Director of Public Prosecutions v Green-Scott

[2018] VCC 498

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01260

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOMINIC GREEN-SCOTT

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 April 2018
CASE MAY BE CITED AS:	DPP v Green-Scott
MEDIUM NEUTRAL CITATION:	[2018] VCC 498

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	Ms D. Shivakumar
For the Accused	Mr R. Alexander

HIS HONOUR: 

1Dominic Green-Scott, you have pleaded guilty to one charge of aggravated home invasion and one charge of intentionally cause serious injury. 

2You have admitted your criminal history.  It is an extensive one in the Children's Court during the years 2014 to 2016.  It includes convictions for dishonesty, attempted robbery, attempted armed robbery, intentionally cause serious injury, assault, recklessly cause injury, intentionally cause injury, assault with
a weapon.  This is a disturbing history. 

3Your offending here is an escalation in the seriousness of your offending.  It demonstrated to me that your time in the youth justice system has had little benefit for you. 

4Pursuant to s.10AC of the Sentencing Act, aggravated home invasion requires a judge to impose a minimum non-parole sentence of three years, unless I find under s.10A of the Sentencing Act that a special reason exists not to do so.  Sub-s.2 of 10A, Part B:          

"A special reason applies if the person is over the age of 18 years,               but under the age of 21 at the time of the commission of the offence." 

5At the time you were barely 18.  And (2):

"Proves on the balance of probabilities that he has a particular   psycho-social immaturity that has resulted in a substantially   diminished ability to regulate his behaviour, in comparison with the                    norm for persons of that age."

6In support of proving that a special reason exists on the balance of probabilities, Mr Alexander, on your behalf, tendered reports from Dr Aaron Cunningham, psychologist and Dr Matthew Bath, psychologist.  Dr Bath also gave oral evidence.  Upon hearing that evidence, the prosecution conceded that the defence had established on the balance of probabilities, that a special reason existed. 

7I refer to paragraph 37, Part 3 of Dr Bath's report, which reads:

"A detailed assessment of Mr Green-Scott's    interpersonal and    behavioural adjustment, indicated severe dysfunction.  He has   reported experiences of rejection and significant exposure to   violence as a child, has resulted in a negative view of the world   and he has engaged in various impulsive, aggressive and   disinhibited behaviours to mask his own      feelings of sadness and                emptiness.  Mr Green-Scott   clearly lacks the skills necessary to   function effectively in mainstream society."

8Together with his explanation in evidence, I am satisfied that a special reason does exist. 

9Dr Bath explained the meaning of the term "psycho-social immaturity". As is set out in his report, you had a dysfunctional childhood, with frequent exposure to criminal activity, including violence and drugs, from a very young age.  You have a limited education and employment history.  You were diagnosed with ADHD.

10Dr Bath, in evidence, explained the connection between your upbringing and your subsequent criminal behaviour.  I accept his evidence as to this.  However, a finding that a special reason exists, thus the mandatory non-parole period of three years does not apply, does not fetter the application of general sentencing principles to the task of me fixing an appropriate custodial sentence.

11Two victim impact statements were tendered and I have read those and have taken them into account. 

12The facts of the matter are set out in Exhibit 1.  They are not disputed by your counsel.  I will not refer to them in extensive detail, except to say, as I have already mentioned, you were barely 18 at the time of the offending.  You were living in Ballarat at no fixed address.

13You were at a premises as Peel Street North, Ballarat on 28 February 2017 with a number of other young people.  You and your co-offender, Mr McHenry, decided to go to a unit in Ida Street, Black Hill, to purchase cannabis.  A number of the other young people accompanied you. 

14Those premises were occupied by Benjamin Anthony, his girlfriend and her two year old son, who was asleep in the bedroom.  You had a small knife and McHenry had knuckledusters. 

15Upon arrival, Mr Holland and Lewis knocked on the door and Holland asked, "Where's the safe?"  Immediately following this, McHenry charged into the lounge room, with you behind him, both of you yelling at Anthony, "Where's the safe?  Where's the money?"  McHenry was punching the lounge door with his knuckledusters.  Anthony replied, he did not have a safe or cash, at which point McHenry kicked him to the chest and punched him in the head. 

