Director of Public Prosecutions v Scarlett
[2018] VCC 839
•8 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01797
Indictment No: H10551158
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENNETH EDWARD SCARLETT |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 25 May 2018 | |
DATE OF SENTENCE: | 8 June 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Scarlett | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 839 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of common assault, one charge of affray, one charge of causing serious injury recklessly, one charge dangerous driving causing serious injury and one charge handling stolen goods; summary offences involving driving while disqualified, possessing controlled weapons without lawful excuse and possessing prohibited weapon without exemption.
Legislation Cited: Crimes Act 1958, s7 and 319(1A); Criminal Procedure Act 2009; Control of Weapons Act 1990, s5AAA and s6(1); Road Safety Act 1986, s7(1)(a) and s30(1); Sentencing Act 1991
Cases Cited:Munda v Western Australia [2013] 249 CLR 600; Bugmy v R [2013] 249 CLR 571; Phillips v R [2012] VSCA 140; R v Mills [1998] 4 VR 235; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43
Sentence: Total effective sentence five years and ten months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F Skepper | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr M Martoccia | David Barrese & Associates |
HIS HONOUR:
1 Kenneth Edward Scarlett, you have pleaded guilty to the following offences:
Charge 1 – that you, at Melbourne on 23 February 2017, assaulted a person whose name is unknown.
Common assault is contrary to the common law and carries a maximum penalty of five years' imprisonment.
Charge 2 – that you, at Melbourne on 23 February 2017, unlawfully fought and made an affray.
Affray is contrary to the common law and carries a maximum penalty of five years' imprisonment.
Charge 3 – that you, at Melbourne on 23 February 2017, assaulted Rebecca Jackson ("Jackson").
The offence of common assault is contrary to common law and carries the penalty of a maximum of five years' imprisonment.
Charge 4 – that you, at Melbourne on 23 February 2017, without lawful excuse, recklessly caused serious injury to Luigi Spina ("Spina").
The offence of causing serious injury recklessly is contrary to s.17 of the Crimes Act 1958 and carries a maximum penalty of 15 years' imprisonment.
Charge 5 – that you, at Greensborough on 27 February 2017, by driving a motor vehicle into an intersection in contravention of a "stop" sign and in a manner that was dangerous to the public, having regard to all the circumstances of the case, caused serious injury to Salvatore Macaluso ("Macaluso").
The offence of dangerous driving causing injury is contrary to s.319(1A) of the Crimes Act 1958 and carries a maximum penalty of five years' imprisonment.
Charge 6 – that you, at Greensborough on 27 February 2017, dishonestly undertook the retention of stolen goods, namely motor vehicle registration plates, IEY 4RE and YBQ 479, knowing or believing such goods to be stolen.
The offence of handling stolen goods is contrary to s.88(1) of the Crimes Act 1958 and carries a maximum penalty of 15 years' imprisonment.
2 Pursuant to s.145 of the Criminal Procedure Act 2009, the following summary matters were transferred to this court:
Charge 10 – that you, at Greensborough on 27 February 2017, did drive a motor vehicle on a highway, namely Williams Street, during a period of disqualification from obtaining an authorisation to drive a motor vehicle.
Such offence is contrary to s.30(1) of the Road Safety Act 1986 and carries a maximum penalty of 240 penalty points and/or a maximum of two years' imprisonment.
Charge 11 – that you, at Greensborough on 27 February 2017, did use a motor vehicle on a highway, namely Williams Street, as such motor vehicle not being registered as required by part 2 of the Road Safety Act 1986 and not exempt from registration under the regulations.
Such offence is contrary to s.7(1)(a) of the Road Safety Act 1986 and carries a maximum penalty of 50 penalty units (being for a second or subsequent offence).
Charge 16 – that you, at Greensborough on 27 February 2017, did possess a controlled weapon, namely a folding knife, without lawful excuse.
Such offence is contrary to s.6(1) of the Control of Weapons Act 1990 and carries a maximum penalty of 120 penalty points or a maximum of one years' imprisonment.
Charge 17 – that you, at Greensborough on 27 February 2017, did possess a prohibited weapon without exemption under s.8B, or an approval under s.8C of the Control of Weapons Act 1990, namely a knuckle duster.
Such offence is contrary to s.5AA of the Control of Weapons Act 1990 and carries a maximum penalty of 240 penalty units or a maximum of two years' imprisonment.
3 Counsel for the prosecution noted that the offence involving Charge 5 – that is, dangerous driving causing serious injury – is a "serious motor vehicle offence" within the meaning of s.87P(d) of the Sentencing Act 1991. Accordingly, pursuant to s.89(1) of the Sentencing Act 1991, the court must cancel your driving licence for a period of not less than 18 months (see generally s.89(2)(a) of the Act).
4 Furthermore, counsel for the prosecution informed the court that you have been in custody since being arrested on 27 February 2017, and up to but not including the plea date, you have been in custody for 452 days. Initially, you were incarcerated at the MRC and later was transferred to Port Phillip Prison.
5 Counsel also sought orders in relation to the disposal and forfeiture of various items and an order pursuant to s.464ZF of the Crimes Act seeking a forensic sample. Such orders were not ultimately opposed.
The circumstances of the offending
6 The prosecution has provided a document headed "Summary of Prosecution Opening" which provides a written summary of the circumstances surrounding your offending. Such summary has been marked as an exhibit (exhibit 1) and has been accepted by you and your counsel as an appropriate representation of the offending.
7 The important things of such summary are:
·
You are presently twenty-three years of age, having been born on
14 March 1995, and were twenty-one years of age at the time of the subject offending.
·On Friday 24 February 2017, you contacted your ex-girlfriend, Jackson, and organised to meet up with her and a friend later that night in the Melbourne CBD. At some unknown time you also contacted an associate, Brock Wells ("Wells") and you both caught a train into the Melbourne CBD.
·Jackson is twenty-two years old, having been born on 23 March 1995 and was twenty years old at the time of the subject offending.
·At approximately 10.20 pm, Jackson and her friend, Ann-Marie Taylor ("Taylor") arrived at Flinders Street Railway Station where they were met by you and Wells on the Flinders Street steps. The four of you made your way down to Flinders Walk, situated along the north side of the Yarra River, and began walking in a westerly direction towards Crown Casino.
