Director of Public Prosecutions v Scorgie
[2023] VCC 1743
•26 September 2023
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02638
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TAMARA SCORGIE |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2023 | |
DATE OF SENTENCE: | 26 September 2023 | |
CASE MAY BE CITED AS: | DPP v Scorgie | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1743 | |
REASONS FOR SENTENCE
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Subject:Sentence
Catchwords: Guilty plea – cause injury intentionally – assault emergency services worker – evidence of rehabilitation – five months of pre-sentence detention – combined sentence of imprisonment and community correction order.
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342.
Sentence: 147 days imprisonment and a CCO for 18 months
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APPEARANCES: | Counsel | Solicitors |
| Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
| For the Offender | Mr S. Kenny | Marshall Jovanovska Ralph |
HIS HONOUR:
1Tamara Scorgie, you have pleaded guilty to one charge of intentionally causing injury and one charge of assaulting an emergency services worker. The maximum penalties are 10 years imprisonment for intentionally causing injury and five years’ imprisonment for assault emergency services worker.
2On 2 September 2020, the victim in this matter, Tyrone Symonds was at Unit 1, 10 Mitchell Crescent Portland visiting his neighbour, Jessica Powell. Mr Symonds lived at Unit 4, 10 Mitchell Crescent. The units were part of a DHHS social housing complex. You lived across the road at 9 Mitchell Crescent.
3At about 5.30 pm, you, Ms Scorgie, entered the unit uninvited and became involved in an argument with Mr Symonds. You believed Mr Symonds owed you money. You were asked to leave by Ms Powell. The debt you believed you were owed related to Mr Symonds having taken some of your Ritalin medication. A physical fight broke out between you and Mr Symonds, and you began to wrestle with each other. During this fight, your sunglasses and Mr Symonds’ mobile phone were broken.
4Whilst this was going on, Ms Powell began live streaming the incident on Facebook with her mobile phone.
5After some time, you went to the kitchen in the unit, opened a drawer and took out a kitchen knife. You said to Symonds 'you’re a dead cunt, you’re a dead cunt'. Symonds replied, 'are you going to stab me, cunt?' You then stabbed Mr Symonds once to the left abdomen area, causing a two-centimetre laceration. In stabbing him, you hit an abdominal arterial blood vessel and he began to bleed heavily.
6After the stabbing, another neighbour named Harley Cameron came into the unit and saw Mr Symonds bleeding. A call was made to Triple 0 and, soon after, police and an ambulance arrived to find Mr Symonds on the kitchen floor, bleeding heavily. The knife was seized.
7Mr Symonds was taken to the Portland Hospital and then airlifted to the Royal Melbourne Hospital where he underwent surgery.
8The injury he sustained was life-threatening, and without treatment and surgery, it is likely he would have died from blood loss.
9At approximately 8.15 pm, police arrived at your residence across the road at 9 Mitchell Crescent and you were arrested.
10Senior Constable Michael Vaughan was holding the handcuff chain as you were handcuffed so that a safety and evidence search of you could be conducted by another police officer prior to you being placed in the back of the divisional van You grabbed his little finger and you clenched it in your fist, and then hyper-extended his finger. You refused to release his finger when asked and police forced you against a wall until you did release his finger. You then continued to resist, and you were forced to the ground.
11You were interviewed on 3 December 2020. You said effectively you did not know Mr Symonds had been injured.
12There is no victim impact statement in this matter. Mr Symonds says he has little or no recollection of the incident and indicated he does not want to make a victim impact statement. The police officer has recovered from the injury to his little finger.
13You pleaded guilty in this matter on the first day this trial was listed last week. You had previously applied for a sentence indication. The outcome of that process, although the judge indicated a prison sentence, seems a little unclear based on what your counsel Mr Kenny told me, but in any case, I take the view it is not a matter to which I can have regard.
14This is not an early guilty plea; however, I accept your guilty plea indicates a willingness to facilitate the course of justice. I am not satisfied it indicates any real remorse particularly considering the CCO Assessment Report which describes you as minimising the offending; and having regard to the lateness of your plea. The utilitarian value of your plea is limited given its lateness, but it did allow the court to proceed and deal with another trial in the circuit. It has spared the prosecution and the court the resources involved in conducting a trial. It has also spared the witnesses the experience of having to relive this event by giving evidence in a trial. For all those reasons, your guilty plea is significant. I also apply the principles in the case of Worboyes v The Queen.[1] You must receive a significant sentencing discount for your guilty plea.
