Director of Public Prosecutions v Davis

[2019] VCC 552

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00380

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT DAVIS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2019
DATE OF SENTENCE:	4 April 2019
CASE MAY BE CITED AS:	DPP v Davis
MEDIUM NEUTRAL CITATION:	[2019] VCC 552

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MR J. BARRINGTON
For the Accused	MR J. IRWIN

1HER HONOUR:  Scott Davis, you have pleaded guilty before me to one charge of attempting to pervert the course of justice, two summary charges of driving whilst disqualified and one summary charge of failing to exchange name and address at the scene of an accident.  The facts underlying the offending are as follows. 

2On 29 September 2014, your licence was disqualified for 14 months by the Ballarat Magistrates' Court.  On 19 May 2015 you were placed on a community corrections order for 12 months on a charge of driving whilst disqualified and you were ordered to undertake unpaid community work whilst on that order.  On 5 August 2015 you drove your car to the Bacchus Marsh oval to complete unpaid community work as part of that community corrections order.  Driving there underlies one of the summary charges of driving whilst disqualified.  You met your corrections supervisor, completed your work at about 3.20, and left the oval in the car that you had driven that morning.

3Driving the car on that second occasion underlies the second summary charge of driving whilst disqualified. I should add the summary charges were uplifted to be heard with the plea pursuant to s.145 of the Criminal Procedure Act.  You drove along the Western Highway and exited the freeway at Water Street.  You were travelling behind another car driven by a Ms Jasvir Kaur.  You stopped to give way to traffic travelling along Water Street.  You failed to stop in time and collided with the rear of the victim's car.

4The two cars turned left off the ramp and the victim got out of the car and approached you.  You demanded that she give you her licence and pay $400 to pay damage to your car.  She asked you for personal details and you refused to give them.  Those actions underlie the summary charge of failing to give the name and address to the owner of a car at the scene of an accident.  You continually swore at the victim as you did this.  You then made three phone calls to your partner, Sharntelle Hodge, who rang a friend asking her to care for your children.

5Ms Hodge came to the scene of the accident, had a short talk with you and approached the victim, asked her what happened and whilst the victim was responding to Ms Hodge you opened the passenger side door and took her purse (it was lying on the seat) removing her licence from her purse and putting the purse on the roof of the car.  You then photographed her licence.  Ms Hodge yelled at you and told you to, "Leave this".  The victim got out of the car and then you threw her purse back into the car through the window. 

6She was scared and drove away from the scene.  All the while she was on the phone to her husband who was in India at the time.  She then drove to the Shell service station where she stopped to see if she had taken a photograph of your registration.  That afternoon you sent a copy of the victim's licence details to your uncle.  You were arrested by police that night and interviewed at the Ballarat police station where you said that Ms Hodge was driving you to and from your community work that day and it was she who was involved in the accident.

7You also told police that the victim had reversed her car into yours, which was then being driven by Ms Hodge.  It is quite clear that what you told police on that occasion was simply untrue.  Ms Hodge, your partner, who had never been in any trouble, backed you up and was ultimately charged with attempting to pervert the course of justice for giving the same version of events pursuant to your instructions.  I dealt with her in a plea on 1 November 2016 and as a result of this she was placed on an undertaking to be of good behaviour.

8This matter proceeded by way of a plea of guilty which was entered before a contested committal began.  It is accepted that your plea was entered at an early stage.  You have a fairly extensive, in one sense, criminal record going back to 2004.  You have been dealt with on numerous occasions for driving whilst disqualified, careless driving and speeding.  You have been fined.  You have been placed on an intensive corrections order, which you breached.  In fact, most of your offending relates to driving offences. 

9On 20 September 2014 you were again dealt with for speeding and for drink driving, and again as I have said on 19 May you were placed on a community corrections order for driving whilst disqualified which order you were still on when you committed the current offending.  Ordinarily your background and the circumstances of this offending, attempting to pervert the course of justice being an extremely serious charge, would lead a court to immediately conclude that the only way that you should be dealt with is by way of a term of imprisonment to be immediately served.

10However, there are circumstances in your background which have led me to decide otherwise. 

11You are now 34 years of age.  You are the only child of your parents.  You have never met your father and you are estranged from your mother.  You had some difficulties at school, you very much disliked it, and reported problems with literacy and numeracy which continue to be a problem for you to this day.  You started an apprenticeship as a mechanic but left after two years.  You then obtained a heavy rigid licence and worked as a truck driver over a number of years.  You have held labouring jobs, including brick laying and concreting.  You have got an impressive work history.

12However, you have had a difficult childhood with your mother from whom you are now estranged.  You have grown up in a fairly solitary fashion and in your younger years went through a period of serious substance misuse.  You began drinking when you were 14.  You drank regularly from age 18 and for a five-year period would drink up to a slab of beer a day.  You also have a heavy past use history of cannabis using up to 28 grams a week between the ages of 16 and until about 2016, which is an enormous habit.