·The group of you decided to sit down for a few moments along Flinders Walk where you made a crude comment about Taylor's appearance, after which Jackson and the upset Taylor got up and walked away. You commenced hurling abuse and demanding that the girls stop. You followed Jackson and Taylor over Sandridge Bridge to the southern side of the Yarra River, with you continuing to pursue the girls along Queensbridge Street along Yarra Promenade towards Crown Casino.
·After Jackson and Taylor managed to make their way into the Crown Casino complex you commenced making multiple harassing phone calls to Jackson. On one occasion, Jackson answered a call from you and you demanded that she come out of the Crown Casino saying, : “Come out of Crown, or I’m going to jail tonight”.
·Crown Casino CCTV cameras captured you walking in a westerly direction along Yarra Promenade along the Crown Casino precinct. Holding a mobile phone up to your face, you continued to yell extremities and abuse in full view of members of the public. You were described by witnesses as extremely agitated and dangerously aggressive. CCTV captured you deliberately bump into two separate people as you walked along or walked past.
CCTV footage taken on 24 February 2017 was tendered (see exhibit 3).
·You then walked directly into an unknown male, bumping him forcibly off his line as he approached from the opposite direction. You were in an agitated state and grabbed onto the male and scuffled with him, saying that the other male was at fault. You then punched the unknown male with your right fist, connecting forcefully on his jaw (see Charge 1 – common assault).
·The unknown male staggered away holding his jaw and you tried to further entice him and initiate some sort of fight. When the unknown victim walked away, you ultimately doubled back and started walking along Yarra Promenade, back towards Queensbridge Street.
·Within approximately one minute you have again walked directly towards a group of four males who were walking towards you from the opposite direction. You walked directly towards one of the unsuspecting males and deliberately bumped into his left shoulder, causing the confused male to be pushed across the footpath - again, you tried to initiate a physical confrontation, taking up a fighting stance towards the male before rolling out a barrage of punches towards him. You threw six punches towards the male, before grabbing hold of him, trying to overpower him in the scuffle (Charge 2 – affray). You were heard saying: "come on, I'll take care of you."
·While grasping onto the male, you reached into the front of your shorts, at which time an item, believed to be a knife, has fallen through your shorts and onto the ground. This male victim, with the assistance of his friends, has managed to pull himself away from your grip and distance themselves from you before walking away. CCTV footage captured you collecting the dropped item from the ground and placing it back into your shorts waistband.
When looking ahead, you then noticed that Jackson and Taylor had exited the Crown complex and were walking towards Queensbridge Street, having decided to go home. They were unaware that you were walking approximately 15 metres behind them. When you noticed Jackson and Taylor, you ran towards them, straight for Jackson and, in particular, you grabbed onto Jackson's hair, causing her to whip backwards.
·Still holding onto Jackson's hair, you viciously threw your arm around her neck, holding her in a headlock as you began yelling abusively in her face while pushing her across the footpath. Unsure exactly what was happening and in a state of shock, Jackson tried to push you away as you continued into an aggressive state in full view of members of the public (Charge 3 – common assault).
·Spina had just finished work at the nearby Gradi Restaurant and was walking in the vicinity with a fellow employee, Paul Rippa ("Rippa"). After observing your behaviour and, in particular, observing your assault of other members of the public, Spina witnessed you assault Jackson. Fearful that Jackson was going to be another victim, and unable to defend herself, Spina ran over, jumping into and kicking you. You immediately let go of Jackson and turned your attention to Spina.
·Crown CCTV footage captured you lift up your jumper and reach to your shorts waistband. Holding an item believed to be a knife, you advanced towards Spina, swinging your arm violently towards him. You then started punching Spina to the face, forcing him backwards against a wall. With nowhere to go and cornered against the wall, Spina grabbed on to you and hoped to push you away, but you grabbed hold of him, and holding Spina with one arm, you jabbed violently into Spina, stabbing him in the left side of his torso (Charge 4 – recklessly causing serious injury).
·Spina began bleeding profusely and, his clothes now soaked in blood, was fearful that he could be set upon and stabbed again by you. Spina, holding the wound together as his internal muscle protruded, ran along Yarra Promenade towards the Crown Towers Hotel entrance for assistance. Spina is 25 years old and was born on 22 July 1992. He is an Italian national, currently working in Australia on a working visa, having arrived in January 2017.
·You continued walking along the Yarra Promenade and as you approached the pedestrian crossing in Queensberry Street, again observed Jackson and Taylor waiting to cross. You stood in front of Jackson and continued yelling in her face before again pulling at her hair. In particular, you said:
"I just stabbed someone. Everything I do I do it for you. I just stabbed someone because of you."
·You then produced a silver-bladed knife and revealed it to Jackson and Taylor, and Taylor noticed that the blade was covered in blood and you then said:
"Yep, I actually got him."
·Jackson and Taylor continued walking to the train station with you continuing to follow them, then walking in circles around them and continuing your verbal "assault". You then turned on your associate, Wells, and began punching him to the face before removing his grey jumper and walking back along Flinders Street, towards the Flinders Street Railway Station.
·Outside the taxi rank in Flinders Street Railway Station you again embroiled yourself in a verbal altercation with three unknown males. You were yelling abuse and trying to engage in another physical confrontation and ran towards the group of males. When running, an object believed to be the knife, fell from your shorts and onto the footpath. You then ran back to the railway station and an unknown male picked up the object and held it above his head as he yelled back towards you.
·Spina, who was 25 years old at the time of the offending (born 22 July 1992), collapsed in the foyer of the Crown Towers Hotel and was treated by Crown staff before being conveyed to the Alfred Hospital in a critical condition. He underwent emergency surgery, where it was revealed that the knife penetrated three centimetres deep, causing a 23-millimetre laceration to his left kidney.
·Spina received three internal stitches and external stitches to the 3 centimetre wound. He also received thirty-two stitches to the front of his chest and stomach following the surgical procedure. He remained in, and was treated at, the Alfred Hospital for ten days and then further treatment as an outpatient over the following week. A book of photographs was tendered (exhibit 2) showing the injuries suffered by Spina.
