Director of Public Prosecutions v Scanlon

[2024] VCC 1531

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR -23-01562

DIRECTOR OF PUBLIC PROSECUTIONS

v

NOAH SCANLON

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JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Latrobe Valley
DATE OF SENTENCE:	20 May 2024
CASE MAY BE CITED AS:	DPP v Scanlon
MEDIUM NEUTRAL CITATION:	[2024] VCC 1531

REASONS FOR SENTENCE

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Subject:  Criminal Law – Sentencing.

Sentence:  60 days imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.J. Moore	Office of Public Prosecutions
For the Offender	Mr A.C.L. Marshall

HER HONOUR: 

1Noah Scanlon, you have pleaded guilty to a single charge of common law assault which carries a maximum penalty of five years' imprisonment.  You have also admitted your prior criminal history.

2The circumstances of your offending are set out in the summary of prosecution opening for plea dated today, 20 May 2024, the accuracy of which you accepted through your counsel.

3Noah Scanlon, you commenced an intimate relationship with Madeline Nielsen[1] in 2022.  You were both then 29.  She lived in Warragul with her two young children.  From the outset the relationship was up and down.  You were possessive, jealous and controlling at times.  The relationship lasted for approximately five or six weeks and culminated in your proposal of marriage to her on Sunday 27 November 2022.  Ms Nielson told you that she would need some time to consider her decision and that she would write you a letter with her reply. 

[1] A pseudonym.

4On Tuesday 29 November 2022, you attended her home at approximately 10 or 10.30 at night.  Her children were in bed asleep.  Ms Nielson allowed you to enter and you followed her to her bedroom.  You began crying and told her that no-one else would love her the way you do.  Having guessed that Ms Nielson would turn down your proposal you told her that she was making the wrong decision.  The ensuing conversation lasted for approximately two and a half hours.  That night you engaged in various sexual activities. 

5On the morning of 30 November 2022, you eventually got off Ms Nielson after having sexual intercourse and went to have a shower in her ensuite.  When you got out of the shower you became aggressive.  You accused Ms Nielson of talking to other men and communicating with other people on her phone.  She told you that she was allowed to talk to other people as you were no longer together.  In response, you grabbed her phone and would not return it.  You threatened to smash it onto the wall and said that if you saw another car at her house or saw her with another person that you would 'bash the shit out of them' or tie them up and put them in your car.  You were screaming as you said this and called her a “ho” and a “cunt”.  Ms Nielson was sitting on her bed.  You then punched the air in her direction and Ms Neilson feared you were going to hit her.

6This conduct constitutes the charge of common law assault.

7She then stood up and tried to get her phone from you but you pushed her onto the bed.  She tried to leave her room but you blocked the door.  You started crying and you said you did not want it to be like this.  You begged her to take the day off work and keep the children home from school.  She declined to do so.

8On 1 December 2022, Ms Nielson made a recorded phone call to you.  During that call you asked why she would not answer the phone and was cutting you off.  She said that she had made her decision, and further, that she was not happy with how you came over the previous night.  You replied, 'I wasn't happy with how it went down either.  I honestly felt fucken shit for you all day, I really have – not shit for me, not sad for me, I really felt shit for me.'

9When confronted about having screamed at Ms Nielson and punched the air in front of her, you replied, 'I know it was, I know – I know I'm not coping and I need to get some fucken serious help.  Like, I'm not coping, it's making me toxic.  It's making me fucken really hurt and mad and I'm trying to push through it.'  You stated that 'I obviously thought things were a lot better than they were last night, like, I was honestly oblivious.  Still this morning I thought, oh, she might take me back.'

10You were arrested later the same morning at your workplace. 

11I note that Ms Nielson observes these proceedings today on the link but has declined to make a victim impact statement.

12You exhibited significant controlling and jealous behaviour in the lead up to this offending.  It is not okay to demand that a person you have just met stop having contact with their friends, even if you are in a relationship with that person.  Nor is it the sign of a healthy and respectful relationship to jealously obsess about whether your partner may have been in contact with other men.  Your decision to propose marriage to Ms Nielson after such a short relationship points to your need to control her absolutely.  Your offending occurred in the context of your inability to take 'no' for an answer. 

13Whilst your choice to use your fists in a manner intending her to fear that you would hit her is not the most serious example of this offence type, given the background circumstances I consider it of low mid-range gravity offending.