[1] Worboyes v The Queen[2021] VSCA 169
15You are now 44 years old. You have a criminal history. However, you have no prior convictions for any offences of assault and therefore your criminal history is of limited significance to sentencing in this case. You do not have the benefit of an unblemished history, but I do not regard your criminal history as requiring any additional weight to be given to specific deterrence or unduly affecting the assessment of your prospects of rehabilitation.
16Your personal circumstances are set out in a psychological report from Dr Aaron Cunningham dated 31 August 2022, which was relied on. Mr Kenny, your counsel, also set out your background.
17You were born in Mount Isa. Your mother was an Aboriginal woman. You had no contact with her. You were raised by your father on the Sunshine Coast and in Brisbane. You have no brothers and sisters.
18You were not academically inclined, and you were also bullied at school. You left in Year 9.
19Between the ages of 15 and your early 20s, you worked on fishing trawlers which left from Brisbane and north of Brisbane.
20You had your first child when you were around 21 years old. Your daughter is now 23 years old.
21When your daughter was about two years old you moved to Portland. Eventually, your father also decided to move to Portland. You have another child Jayden, who is now 18 years old. Your daughter and your son both attended court to support you. They both live in Portland.
22I was told that after coming to Portland, occasionally you went back up north to work on fishing trawlers but that was not regular employment.
23Your father is now in poor health, and you support him. You also play a role in looking after your seven-month-old grandchild.
24You were remanded in custody for these offences for almost five months. You were granted bail on 27 April 2021 at the Supreme Court. Since then, you have lived at 6/1 Pile Court in Portland. You live there on your own, but your son, Jayden, moves between your address and that of his father.
25You have been reporting on bail three times a week since April 2021. You have also received drug and alcohol treatment through the local Aboriginal Co‑Op. The organisation you have been seeing is called DWECH. You have not been drinking alcohol in that period. You no longer use cannabis. Your general practitioner has prescribed you Naltrexone and you have been taking that since soon after you were released on bail.
26The intentional injury here, which was a stabbing, was a serious offence. The maximum penalty is 10 years. The injury you inflicted was unambiguously life threatening. Assaulting an Emergency Services worker is also a serious matter. Police should not have to put up with being assaulted when they are discharging their duties on behalf of the community as was the case here.
27The offending itself occurred when you had been drinking. I am told that at the time alcohol was a problem for you. Apparently, Mr Symonds had taken a Ritalin tablet of yours and you were seeking to be paid for that. It was in that context that the two of you began arguing and then physically fighting. Mr Kenny described this as an opportunistic offence involving a single strike which happened in the context of a fight in a drug using milieu.
28However, he conceded the seriousness of the offence given the gravity of the injury sustained by the victim in this case. The use of a knife to the upper body of the victim created the potential for an even more serious outcome than that which occurred in this case. As to your intent, I find that you intended to cause a significant cut to the upper torso, which is an area of the body where the potential for the sort of serious harm that eventuated here is very real. You could easily have caused Mr Symonds’ death. It was fortunate that he was able to receive treatment as quickly as he did.
29However, I do not sentence you on the basis that you intended or foresaw the life endangering injury that the victim in fact sustained.
30Mr Kenny, on your behalf, submitted that a combination sentence of time served with a community correction order was an appropriate penalty. He relied on your guilty plea, your substantial rehabilitation over a lengthy period since the date of the offence evidenced by the absence of offending during that period. Mr Kenny relied on the decision of Boulton v The Queen, where the Court of Appeal said a community correction order might be available even for relatively serious offences previously attracting a medium range sentence of imprisonment.[2] Mr Kenny submitted that the facts of this case fall within that categorisation and even perhaps towards the lower end.
[2] Boulton v The Queen [2014] VSCA 342
31In the case of Boulton, the Court of Appeal said that a sentencing judge should ask the following question:
“Given that a community correction order could be imposed for a period of years with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires a conclusion that imprisonment with all its disadvantages is the only option?”[3]
[3] Boulton v The Queen [2014] VSCA 342 [121]
32The prosecutor submitted that some further period of imprisonment is warranted.
33I ordered an assessment for your suitability for a community corrections order. You are considered a high risk of reoffending based on the Level of Risk Assessment Tool used by Corrections. The conditions recommended are community work, supervision, offending behaviour programs and treatment for drug and alcohol.
34If this was a case involving intentionally or recklessly causing serious injury, in my opinion, I would have no other option other than to impose a further period of imprisonment. Anything less would not be commensurate with the objective gravity of the offending and the need for general deterrence and nor would a period of close to five months sufficiently denounce the offending or represent just punishment.
35However, in this case, the prosecution accept that you did not intend to cause a serious injury and nor did you foresee the probability that a serious injury would occur.