8 On Saturday, 25 February 2017, investigators identified you and executed a search warrant at your residential address. You were not at your home address, but it was revealed that you were actively avoiding apprehension, and when investigators contacted you by phone, you stated that you refused to hand yourself in, challenging investigators to locate and apprehend you.
9 At approximately 2 pm on 27 February 2017, investigators obtained information that you were at a Cash Converter's store in Greensborough and later seen in a shopping plaza. Thereafter, the following matters occurred:
·At approximately 2.40 pm on 27 February 2017, you exited the Greensborough Plaza car park in a Ford Falcon sedan, driving out of the car park at a fast rate of speed, narrowly missing an unmarked police car upon your exit.
·You continued your dangerous driving along The Circuit, following it around before making a hazardous right turn in the residential area of Lorimer Street.
·As you approached the round-a-bout of Lorimer and Jessup Streets, you stopped driving the vehicle and two males alighted from the vehicle. The two males were arrested at the scene, and identified as Mason Gatherer, eighteen years old, and Lucas Jackson, sixteen years old, after which you continued driving in an eastern direction along Lorimer Street, before making a left-hand turn into William Street, travelling south.
·You then stopped at the intersection of William and Grimshaw Streets, with the latter street being a main thoroughfare, consisting of four lanes of heavy traffic. Investigators in an unmarked police vehicle approached you from behind and advanced towards you. You then, with complete disregard of the safety of others, rapidly and dangerously entered an intersection, colliding with a civilian vehicle that was travelling east along Grimshaw Street (Charge 5 – dangerous driving causing serious injury).
·Your vehicle solidly impacted into the side of a grey 2013 Mercedes van driven by Macaluso, who is forty-five years old, having been born on
21 October 1972. The impact caused all the van's airbags to deploy, causing Macaluso to lose control of the vehicle and come to a stop approximately 100 metres from the point of impact. A book of photographs was tendered (exhibit 4) showing the results of the collision.·Following the collision, you restarted your vehicle and attempted again to drive off before the vehicle again disengaged. Investigators then approached you and removed you from the vehicle and affected the arrest, placing you into custody. A book of photographs was tendered (exhibit 5) showing the objects found in your vehicle.
·As a result of the collision, Macaluso was conveyed to the Box Hill Hospital, where it was revealed that he sustained significant rib, chest and vertebrae injury, and severe soft tissue injuries to his knee, neck and chest. He remained in hospital overnight and spent over fourteen weeks recovering at home. Macaluso also suffered significant psychological trauma as a result of this incident, requiring treatment. His vehicle was "written off."
·At the scene, investigators seized various items form your vehicle, including a pocket knife (Summary Charge 16 – possess controlled weapon without excuse); knuckle dusters (Summary Charge 17 – possess prohibited weapon without exemption); number plates bearing registration IEY 4RE and YBQ 479 (Charge 6 – handling stolen goods).
10 Later it was confirmed that the number plates IEY 4RE, attached to your vehicle, were stolen from an address in Watsonia and that the vehicle registration and your licence were both disqualified by VicRoads (Summary Charges 10 and 11 – drive while disqualified and using unregistered motor vehicle). When interviewed at the Melbourne West Police Station on this same day, you showed no remorse for your actions and made minimal comment during the record of interview, answering "no comment" to most questions put to you.
Victim Impact Statements
11 Counsel for the prosecution tendered the following victim impact statements:
(a) A statement made by Luigi Spina, declared on 24 December 2017;
(b)A statement made by Salvatore Macaluso, declared on
12 December 2017;
(c) A statement made by Rebecca Jackson, declared on 13 February 2017.
12 In his statement, Spina, who is an Italian national who had arrived in Australia in January 2017 on a working visa, states how your offending has affected his life "emotionally, physically, financially and socially." He notes that at the time of your offending he was 25 years old and thought he was "invincible" and that his future was "bright and promising". He states that that has "all changed since this horrific experience."
13 In particular, Spina notes that he still has "disturbing dreams of the incident", he experiences anxiety during the day and is fearful to return to Melbourne where the offence took place, as he no longer feels safe there.
14 Spina also describes that the physical attack on him with the knife resulted in a laceration of his kidney, a third-grade renal laceration, requiring surgical laparotomy to repair the lacerated kidney and intramuscular haematoma, and to ensure that other organs were not punctured. He had thirty-five stitches in his abdomen, which he describes as not pleasant to see and is a constant reminder of your offending. He still experiences pain from the wound and although he needs physical therapy, he cannot financially afford to obtain it. Although certified to return to work about three months after the stabbing and surgery, he did not feel strong enough to return, but commenced anyway because of financial reasons.
15 He has had to require assistance from his family to help defray some of the expenses caused by your offending.
16 He also notes that the offending has impacted on relationships with others as he is not as trusting, although he is determined to overcome this situation.
17 In his statement, Macaluso states that your offending has "emotionally impacted me significantly … and … completely changed my life." In particular, since your offending he has had weekly ongoing medical appointments which have caused both he and his wife undue stress, let alone the considerable pain that he is constantly dealing with.
18 Since the offending, Macaluso has been unable to work and is physically unable to do his job, which he thoroughly enjoyed. He cannot drive as a result of the incident and has developed a state of depression and severe anxiety, and spends many days alone, as his wife now needs to work in order for them to survive financially.
19 He also notes that it is also emotionally stressful, not only because of dealing with the physical pain and trauma, but the effect it has had on his family concerns him greatly. He describes how his wife has been supportive, but he knows that she is doing it "tough" and his children see him in physical pain over time. He states that he and his wife have had to seek counselling for his children through their schools to help comprehend what happened to him and why it happened.
20 Macaluso describes that, as a result of your offending he has suffered injuries involving:
(a) to his left knee requiring surgery;
(b) hairline fractures to his ribs;
(c) a whiplash injury;
(d) and mental trauma.
He has been treated on weekly visits by a psychologist, has regular visits to a local general practitioner and pain specialist for his ongoing pain, and ongoing visits to an orthopaedic surgeon to monitor his recovery from the knee injury. Furthermore, he attends a physiotherapist to try and restore his mobility.