14Scant evidence has been tendered to the court to otherwise reduce your moral culpability for this offending.

15You are now aged 30 and living with a family friend in Pakenham.  You work as a contract machine operator on railway projects around Victoria.  You regularly work for three employers.

16Your parents separated when you were a child.  You remain close to your mother who has attended court today to support you.  You are also close to your sister and two brothers and you are the only member of the family who still speaks to your father. 

17Your older sister, Tahaya Scanlon, in her reference dated 19 May 2024, describes that you have expressed regret and a commitment to continual self-improvement.  She described that you have proactively pursued a new career path, seeking training and further education, despite suffering significant mental health challenges along the way.  To further your career opportunities you are presently attending TAFE and undertaking a Certificate 3 in civil construction plant operations.  Once this is completed you intend to commence an occupational health and safety course, followed by a supervision course.  This is admirable progress and you aim to be fully employed once these criminal matters have been finalised.

18Your employer at All Rail Hire, Justin Norton, in his reference dated 19 May 2024, described that you were valued for holding specialised licences and have a calm demeanour in the workplace and have been able to defuse tense situations with members of the public.  You have worked for that agency for two years, stepping up from labourer to a leader. 

19In your spare time you enjoy riding motorbikes with your brothers, attending rodeos and playing the guitar.

20A letter from your doctor at Station Street Clinic dated 19 April 2023 refers to past diagnoses of attention deficit hyperactivity disorder, Bipolar 1, anxiety and confirms that you have previously been referred to a psychologist for counselling.  You state that you intend to re-engage with a psychologist shortly.

21Previously you have abused marijuana which exacerbated your mental health and offending behaviours.

22You pleaded guilty in this matter days before the trial, for this and other more serious charges, were due to commence.  Your plea came at a point after those more serious charges were discontinued.  Whilst not an early plea, you avoided the need for a trial, saved witnesses the stress of giving evidence in court and avoided the use of public resources that would have otherwise been spent conducting a trial.  I take the utilitarian value of your plea of guilty into account.

23Your criminal history is replete with past family violence offending.  You have previously been ordered to complete an anger management program and a men's behaviour change program.  You have been sentenced to imprisonment for unlawful assault in a family violence context in Victoria, and most recently by the Newcastle District Court in 2020 for stalking, intimidation with intent to cause fear, and other offences.

24In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances.  I must balance the interests of the community in denouncing criminal conduct and deterring you and others from engaging in similar offending with the interest the community clearly has in seeking to ensure, as far as is possible, that defendants are rehabilitated and reintegrated into society.  I must impose a sentence which is proportionate to the gravity of the offence considering the circumstances.  The sentence must be no more than is necessary to satisfy those various objectives of sentencing.

25I have also taken into account current sentencing practices for the offence to which you have pleaded guilty.

26Mr Scanlon, you are no longer a young man.  You have been given past opportunities to attend programs to address your offending behaviours.  Your moral culpability remains high and accordingly specific deterrence, together with general deterrence and community protection, remain relevant sentencing considerations.

27The prosecutor, Mr Moore, indicated that the crown would not seek that you be sentenced to a term of imprisonment longer than that which you have already served by way of pre-sentence detention.  Ultimately, the crown submits that a combination sentence is appropriate in all the circumstances.

28Your counsel, Mr Marshall, submits that a financial penalty is sufficient, particularly given the penalty you have received by having this matter hanging over your head for an extended period of time and noting that you have spent nearly four months on remand for this matter.

29Mr Scanlon, given the nature and context of your offending, your high moral culpability and your relatively extensive criminal history for like offences, I have formed the view that no sentence other than one of imprisonment is appropriate to address the relevant sentencing considerations.

30Noah Scanlon, I sentence you as follows:

31On Charge 1 of common law assault you are convicted and sentenced to 60 days' imprisonment.

32Pursuant to s18 of the Sentencing Act the period of 127 days pre-sentence detention, not including today, is hereby declared as having already been served in respect of this sentence.  What that means is that the pre-sentence detention you have already undergone is reckoned as served against the sentence that I have imposed, and I will note for the record that you were held on remand for a period of 127 days, not including today on remand for this matter.  I will order that a declaration be entered into the court records.

33Pursuant to s6AAA of the Sentencing Act, I indicate that had you pleaded not guilty to this offence and been found guilty after trial I would have sentenced you to a term of six months' imprisonment.

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