear that you need, and need in custody, education in life skills, relationships, anger management, dealing with difficulties without resorting to your previous crutches of drugs and alcohol, serious and long term drug and alcohol counselling and rehabilitation and treatment and the acquisition of vocational skills.  You will need support and supervision on release to build on the gains that you will be able to make in custody if you engage in courses such as those I have identified so that you can have a structured and supported reintegration into the community and give you the best prospect of living a life where you are not going to continue to come back before courts and go back into gaol.

71Thirty one is a time to start thinking about where you want your next 20 years to be, somewhere other than a gaol.  Whilst you have not had much opportunity or advantage in the past, it is the time when the brain might sort of catch up with the body and you might have some time to feel confident enough about building on the good things you have got and seeing a hopeful future ahead of you.

72So I recommend and urge Corrections and the parole authorities to give you every opportunity to build the skills you will need to manage and integrate a return to the community before you embark upon independent return to the community, to help give you the skills in life and education that you were deprived of in your childhood through no fault of your own.  Whilst that is history, it has set you back a fair way, and you deserve opportunities and chances to help you try and catch up.

73So that is the planning behind the sentence.  There has obviously got to be some degree of cumulation of the sentence for some of the charges because they reflect a different offending, but there is obviously also in my view, a need for substantial concurrency because it is part of a course of conduct.  I have tailored the sentence, I hope, so as to reflect the disadvantage of your upbringing but as well as to give you those opportunities.

74The sentence also thought must serve as that warning to you that this is what will happen if you keep on offending in this way and a warning to others that these are the sort of sentences, the minimum sort of sentences they will get if they embark upon the sort of conduct that you embarked upon in this disgraceful episode.

75But I do hope that that gives you a real chance of saying you can now consolidate, have all your charges dealt with and look forward to planning for a much better future, understanding that acquiring skills in gaol will help you on your release so that you are less likely to come back before a court again and able to enjoy a better, happier life.  One where you can see the police driving down the street and not wonder whether they are out for you or whether you are going to be in trouble because you have got something on you that you should not or you have just done something that you should not have.  So I hope it gives you some hope.

76Please stand.  Scott Coleman, on the five charges to which you have pleaded guilty you are convicted:

77On Charge 1 of armed robbery, you are sentenced to be imprisoned for a period of four years and six months;

78On Charge 2 of recklessly cause injury, you are sentenced to be imprisoned for a period of 12 months;

79On Charge 3 of traffic in methylamphetamine, you are sentenced to be imprisoned for a period of six months;

80On Charge 4, of dangerous driving while pursued by police, you are sentenced to be imprisoned for a period of 12 months; and

81On Charge 5 of theft, you are sentenced to be imprisoned for a period of one month.

82I direct that three months of the sentence on Charge 2, two months of the sentence on Charge 3, and four months of the sentence on Charge 4 be served cumulatively upon each other and upon the sentence on Charge 1.

83That makes a total effective sentence of five years and three months and I fix the period of three years and six months as the time that you must serve before being eligible for parole.

84I declare that you have spent 251 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

85Pursuant to s.6AAA of the Sentencing Act I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of eight years and fixed a non-parole period of six years.

86On Charges 1 and 4, all licences held by you are cancelled and you are disqualified from obtaining a further licence for a period of 12 months.

87I make the disposal order sought in the terms sought.  Any other orders required to be made?

88MR CORDY:  No, Your Honour. 

89HER HONOUR:  The arithmetic correct?

90MR CORDY:  Yes, Your Honour.

91MR ANTOS:  One matter, Your Honour.  In your sentencing remarks, I believe Your Honour referred to a screwdriver.

92HER HONOUR:  Yes.

93MR ANTOS:  I believe, correct me if I am wrong, I believe I said knife in respect of that matter, not screwdriver.

94HER HONOUR:  I think you did but Mr Healey's report said screwdriver.

95MR ANTOS:  Yes, there were two counts.

96HER HONOUR:  Knife or screwdriver.

97MR ANTOS:  Yes.

98HER HONOUR:  Thank you.  Are you happy if I amend the sentencing remarks to say knife or screwdriver?

99MR ANTOS:  Yes.

100HER HONOUR:  All right, thank you, I will do that.  Yes, so have you checked the arithmetic now?

101MR ANTOS:  Yes, we are.

102MR CORDY:  Yes, Your Honour.

103HER HONOUR:  Thank you.  Could you remove Mr Coleman please.

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