21 Macaluso describes how he has some fears being in a public place, particularly a shopping centre, parks and areas where he is walking close to cars. His social life is restricted in that he is unable to leave the house because of the pain and finds it difficult to have a laugh and go and have fun.
22 The statement was accompanied by a report from the psychiatrist, Dr Kay McQuillan, dated 14 December 2017, who has diagnosed Macaluso to be suffering from post-traumatic stress disorder with associated depressive and anxiety symptoms as a consequence of the collision, which she treated with various medications.
23 In her statement, Jackson, said that she is scared of you and every day tries to block out the night that you met her in the city. In particular, she states that it frightens her to go back to the city and she has not been back there since your offending.
24 Jackson's friendship with Taylor has been affected. She describes how, since the night of your offending, she constantly looks over her shoulder, especially when she is out at the shops or on her own. She is at the point where she feels she needs to move her family into another house where nobody knows where she is.
Your criminal record
25 Counsel for the prosecution also tendered your criminal record (see exhibit 9). Such record is extensive, commencing in May 2010.
26 I will not detail all the offending, but commence from 15 May 2013, at which time you had turned 18 years old some two months earlier.
27 I refer to the following:
(a)On 15 May 2013, at the Heidelberg Magistrates' Court, you were convicted of unlicensed driving, driving whilst disqualified, affray (common law), recklessly causing injury, theft of a motor vehicle, refusal to undergo a breath test, theft from shop (shopsteal), intentionally causing damage to property, unlawful assault, attempted theft, fail to obey "no entry" sign, fail give right signal for long enough, start/drive vehicle make unnecessary noise, drive vehicle causing loss of traction, use indecent language in a public place, use unregistered motor vehicle – highway, own/use unregistered two axle vehicle, use vehicle not compliant with registered standard, exceeding 50 speed limit, robbery, threat to inflict serious injury, attempted robbery, and theft from a shop (shopsteal), for which you were sentenced to an effective total term of nine months' detention in a Youth Justice Centre;
(b)On 23 August 2013, at the Melbourne Magistrates' Court, you were convicted of theft from a shop (shopsteal), intentionally damaging property, attempted robbery, intentionally causing injury, recklessly causing injury, attempted theft of a motor vehicle, criminal damage (intent to damage and destroy), and attempted theft of a motor vehicle, and sentenced to an aggregate period of four months' imprisonment;
(c)On 24 October 2013, at the Melbourne County Court, you were convicted of armed robbery, handling, receiving and disposing of stolen goods, common law assault and wilfully damaging property, for which you were sentenced to 12 months for the armed robbery, three months for the handling of stolen goods, three months for the common law assault and 14 days in relation to the wilful damage, which although not particularly clear, was cumulated in some way with ten months of that sentence concurrent with other sentences imposed on 15 May 2013 and
23 August 2013;
(d)On 20 December 2013, at the Melbourne Magistrates' Court, you were convicted of intentionally damaging property and sentenced to twenty-one days' imprisonment to be served concurrently with any other term of imprisonment;
(e)On 28 July 2014, at the Melbourne Magistrates' Court, you were convicted of criminal damage (intent to damage and destroy) and theft, and sentenced to an aggregate period of two months' imprisonment concurrent with any other sentences;
(f)On 20 July 2015, at Heidelberg Magistrates' Court, you were convicted of contravening a conduct condition of bail, possessing a controlled weapon without excuse, possessing professional graffiti implement, driving while disqualified, theft, obtaining property by deception, and using an unregistered motor vehicle on a highway, and sentenced to 14 days with a declaration that you had already served 20 days, together with a community correction order for twelve months;
(g)On 13 August 2015, at Melbourne Magistrates' Court, you were convicted of theft from a shop, intentionally damaging property and committing an indictable offence whilst on bail and fined an aggregate of $1,000;
(h)On 26 February 2016, at Melbourne Magistrates' Court, you were convicted of recklessly causing injury, possessing a controlled weapon without excuse, affray (common law) and recklessly causing injury and was sentenced to an aggregate of 12 months' imprisonment (with a declaration that 168 days had already been served), and thereafter to a community correction order for eight months. Also on that day it was proven that you had contravened the community correction order, with that order varied to seven months to 19 February 2016.
Your personal circumstances and background
28 Your counsel tendered the following documents:
(a)A document setting out the submissions to be made by him (exhibit B); and
(b)A report of the consultant psychiatrist, Dr Nina Zimmerman, dated
1 May 2018. Dr Zimmerman assessed you on 27 April 2018 at the Port Phillip Prison, where you are on remand.
29 Based on such material and the various submissions made by your counsel, I note the following:
·You were born in Heidelberg, but grew up in Preston, being the oldest of three siblings, with a younger sister, and a younger brother who has mild Autism.
·Your parents separated when you were very young and your mother re-partnered with a violent alcoholic. You informed Dr Zimmerman that the violence was primarily directed towards your mother and that that relationship was of an "on-again-off-again" nature. Your mother did not have much to do with him for many years. You have had no contact with your biological father since you were a teenager.
·You described your mother as "doing the best she can" and that she was always supportive and never accepted that anything was your fault. She would occasionally discipline you physically but this was rare. Your mother and sister, Rachel, attended court for your plea hearing.
·You denied any history of sexual abuse but do recall being bullied at primary school because you were overweight and frequently involved in fights.
·You stated that you learned to read but still struggle with writing but denied having to repeat any grades. In particular, you stated that at about the age of eleven you began running off and not going home, and was expelled from secondary school because of your fighting. After being expelled you spent a period of time at a transitional school where half the day was school and the other half was spent in outdoors activities, and you enjoyed your time there. Further, you were then sent to an alternative school for "troubled kids" in Collingwood and did not enjoy it, and was ultimately expelled in about Year 8 before the completion of the year, again, for fighting.
·Although you have obtained your White Card – enabling access to construction sites – and a food-handling certificate, you have never really held a job, and when asked what sort of work you would like to do in the future, you replied to Dr Zimmerman: "I try not to think about the outside."
You stated that you have been on the Disability Support Pension when you have not been incarcerated because of your diagnosis of “ADHD” and Conduct Disorder.