16Anthony responded by kicking back at McHenry, which knocked him into the wall.  Anthony put McHenry into a headlock and pulled him down to the floor.  Anthony was on top of McHenry, attempting to restrain him, when you produced your pocket knife and stabbed him in the back five times.  McHenry got out from underneath Anthony, who was then kicked in the head by one of the three male offenders.  He then lost consciousness. 

17Anthony was conveyed to the Ballarat Base Hospital and had several staples in his back, as a result of being stabbed.  One of the stab wounds resulted in
a Grade 1-2 trauma to his right kidney.  CT scans revealed a collection of blood adjacent to his right kidney.  He also had injuries to his face and body.

18On your behalf, your counsel filed written submissions, tendered various reports and made oral submissions.  Tendered reports from Dr Cunningham,
Dr Anderson, Dr Mihoulides and Dr Bath.  I have taken all this material into account.  In mitigation, he relied on:               

(1) Your plea of guilty;

(2) Your age;

(3) Your background, as is set out in the various      medical reports and               also in his written submissions.  Briefly stated, your father was 15   when you were conceived and died when you were   seven years of                  age.  Your mother had a heroin      addiction problem and at various               stages was in custody.  You and your brother were placed into the                    full-time care of your father, prior to his death.  Following his death,               you were placed in the care of your grandmother and your mother.               She was gaoled in May 2007.  You attended various schools, from                which you were expelled at  a number of them.  You finished up at   UB Tech in Year 10.  You began using drugs at an early age, as is                    set out in the written submissions and various reports,    including cannabis and      methamphetamine and Xanax.  You have
                   a limited education and no work history;

(4) Your counsel submitted that you were affected by alcohol and drugs                at the time of the offending.  That plays little part in mitigation, in my                view; 

(5) You have been remanded in adult custody for a substantial period of                    time; 

(6)  He submitted that I could consider a combined sentence of time    served and a CCO, or you going back to juvenile justice. 
                   Dr Cunningham had the view that it was likely that your exposure to                threat and trauma in the prison environment      would further   aggravate and perpetuate your post-traumatic stress disorder;

(7) Your counsel urged me to consider parity with your co-offender,
                   Mr   McHenry, whom I also sentenced.  I sentenced him to a term of             imprisonment of, I think it was 322 days plus a CCO of two   years, with various conditions.

19In sentencing you, I am required to balance the interests of the community in denouncing criminal conduct and the interests of the community to seek to ensure, as far as possible, offenders are rehabilitated into society.  I express my denunciation of your behaviour. 

20Home invasions are unfortunately all too common and too commonly committed by young people.  You are indeed fortunate that your act of stabbing the victim did not result in life-threatening injuries to him. 

21The basic purpose for which a court may impose a sentence are punishment, general deterrence, that is a sentence to suggest to other offenders, not to commit such offences and specific deterrence, that is to try and get into your mind not to re-offend, denunciation and protection of the community.

22In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victims.  General deterrence is an important sentencing consideration here.  Specific deterrence is just as important, bearing in mind your criminal history.  The protection of the community also is an important factor here. 

23I refer to Dr Bath's report in respect of that, beginning at passages from paragraph 33 onwards.  At paragraph 38 he said:

"From a psychological perspective, it's most    regrettable that
           Mr Green-Scott has persisted with so little with rehabilitation.           In this context, it's all too predictable that his problems have        become severe as his life has progressed." 

24Paragraph 40 he said:

"Without comprehensive integrated and sustained psychological    treatment and supervision, Mr Green-Scott's rehabilitative prospects                    in the community are poor." 