36Whilst this is a serious instance of intentionally causing injury, you have no prior convictions for assault at the age of 44. Furthermore, since this offence occurred, you have demonstrated that a process of rehabilitation has commenced. You have addressed the root cause of the offending, which was your drinking. A community correction order will further assist you in that regard with mandated conditions that you engage in treatment for alcohol problems as directed. The five months you spent in prison was the first time you had been in gaol, and I accept that it had a salutary impact on you which has no doubt motivated the changes you have made to your drinking habits and your lifestyle since you were released. I am satisfied that that period in prison and the bail conditions have operated to deter you from further offending.
37You have not offended again in the time you have been on bail. Your criminal history is sporadic and does not indicate a person who is incapable of rehabilitation. In all the circumstances, I am reasonably optimistic that you will not reoffend. It would be a big step to return you to prison now, years after the offence. If I was to take that step it would be for a comparatively short period of time and in circumstances where you have taken steps to rehabilitate, I cannot see what purpose that would achieve.
38Therefore, in the circumstances of this case, I am satisfied that imprisonment, with all its disadvantages, is not the only option and that a combination sentence of time served, and a community correction order is an appropriate sentence.
39I have formed the view that the almost five-month period you spent in prison combined with an appropriately punitive community correction order satisfies general deterrence, specific deterrence, denunciation and just punishment and best facilitates your ongoing rehabilitation.
40Stand up please, Ms Scorgie.
41On Charges 1 and 2 you are convicted and sentenced to 147 days' imprisonment and a community correction order for 18 months with the following special conditions:
Supervision; 200 hours of community work; treatment programs for drug and alcohol, as directed; and you are also to attend for programs to reduce offending, as directed.
42I will allow all treatment hours to be credited to the unpaid community work.
43I will deduct 147 days pre-sentence detention pursuant to s18 of the Sentencing Act, and I indicate pursuant to s6AAA that but for your guilty plea I would have sentenced you to two years with a minimum of one year.
44Now were there disposal orders? I think there were for the knife.
45MR MOORE: I just didn't catch the length of the CCO, Your Honour.
46HIS HONOUR: Eighteen months.
47MR MOORE: Thank you. Yes, there are.
48HIS HONOUR: Yes, I'll make those orders. Now you've got to agree to that. Do you agree to a community correction order in those terms?
49OFFENDER: Yes.
50HIS HONOUR: All right. There's mandatory terms on every correction order – you can't commit another offence. If you do, you breach the order and you come back before me. Do you follow?
51OFFENDER: Yes.
52HIS HONOUR: You've got to comply with all directions of Corrections, you have to obey all their lawful instructions. You can't leave Victoria without telling Corrections. If you're working, you have to tell Corrections if you change your job. You can't change your address without telling Corrections. And you have to report to Corrections at Warrnambool within 48 hours of this order – so you have to go there, all right?
53OFFENDER: Can I please make it Portland
54HIS HONOUR: I think Warrnambool Corrections is the service, that's what's recommended. Is there an office in Portland, I don't know?
55OFFENDER: I think it's called (indistinct), I was told not to go there for Corrections.
56HIS HONOUR: No, well go to Warrnambool first because that's what the document says, all right, because they're the supervising office. I don't know if there's a sort of satellite office in Portland or not, is there?
57MR MOORE: I don't know either, but she could go today, she could go this afternoon.
58HIS HONOUR: Yes, go this afternoon and if they've got a branch office in Portland it may be you can attend there, but your first port of call is Warrnambool, all right?
59OFFENDER: Yes.
60HIS HONOUR: So go today after this.
61OFFENDER: Yes.
62HIS HONOUR: Now you've got 200 hours community work, you have to do that. I have allowed that any time you spend on the other program conditions can be deducted. I don't know how long that'll be, that will be a matter for Corrections. So you've got to do all those special conditions, supervision for 18 months, all of those things. If you don't do them then you can be in breach. If you breach, you come back before me. One of the options is to cancel this order and go back to the beginning and re-sentence you, and then you would have run out of options at that point. Do you follow?
63OFFENDER: Yes.
64HIS HONOUR: You have to complete this order. Are you prepared to sign that now?
65OFFENDER: Yes.
66HIS HONOUR: All right, I'll get my Associate to bring it to you and after you've signed it, I'll sign it. Mr Moore, I'm not sure we've got any drafts of the – yes, we'll sign the drafts when they come (indistinct).
67MR MOORE: Thank you, Your Honour.
68HIS HONOUR: So, you're now on a community correction order for 18 months with those conditions.
69OFFENDER: Yes.
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