·After stopping attending school, you were frequently involved with juvenile justice and was detained for various periods.
·Since being on remand, you remain in contact with your mother via telephone calls and you have visits from her and your siblings. You spend your time walking, training and being with your mates. You lost your previous job in the laundry after which you started your new job in a nuts and bolts factory.
·You have completed a course in managing emotions, but you are not doing a brief drug and alcohol course because you had done a lengthier one during a previous period of incarceration and you are waiting to be sentenced so you can commence the lengthier version again.
The report of Dr Zimmerman
30 In her report, Dr Zimmerman noted that when you were in primary school or early secondary school when you were taken to see a paediatrician and diagnosed with ADHD, after which you were placed on medication, but you could not recall whether this was helpful. In any event, you have not had any such medication for many years.
31 Dr Zimmerman obtained a history that you still struggle to concentrate at times, but could concentrate on television as long as the program interested you, and that you enjoyed certain types of music.
32 Again, you told Dr Zimmerman that a general practitioner prescribed a sedating antipsychotic, Quetiapine, prior to this present period of incarceration to help you sleep, but you never have taken such drug.
33 Furthermore, during earlier periods of incarceration, you have been prescribed the mood stabiliser, sodium valproate, but never took this medication because you believed you did not feel you needed to.
34 You did describe to Dr Zimmerman that you have had experiences in the past where you have had paranoid feelings, believing that cars were following you and bushes were concealing people, causing noises and movements. You did state that when experiencing these matters you were generally taking methamphetamines (that is ice), and feel that the ice was the reason for your paranoia. You informed Dr Zimmerman that you first drank alcohol at the age of eleven and drank heavily from the age of fourteen; you would drink most days in the company of friends. You also first tried cannabis at the age of thirteen, and by the age of sixteen you were not drinking that much - rather, you were using drugs instead.
35 You commenced smoking ice at the age of fifteen and you described that ice had been a major problem for you and generally ends up with you getting into trouble. You have tried LSD once, but denied having used Heroin or prescription pills.
36 You hope to stay away from Ice in the future and have also stopped smoking Cannabis because it tended to make you feel paranoid.
37
Dr Zimmerman had available a report from the forensic psychologist, Professor Daffern, dated 24 February 2016, which contained information which
Dr Zimmerman stated was "essentially consistent" with information she obtained from you.
Your account of the subject offending
38 You informed Dr Zimmerman that you had not used much Ice until one month prior to the offending, but then began using heavily again, and you are not sure why this happened. You informed Dr Zimmerman that you smoked Ice the day prior to the offending, but not on the day itself. You had been drinking alcohol on the day.
39 You described that you wanted to get back with your old girlfriend, Jackson, and arranged to meet her and a friend of hers in the city. After an argument, Jackson and her friend left, causing you to become very angry, and you acknowledge that you bumped into people as you approached her and grabbed her.
40 You had no recollection of your assault on the male victim and only realise it occurred when you saw it on Facebook the next day. When rung by police and told to hand yourself in, you told Dr Zimmerman that you were a "smart arse" and decided to evade arrest, during which time you crashed your car and was arrested. In particular, Dr Zimmerman records:
"He stated that he regrets the incident and wishes that he had stayed home that night or that the man he assaulted had knocked him out, because then 'nothing would have happened.' He told me that he would like to see a counsellor to help him understand why the offending happened and to 'make sure there are no more victims.' He reflected on the fact that his actions had impacted on the lives of Bec and the male victim. He said that growing up in Parkville and jails had not helped him to learn appropriate ways of reacting to situations. He said that he frequently couldn't sleep because he lies awake, wondering why he did what he did."
41 You expressed a sense of being too old to continue your life of repeated offending. "After this, I'll be older and smarter." You said that you think you would benefit from a longer period of supervision from Community Corrections, having something to do when you get restless, and would like to complete a course addressing your tendency to react with violence when confronted. You said that you would stay away from Ice because "eventually bad stuff happens when I use Ice."
42 Dr Zimmerman, in her final comments, noted that given your inability to recall the night and, particularly, the offending in detail, it is difficult for her to comment on your mental state at the time, beyond stating that you were intoxicated (with alcohol), and you felt very angry with your prior girlfriend because you felt she was trying to leave you.
43 Dr Zimmerman opined that your intoxication would have led to being significantly disinhibited, impulsive and unable to extend proper judgement at the time of the offending, and notes that you have a lifelong history of anger outbursts, difficulty adhering to rules, and frequent violence that predates substance misuse.
44 When queried about whether a given sentence will weigh more heavily on you than it would on a person of normal health, Dr Zimmerman stated:
"Mr Scarlett is able to recognise that he could use time in prison in order to complete a program assisting him in managing anger and addressing his tendency to resort to violence, thus helping him to avoid further offending. He also indicated that he would take advantage of opportunities to take part in substance abuse programs. He indicated a further desire to take part in counselling that might help him understand why he behaves in the manner that he does. I agree with Mr Scarlett that these will be very useful areas to address. He has resorted to substance misuse and violence since a very young age, having been exposed to such behaviours in his family home. It will require concerted efforts over the long term for him to learn more adaptive ways of functioning. I do not believe that there are specific reasons why Mr Scarlett would be impacted on by a given sentence more than another individual, nor that there is a serious risk that imprisonment would have a significant adverse effect on his mental health."
Mitigating circumstances relied on by your counsel
45 Your counsel commenced his submissions by setting out the circumstances of your upbringing, which clearly did involve exposure to Alcoholism and violence, largely directed to your mother by your stepfather. Moreover, you have been involved yourself in violence for many years, initially causing you to be expelled from a variety of schools.
46 Counsel made reference to the High Court cases of Munda v Western Australia [2013] 249 CLR 600 and Bugmy v R [2013] 249 CLR 571 and initially submitted that the extent of your social disadvantage should be considered in reducing the weight given to general and specific deterrence. Of course, it must be borne in mind that the foundation for such submission depends on an extremely deprived background – which I doubt is the circumstance here – and that, in any event, as the High Court (consisting of French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) stated in Bugmy v R (op cit) at paragraph [44]:
"An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
47 Your counsel ultimately did not rely on these decisions, but did highlight the difficult circumstances of your background.