25In sentencing you, I have taken into account:

(1) Your plea of guilty and your full admissions to the police.  Your plea                 of guilty saves the court the time and cost of a jury trial and is an   acceptance of responsibility by you for your      offending and have   been given the appropriate      discount;

(2) Your age.  As I have remarked before, you have      been in the youth                   justice system and clearly that has not been successful.  You have                  now been in adult custody for a period of 408 days.  Your youth has                    troubled me, to the extent that I    have gone back and re-read the                 case of Azzopardi [2011] VSCA 372 and in particular, from paragraphs 34 to 44, which sets out the principles concerning sentencing youthful offenders and I have considered all those matters.

At Paragraph 44, the court said,

"The general propositions which flow from these     authorities, is that                 where the degree of criminality of the offences requires the   sentencing objectives of deterrence, denunciation, just punishment                   and protection of the community to become more prominent in the   sentencing calculus, the weight to be attached to youth is   correspondingly reduced.  As the level of seriousness of the   criminality increases, there will be a corresponding reduction in the            mitigating effects of the    offender's youth, but only in the    circumstances of the gravest criminal offending      and where there is                  no real realistic prospect of      rehabilitation, may the mitigatory   consideration of youth be viewed as all but extinguished."    

But for your age, I would have imposed a higher      sentence than the                    one I am about to;  

(3) I have taken into account your dysfunctional upbringing; 

(4) I have considered the issue of parity with your co-offender,
                   Mr McHenry.  There are substantial     differences between he and    you.  He was not charged with intentionally cause serious injury.    Although on bail at the time of the offences, he had no prior criminal                   history and at his plea, evidence was called from his brother, which                in part, convinced me that he had prospects of rehabilitation which   were very much dependent on him having suitable accommodation.                   His brother   was prepared to offer him that.

26This offending was serious offending.  Because of the seriousness of that offending, despite your age, it is my view that a term of imprisonment should be imposed.  Your criminal history is an appalling one, really and has led me to unfortunately the conclusion that your prospects of rehabilitation are gloomy.  Protection of the community, in my view, is an important sentencing consideration here. 

27Taking into account all of those factors, I sentence you as follows: 

28The charge of aggravated home invasion, I sentence you to a term of imprisonment of three years and six months.

29The charge of intentionally cause serious injury, I sentence you to a term of imprisonment of three months. 

30I direct that 18 months of that sentence be served cumulatively with the aggravated home invasion charge, which is Charge 1, making a total sentence of five years.  I direct that you serve three years before being eligible for parole. 

31I declare, pursuant to s.6AAA of the Sentencing Act, that if you had proceeded to trail and you were convicted, you would have received a sentence at least in the order of eight years, with a non-parole period of six. 

32I declare that the time of 408 days you have already served, to be reckoned as part of the term of imprisonment that I have just imposed.

33Are there any other matters? 

34MS SHIVAKUMAR:  Your Honour, there's just a disposal order.

35HIS HONOUR:  Yes.

36MS SHIVAKUMAR:  In regards to the knife.

37HIS HONOUR:  Do you have any objection to that, Mr Alexander?

38MR ALEXANDER:  No, no objection to that, Your Honour.

39HIS HONOUR:  Thank you.  You can sit down for the moment, thanks,
Mr Green-Scott.

40MR ALEXANDER:  Your Honour, just on Charge 2 again, the sentence for that, intentionally cause serious injury?

41HIS HONOUR:  Three years. 

42MR ALEXANDER:  Is three years?

43HIS HONOUR:  Eighteen months of it cumulative with Charge 1. 

44MR ALEXANDER:  Thank you, Your Honour.

45HIS HONOUR: I make an order, pursuant to s.77(1) of the Confiscation Act for disposal in the terms of the order that I signed. 

46MR ALEXANDER:  And is Your Honour's intention that this be served in an adult prison, is it?

47HIS HONOUR:  Yes.

48MR ALEXANDER:  Yes. 

49HIS HONOUR:  Thank you.  Any other matters I need to attend to?

50MS SHIVAKUMAR:  No, Your Honour.

51MR ALEXANDER:  No, Your Honour.

52HIS HONOUR:  All right.  Take Mr Green-Scott out, thank you. 

53I will come back at 10.30.   

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