13You also were a regular user of ice between the ages of 25 to about 30.  You described your use to neuropsychologist Dr Sara Fratti, whose report dated 25 May 2018 was tendered on the plea, as out of control.  You stopped using ice after a number of your friends died from it.  You had had, in about April of 2018 just before being assessed by Ms Fratti, a relapse where you were offered some ice by a friend.  You have managed, however, to turn your life around.

14You have been in a relationship with your partner for over a decade.  You have two children aged nine and seven, and from all accounts you are a devoted parent.  The two of you have purchased a house over in Broomfield, which is fairly remote location in rural Victoria in the Ballarat region, over which you have a $350,000 mortgage.  Your partner has never been in any trouble apart from the matter for which I dealt with her back in 2016.  At the time I first dealt with you in March of 2018, you were working both as a concreter for a friend and also establishing your own concrete business.

15You and your partner, who is in her second year of a Bachelor of Nursing, have lived under a situation of considerable financial stress for some years and it was quite clear that loss of your licence was going to be ruinous for you.  However, you had made arrangements at the time that you committed the offending to otherwise drive but on this occasion when you were attending community corrections could think of no other way to attend the work component and you were extremely concerned about being breached because of what that would mean for your family.

16Therefore, you made the extremely foolish decision that you did to drive on that occasion.  It appears you were in a state of some panic when the accident occurred and that led you to behave in the way you did, that is, trump up the story that you told police and possibly underlies the aggressive way in which you reacted to the victim.  In other words I am satisfied that you went into a complete panic over what the situation that you had got into could mean for your partner and family. 

17You were, after all, driving whilst disqualified.  You were after all in a position where you had reoffended and I am satisfied that the consequences of that probably flashed before your eyes and caused you to behave in the way you did.  I do not regard that as any excuse for your offending - let me make that very clear.  But I do regard it as some explanation. 

18This matter has had quite a protracted history before this court.  You first appeared before me on 16 March 2018, at which stage I ordered a psychiatric report, that being two and a half years since the offending.  You have gone on under a situation of considerable emotional stress and psychological stress to continue with your life as a parent, partner and hard worker.  In other words you had not offended for two and a half years.  I received an old psychological report which indicated that you may have been the subject of an injury which had resulted in a significant acquired brain injury.

19A subsequent neuropsychological report did not reveal any evidence of an acquired brain injury but I deferred sentencing in this matter to see if you could continue on the good strong path you had of attending to your family and your work with a view to possibly placing you on a community corrections order.  I should note that in the references I received, which were impressive references, your former employer Rod Carroll spoke of you as someone who was as well as working for you trying to run your own business and described you as, "A very hard worker and the sole provider of his partner and two children."

20Your partner does some part-time work as a bookkeeper and is seeking further part-time work, but there is no doubt that you are extremely financially stressed.  There was a very impressive reference from a friend, Lena Zumbo Gregory, who has known you for some years and has in fact employed your partner as a bookkeeper, describing her as a lifesaver.  She stated, "As a family Scott and Sharntelle [your partner] are two dedicated parents involved in school and sporting activities."

21She said that your partner was the parents and friends committee secretary for two years, that you helped run a stall, that she noted how you always made an effort to be involved in your children's sporting activities and said, "He is a family man and anyone who's seen Scott with his children can appreciate the love he has for them and Sharntelle."  She also described your willingness to help others, noting how you had helped her family by resurfacing their driveway, fixing the sewerage, landscaping their backyard and so forth.

22She stated, "Over the years the family have struggled financially by their determination to own their own home and provide their children a country upbringing with children to cherish."  She talked about how you had a range of animals and she said, "I'm amazed at his dedication to maintaining the property, animals and being a supportive father, partner and father whilst working full-time and still trying to build up his own business."  She said she had noted your emotional struggles over the years.  She said:

"Scott was under a lot of strain at the time of the driving incident and was struggling mentally and emotionally and thinking irrationally.  He has made an amazing turnaround since then and it would be a real shame to see the family divided."

23Both psychological reports, and I refer also to the report which is dated 25 May 2018, refer to a long running problem with depression which was exacerbated when you were attacked by a former employer and some of his employees, after they decided you had engaged in theft, which you denied.  You were physically attacked.  You reported this to police.  Nothing ensued, but it has left you with further emotional difficulties.

24You were assessed as being depressed by the neuropsychologist, Dr Fratti.  She described your depression as being elevated and falling within the moderate to severe range whilst your anxiety and stress fell within a moderate range.  Now, use of moderate should not be used in these circumstances in the lay term.  That means you have been labouring under what would be very much regarded as severe anxiety and depression. 