48 In particular, your counsel did refer to the following matters in mitigation:
(a)That your pleas of guilty in relation to the substantive offences were at the earliest possible time and had the utilitarian effect of saving the court the time and cost of a trial. Reference was made to Phillips v R [2012] VSCA 140 at paragraph [36];
(b)That the plea of guilty and, indeed, the various comments made by you to Dr Zimmerman, can be viewed as expressions of remorse. Your counsel referred to paragraphs [30] and [31] of Dr Zimmerman's report, which I have already recorded, but also refers to Dr Zimmerman's comments at paragraph [40d], wherein she reports:
"… The circumstances Mr Scarlett found himself in were essentially that he was heavily intoxicated and felt that he was being lied to by his ex-girlfriend, causing him great anger. He states now that the offending has caused him regret, including because of his recognition that he has caused harm to both victims.";
(c)Considering that you are only 23 years of age, you should have the potential for rehabilitation and, in this respect, reference was made to the well-known decision of R v Mills [1998] 4 VR 235, wherein it was held that in respect of a youthful offender, rehabilitation is usually far more important than general deterrence because punishment may, in fact, lead to further offending. Furthermore, such decision established that a youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if the offender is beginning to appreciate the effect of his past criminality. In this sense, your counsel submitted that notwithstanding the seriousness of your subject offending, rehabilitation should remain a consideration for the court.
49 Your counsel disclaimed any reliance on any of the so-called principles established in the matter of R v Verdins; Buckley; Vo (2007) 16 VR 269. Ultimately, it was submitted that deterrence and just punishment were appropriate considerations, and also it was accepted that immediate imprisonment should be ordered with a head sentence and a minimum non-parole period. Counsel also submitted, appropriately in my view, that the principle of totality is important in such a case as this, given the number of offences involved.
The response of the prosecution
50 Counsel for the prosecution submitted that the major offences involved are very serious examples of serious offending and the community will see you as a prime candidate for general deterrence. Reference was made to your relevant criminal prior convictions for which you have received various periods of imprisonment or detention.
51 Although the prosecution accepted that the plea of guilty was quite early, such plea must be seen in the context given the amount of evidence against you; given the eye-witness accounts, the CCTV footage and your identification prior to the vehicle collision on 27 February 2017.
52
Counsel described your behaviour on the night of 23 February 2017 as brazen, unwarranted, thuggish behaviour on a busy street, and your offending on
27 February 2017, in circumstances where you were avoiding apprehension.
53 Counsel for the prosecution further submitted that the comments made by you to Dr Zimmerman did not really amount to "remorse" but, rather, "regret" that you had been caught and charged with the various offences. In particular, counsel for the prosecution described your prospects of rehabilitation as "poor".
Conclusion
54 Seemingly, on the night of 23 February 2017, you and your friend, Brock Wells, arranged to meet an old girlfriend of yours, Jackson, and a friend of hers, Taylor, for a social night out in the city. Seemingly, because of what you perceived to be the attitude of your old girlfriend, you became very angry and thereafter committed what can only be described as brazen, serious acts of violence, which were totally unprovoked.
55 I refer to the following:
(a)That in relation to Charge 1 on the indictment – you walked directly and intentionally into an unknown male, bumping him forcibly off his line as he approached from the opposite direction and then grabbed the male, scuffled with him, accusing the other male that it was his fault, after which you punched the unknown male with your right fist, connecting forcibly on his jaw. There is no suggestion whatsoever that you were provoked by anything the unknown male did or said. Even when the unknown male staggered away holding his jaw, you further tried to entice him and initiate some sort of fight;
(b)That in relation to Charge 2 on the indictment – approximately one minute after the punching of the unknown male, you again walked directly towards a group of four males who were walking towards you from the opposite direction. In particular, you walked to one of these males and deliberately bumped him on his left shoulder, forcing that person to cross the path and, again, you tried to initiate a physical confrontation, taking up a fighting stance before rolling out a barrage of punches towards him. You grabbed hold of him and tried to overpower him in a scuffle, during which time you reached into the front of your shorts to obtain what was believed to be a knife. Luckily, the other members of the group pulled your victim away. Again, there was no provocation whatsoever by any action or words spoken by the man you scuffled with. During the affray you were heard saying:
"Come on I'll take care of you."
(c)In relation to Charge 3 on the indictment – when you later saw your former girlfriend, Jackson, and her friend exiting the Crown Casino, you walked behind them before running up and grabbing Jackson's hair, causing her head to whip backwards, after which you "viciously" threw your arm around her neck, holding her in a headlock as you began yelling abusively in her face while pushing her across the footpath in a state of shock. Jackson tried to push you away as you continued in an aggressive state in full view of members of the public. Again, Jackson was only aware of your presence when you grabbed her hair, causing her head to whip backwards and can be in no way seen to have provoked you at that time;
(d)In relation to Charge 4 on the indictment – Spina had only been in Australia since February 2017, was walking in the area where he observed your behaviour and, in particular, the assault on Jackson. Concerned that Jackson was going to be another victim and unable to defend herself, Spina ran over, jumping into and kicking you, causing you to immediately let go of Jackson and turn your attention on him. You withdrew what was believed to be a knife and advanced towards Spina, swinging your arm violently towards him, and when closer, punching him to the face, forcing him backwards against a wall. With nowhere to go and cornered against the wall, Spina grabbed onto you and hoped to push you away, but you grabbed onto him, and holding Spina with one arm, you jabbed violently into Spina, stabbing him in the left side of his torso.
The photos tendered in relation to that injury dramatically demonstrate the incision made by your knife. One only has to read his victim impact statement and understand that your attack of him with the knife resulted in a laceration of his kidney, a third-grade renal laceration requiring surgical laparotomy to repair the lacerated kidney and intramuscular haematoma to ensure that other organs were not punctured. He had thirty-five stitches in his abdomen, which he described as not pleasant to see, and is a constant reminder of your offending (see Photograph Book). He still experiences pain from that wound and although he needs physical therapy he cannot financially afford to obtain it. This good Samaritan has paid dearly for his intervention in your brazen, violent activities.