25In the circumstances, you have done very well in the adjourned period, bar for some incredibly unfortunate and stupid incident in October over which you have been charged.  You have regained your license but there was a condition that you drive with an alcolock.  Alcolocks are expensive and you have two vehicles and could only afford to install it on one vehicle, which is your work vehicle, which you normally drove.

26On this particular occasion, whilst driving far from home, your counsel informed me, the head gasket blew up, you had your dogs and heavy equipment in the back of your truck.  You hitch-hiked back to your property and according to what you told me in court today, made a number of phone calls but were unable to get any assistance.  You were anxious to get back to your truck because of the dogs and because of the equipment and so you drove your other car, which did not have an interlock device fitted.  It was a three-hour drive to where your car had broken down, a six hour round journey overall.

27Along the way, you failed to observe the speed signs relating to a number of road works and you were picked up for speeding.  It was incredibly unfortunate.  It appears to have been a situation in itself, surrounded by some stress.  You are yet to be dealt with for the charges that have arisen, which are speeding and failing to use an interlock device.

28I do regard that offending as having occurred late in the adjourned period.  There do appear to be extenuating circumstances attached to it and they do not detract from my conclusion that you have very largely rehabilitated yourself and do not present as a danger to the community.

29Going back to your original offending, whilst I regard the offending as extremely serious and do not see any excuse for it, my concern is that you have been a stressed man who has turned his life around but has possibly almost taken on too much in terms of the support you seek to offer to your partner and the goals you set for yourself; that is, owning your own home and running your own business.

30I am satisfied that those circumstances underlie your offending and indeed underlay the aggressive way in which you responded to the victim of the accident and your decision, then, to make up the lie that you did.

31I regard delay as a particularly significant factor to which I should have regard in the sentencing process.  You have been assessed as suitable for placement on a community corrections order and I propose to place you on that order.  In sentencing you, I take into account your plea of guilty, which I regard as a genuine expression of your remorse; your prospect of rehabilitation which I regard as favourable; the delay, which is considerable - I should add that there had been considerable delay in any event by the time this matter first came before me - and the strong protective factors in your life, which are your partner, your children and your work.

32I am satisfied that you have largely dealt with your drug and alcohol problems.  However, I am going to place you on a community corrections order which is going to be longer than I would usually impose, partly because of the seriousness of the offending which requires some expression of condemnation on the part of the court.  And a community corrections order is meant not only to be a rehabilitative order but also to mark a courts displeasure at offending.

33Could you stand up, please.  I can only place you on a community corrections order with your permission.  Therefore I need to outline the conditions to you.  They are that you must report to the community corrections order within two working days of the making of this order that is by Monday of next week.  Whilst on the order, which will last for three years, you must not commit any offence punishable by imprisonment.  That means a drive whilst disqualified for you.  Do you understand?

34If you knock off a box of matches you will be in trouble.  It does not mean you have to be gaoled.  It means if you commit an offence for which you could be gaoled, you will breach the order.  You may not leave Victoria without the permission of the community corrections office whilst on the order.  You must report any change of address or employment within 48 hours of the making of that change.

35You must not attend upon the Office of Corrections under the influence of drugs or alcohol.  You must obey all lawful directions of the community corrections office and you must attend upon and receive visits from the community corrections office.  I am going to make an order that you undertake 150 hours of unpaid community work.  And I know that is going to be hard for you, but you are just going to have to do it.  Do you understand?  The other option is gaol, Mr Davis.  Okay?  You either do your hours or you go to gaol.  That is how it is.

36You are also to be under supervision.  You are to attend for assessment and treatment for drugs and alcohol.  I know you are not using them, and they probably will not keep you on a program for long, but nevertheless in the circumstances, you do need to be tested for them.  And this bit is really important.  You are to attend for assessment and treatment for mental health difficulties.  You will also attend for judicial monitoring.  You will be coming back in front of me on a regular basis.  What I will do is I will order that you only have to go to Ballarat Community Corrections Office and you will be beamed in at 9.30 in the morning and it may be that we may have to do some - I want to check in to make sure that we find the right psychologist for you.  There may be some shopping around.  Do you understand about this order?  Do you think it is a bit rough, do you?

37OFFENDER:  No.

38HER HONOUR:  No?  Good.  Do you understand it has got to be the number one priority in your life?  All right.  I note that the prosecution have very understandably submitted that I should deal with you by a term of imprisonment to be immediately served, but in my view you are a man who has over a long period of time demonstrated remorse in terms of the way you have conducted your life and I do not regard the reoffending as being an indication that you are careless of your obligations.  Again, it appears to have extenuating circumstances to which you reacted at the time.

39As you told the court, you did try but could not find anyone with a sufficiently large vehicle who was prepared to make the six-hour round journey that was required to retrieve your dogs, your equipment and your vehicle.

40Hopefully nothing like that comes up again whilst you are on this order, Mr Davis.  Are you prepared to enter the order?  Thank you.  Have a seat and we will prepare the materials.  We will do judicial monitoring in three months.  Is there anything you wanted to say Mr Barrington?

41MR BARRINGTON:  Only 6AAA, Your Honour, and also ‑ ‑ ‑ 

42HER HONOUR:  I do not have to do a 6AAA because it is a community corrections order.

43MR BARRINGTON:  Certainly.  And ancillary orders we - I'm instructed to seek a s.464ZF forensic sampling order.

44HER HONOUR:  I do not know if that is particularly - what do you say ‑ ‑ ‑ 

45MR BARRINGTON:  Those are my instructions.  I won't press it particularly hard.

46HER HONOUR:  No, I understand.  No, I am not going to grant one.  His offending is always driving offending.  I do not know that having his ‑ ‑ ‑

47MR IRWIN:  He doesn't have a history of violence offences or theft or burglary or any of that sort of stuff.  I'd submit that it's not (indistinct).

48HER HONOUR:  No.  Yes.  Very largely, his offending seems to be - it is driving offending and my understanding is that over the years, it has always arisen in the course of his employment.  He is one of those ones - he loses his licence, he loses his job, and so he drives and it makes matters worse.

49MR IRWIN:  Yes.

50HER HONOUR:  All right.  I am not going to make any order as to his license.

51MR BARRINGTON:  As Your Honour pleases.

52HER HONOUR:  I think that would be a set up for a fail.  My view is that your life is a difficult fraught one.  That loss of license would be ruinous to you and that you should be encouraged to continue with your work in pursuing, continuing gainful employment and supporting your family.  Thank you.  We will make it late July.  Thanks.  Thanks very much, Mr Barrington.

53MR BARRINGTON:  As Your Honour pleases.

54HER HONOUR:  Yes, the judicial monitoring will be the 31 July at 9.30, so you need to report into Ballarat by Monday.  Okay?

55OFFENDER:  Yes.

56HER HONOUR:  At least you will - yes, okay.

57MR IRWIN:  That's by video, isn't it, Your Honour, the 31 July?

58HER HONOUR:  It will be by video link.  Yes.  You do not have to come trouping back to Melbourne each time.  All right.  Now, they probably will not - given your current situation, the drugs and alcohol situation probably will not last for very long.  They have got a standard four session drug program that they have.  If you are not using and if you are drinking is all right, that probably will not last long.

59But I really, really, encourage you to pursue the psychological one, okay?  Can I ask you - can you stand up, Mr Davis?  This matter being over, is that going to make any difference to you, how you are going to feel about things? 

60OFFENDER:  I'm not sure.

61HER HONOUR:  Pardon?

62OFFENDER:  I'm not sure.

63HER HONOUR:  Okay.  Fair enough.  All right.  Have a seat, we will just get you to sign that.  Yes, thank you.  You can come out of the dock, Mr Davis.  Yes, thank you.  Counsel are excused.

64MR BARRINGTON:  As the court pleases.

65MR IRWIN:  As Your Honour pleases.

66HER HONOUR:  Good luck, Mr Davis.  I hope it all goes well.  I will see you in July, all right?

67OFFENDER:  Thank you, Your Honour.

68HER HONOUR:  Just - yes, we have just got to get you through these next three years, all right?

69OFFENDER:  Yes.

70HER HONOUR:  You will be okay.  But it is really worthwhile.  This need not be part of the (indistinct) - you really need to find a good psychologist, all right.  Because I mean, you have done really well with your partner and your kids and I mean I think that is fantastic.  But there is obviously something there just sitting on your chest all the time, is there not?

71OFFENDER:  Yeah, I think so.

72HER HONOUR:  Pardon?

73OFFENDER:  I think so, yes.

74HER HONOUR:  Yes, and I know blokes hate therapy, but you know, you are going to have to do it.  That is kind of part of the punishment of the corrections order, Mr Davis, is to go and do it.  All right?

75OFFENDER:  Righto, yes, thanks.

76HER HONOUR:  So, look, good luck with it all and I will see you at the end of July.  And look, if it is not - let me know.  It is really - one of the whole points of judicial monitoring is I do not just - I get a report from them.  It is not just me looking at the report and thinking, "Oh, yes."  I want to know how you are going and if things are not going well with whatever mental health provider you have got at the time, we can look at that and I can talk to corrections and say, "Look, we can try someone else."  All right?

77OFFENDER:  Yep.

78HER HONOUR:  Okay.  So, hopefully - all right.  Look, thank you very much.  Counsel are excused.

79MR BARRINGTON:  As the court pleases.

80MR IRWIN:  Thank you, Your Honour.

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