56 For reasons which are not clear, you then turned on your associate, Wells, and began punching him to the face, which is not a charged act.
57 On Saturday, 25 February 2017, investigators identified you (witness accounts, CCTV footage, et cetera) and contacted you to turn yourself in, prompting you to challenge the investigators to come to locate and apprehend you. In those circumstances, information was obtained at about 2.00 pm on 27 February 2017, that you were at a shopping plaza in Greensborough.
58 In circumstances where you realised that police were waiting to apprehend you, you existed the Greensborough Shopping Plaza, driving out of the car park at a fast speed, narrowly missing an unmarked car upon your exit. You continued your dangerous driving on a main road before entering into Lorimer Street, which is in a residential area. As you approached the round-a-bout at Lorimer and Jessup Streets, you stopped the vehicle and two males alighted from the vehicle, who were ultimately apprehended.
59 You continued driving before making a left-hand turn into Williams Street and then stopped at the intersection of Williams and Grimshaw Streets, the latter being a main thoroughfare consisting of four lanes of heavy traffic. You then, with complete disregard for the safety of others, rapidly and dangerously entered the intersection, ignoring a stop sign, colliding with a civilian vehicle that was travelling east along Grimshaw Street. The vehicle you impacted with was a vehicle driven by Macaluso, causing Macaluso to lose control of the vehicle and ultimately coming to a stop 100 metres from the point of contact. Again, the Book of Photographs tendered showed the results of the collision.
60 Following the collision, you started your vehicle and attempted, again, to drive off before the vehicle again was disengaged. You were then removed from the vehicle, arrested and placed into custody.
61 Macaluso was conveyed to the Box Hill Hospital, where it was revealed he sustained significant rib, chest and vertebrae injury and severe soft tissue injuries to his knee, neck and chest. He remained in hospital overnight and spent over fourteen weeks recovering from home. When one refers to his Victim Impact Statement, it is clear that he has suffered both physically and mentally to a significant degree because of your driving on that day.
62 It must be borne in mind that your driving was not only dangerous, but done in the context of you knowing that you were sought by the police at that time.
63 Subsequent investigations of your vehicle revealed a knife (see Summary Charge 16), knuckle dusters (see Summary Charge 17) and number plates which were ultimately found to be stolen goods (see Charge 6 on the Indictment).
64 Furthermore, the vehicle that you were driving at the time was not registered and your licence had been disqualified by VicRoads (see Summary Charges 10 and 11).
65 When interviewed on the day of your apprehension, you apparently showed no remorse for your actions and made minimal comment during the Record of Interview.
66 I also refer to the Victim Impact Statement of Jackson, who makes plain that she is scared of you and that she has not gone back to the central part of Melbourne since your offending. Her concerns are such that she is giving consideration to moving to another house, where nobody knows where she is.
67 In particular, Charge 4 on the Indictment, recklessly causing injury to Spina, and Charge 5 on the Indictment, involving dangerous driving causing injury to Macaluso, are very serious offences, as is made clear by their respective penalties of a maximum period of 15 years' imprisonment and a maximum penalty of five years' imprisonment.
68 Also, the offending must be seen in the light of your significant previous criminal record, which includes convictions for recklessly causing injury, affray, common law assault, intentionally causing injury and various motor vehicle offences, including drive while disqualified, unlicensed driving and using a vehicle which is not registered. Furthermore, you have prior convictions for possessing a controlled weapon without excuse on at least two occasions. In sentencing you, I do take into account such previous convictions and, in particular, those convictions relating to violence and various driving offences.
69 In mitigation, I do accept that your pleas of guilty to the serious offences at an early time had the utilitarian effect of saving the court the time and cost of a trial, as is made clear by Phillips v R [2012] VSCA 140 at paragraph [36]. In particular, your pleas of guilty to the offending obviated the need for the complainants to give evidence at a trial and to have to relive the circumstances of the offending in a public forum – that is to say, your previous girlfriend, Jackson; the good Samaritan, Spina, and the driver of the other vehicle, Macaluso.
70 It is always a question for the sentencing judge whether remorse or a willingness to facilitate the course of justice and an acceptance of responsibility are to be inferred from a plea of guilty (see again Phillips v R (op cit) at paragraph [96]). I do consider that the evidence against you in this matter was very strong, bearing in mind the CCTV footage, but do accept that your early pleas of guilty is some evidence of remorse. Furthermore, your counsel referred to various comments made by you to the psychiatrist, Dr Zimmerman, which were indicative, so it was submitted, of remorse. Again, I accept that such comments, albeit brief, may well be some evidence of remorse, but essentially, I doubt that you have any real insight of the nature and the extent of your offending.
71 I do note that you have made some efforts in prison to improve yourself, and this is to your credit. Furthermore, apparently you recognise that your time in prison will assist you in taking courses to manage your anger and your tendency to resort to violence, and thus help you to avoid further offending. Apparently, you also informed Dr Zimmerman that you intend to undertake substance-abuse programs when in prison and also seek counselling that might help you understand why you behave in the way you do.
72 Bearing in mind your frightful past record and the nature of the subject offending, I consider your chances of meaningful rehabilitation are "poor."
73 Given your age, your counsel made reference to the well-known decision of R v Mills (op cit), wherein it was held that in respect of a youthful offender –which for the purposes of this sentence I will treat you – rehabilitation is far more important than general deterrence, because punishment may, in fact, lead to further offending.
74 However, as alluded by your counsel, that proposition diminishes with the seriousness of the offending.
75 I also refer to the well-known decision of Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43, wherein at paragraph [38] the Victorian Court of Appeal noted that in the same year as R v Mills (op cit) was decided, the Court of Appeal recognised that there would be cases in which factors such as youth and rehabilitation would take a "back seat" to other sentencing considerations. Paragraph [38] made reference to a number of those decisions.
76 Perhaps the ultimate position is best summarised at paragraph [41] of Azzopardi v R; Baltatzis v R; Gabriel v R (op cit), where the Court of Appeal states:
"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 realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished."
(Footnotes omitted.)
77 Notwithstanding your past offending and, indeed, the severity of the subject offending, I do consider that at the age of 23 there is scope – albeit perhaps limited – for rehabilitation. However, I must stress the nature of your offending is objectively serious in relation to Charges 4 and 5 on the Indictment. Each offence resulted in serious injuries to the victims. In relation to Charge 4, you stabbed a man who was doing no more than bravely trying to stop you assaulting Jackson. In relation to Charge 5, you entered into an intersection in contravention of a "stop" sign in a dangerous manner, seemingly prompted by your desire to evade police. The consequences to Macaluso have been significant.
78 Although I accept the assault, the subject of Charge 1; the affray, the subject of Charge 2 and the assault of Jackson, Charge 3, were relatively short-lived, such attacks were brazen, unprovoked on people – particularly the two unknown victims – who were doing no more than walking in an area frequently used by the public. Indeed, those offences and the offences relating to the pocket knife and the knuckle duster, and driving offences, must also be seen in the context that you have prior convictions for such offending, which, seemingly, has had no impact to deter you from repeating such type of criminal acts.
79 I do consider that deterrence, both specific and general deterrence, denunciation of the crimes, just punishment and protection of the community, are also important in determining an appropriate sentence.
80 Please be upstanding:
(a)In relation to Charge 1 on the Indictment, you are convicted and sentenced to a period of imprisonment of 12 months;
(b)In relation to Charge 2 on the Indictment, you are convicted and sentenced to a period of imprisonment of ten months;
(c)In relation to Charge 3 on the Indictment, you are convicted and sentenced to a period of imprisonment of 12 months;
(d)In relation to Charge 4 on the Indictment, you are convicted and sentenced to a period of imprisonment of three years. This is the base sentence;
(e)In relation to Charge 5 on the Indictment, you are convicted and sentenced to a period of imprisonment for two years;
(f)In relation to Charge 6 on the Indictment, you are convicted and sentenced to a period of imprisonment of three months;
(g)In relation to the uplifted Summary Charge 10, you are convicted and sentenced to a period of imprisonment of three months;
(h)In relation to the uplifted Summary Charge 11, you are convicted and sentenced to a fine of $200;
(i)In relation to the uplifted Summary Charge 16, you are convicted and sentenced to a period of imprisonment of two months;
(k)In relation to the uplifted Summary Charge 17, you are convicted and sentenced to a period of imprisonment of two months.
81
The sentence of three years' imprisonment in relation to Charge 4 will be the base sentence, and I order that five months of the sentence in relation to
Charge 1 on the Indictment; four months of the sentence in relation to
Charge 2 on the Indictment; five months of the sentence in relation to Charge 3 on the Indictment and 16 months of the sentence in relation to Charge 5 on the Indictment and one month of the sentence in relation to Charge 6 on the Indictment; and one month of the sentence imposed in Summary Charge 10, and one month in relation to Summary Charge 16, and one month in relation to Summary Charge 17, be served cumulatively upon each other and upon the sentence imposed in relation to Charge 4. The total effective sentence is five years and ten months.
82 I order that you serve a period of imprisonment of three years and six months before becoming eligible for parole. I declare that you have served up to, not including this day, 466 days in pre-sentence detention and such period should be administratively deducted. I will grant the disposal, forfeiture and forensic sample orders as sought by the prison.
83 Charge 5, that is dangerous driving causing serious injury is a serious motor vehicle offence within s.87P(d) of the Sentencing Act 1991. The Sentencing Act 1991 requires that the court must cancel a driving licence for not less than 18 months. Accordingly, I order pursuant to s.89(1)(a) of the Sentencing Act 1991, that any licence or learner's permit held by you be cancelled and you are disqualified from obtaining a further one for a period of three years from this date.
84 I declare further, pursuant to s.6AAA of the Sentencing Act 1991, that save for your pleas of guilty in relation to the offences on the indictment, I would have sentenced you to eight years imprisonment with a non-parole period of five years and six months.
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85 Now, counsel, I think my arithmetic's are right. Have you checked that.
86 MS SKEPPER: Actually, sorry, Your Honour, I was not able to get it all down.
87 HIS HONOUR: Well, do you want me to read that slowly again?
88 MR MARTOCCIA: Yes please, Your Honour.
89 MS SKEPPER: Yes please.
90
HIS HONOUR: The sentence of three years' imprisonment on Charge 4 will be the base sentence, and I further order that five months of the sentence in relation to Charge 1 on the indictment; four months of the sentence in relation to Charge 2 on the indictment; five months of the sentence in relation to
Charge 3 on the indictment,16 months of the sentence in relation to Charge 5 on the indictment and one month of the sentence in relation to Charge 6 on the indictment; and one month of the sentence imposed in Summary Charge 10, and one month in relation to the sentence in relation to Summary Charge 16, and one month in relation to sentence in Summary Charge 17, be served cumulatively upon each other and upon the sentence imposed in relation to Charge 4.
91 Now, if I remember, the base sentence was 36 months and I think the bits and pieces add up to another 34 months.
92 MS SKEPPER: Yes, Your Honour, that does seem right to us.
93 MR MARTOCCIA: That seems correct, Your Honour, yes.
94 HIS HONOUR: Yes, and as I said, a non-parole period of three years six months and a declaration of 466 days.
95 MR MARTOCCIA: Yes, Your Honour.
96 HIS HONOUR: Mr Scarlett, your offending was significant. You altered the life of at least two people in this community through your offending in circumstances where the evidence would suggest there was no provocation whatsoever, and it was brought about by your anger, seemingly about a girlfriend who would not respond to you. I hope for your sake that during this period of incarceration you will be able to attend courses to address those types of issues. Because what I can tell you, your record is frightful for a young man of your age. When you come out of prison, if you have not got that controlled, things will happen again and it will get worse and worse and worse and worse. You have still got a lot of life in front of you. I really sincerely hope you turn your mind to these things because you cannot keep going the way you are going. The community just will not stand for the things you did. You have to be dealt with quite severely because of that. Yes, take the prisoner, thank you. Yes, anything else to raise, counsel?
97 MR MARTOCCIA: No, thank you.
98 MS SKEPPER: No, Your Honour.
99 HIS HONOUR: Yes, very well, we will just adjourn.
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