Director of Public Prosecutions v Scott

[2022] VCC 1290

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised

(Not) Restricted

 Suitable for Publication

CR 22-00388

DIRECTOR OF PUBLIC PROSECUTIONS

v

GENE SCOTT

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2022
DATE OF SENTENCE:	11 August 2022
CASE MAY BE CITED AS:	DPP v Scott
MEDIUM NEUTRAL CITATION:	[2022] VCC 1290

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Burglary – Theft – Attempted burglary – Attempted home

invasion

Legislation Cited:           Sentencing Act 1991 (Vic)

Sentence:  Convicted and sentenced to a total effective sentence of 4 years

and 10 months imprisonment, with a non – parole period of 3

years.   

Section 6AAA declaration: Conviction and total effective sentence

of 7 years imprisonment with a non-parole period of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Coulson	Office of Public Prosecutions
For the Accused	Ms M. Brown	Stary Norton Halphen

HER HONOUR:

1Gene Scott, you have pleaded guilty to five offences, all committed in the afternoon of Monday 30 August 2021.

2The first offence was committed in Stoneleigh Circuit, Williams Landing.  Between 2 pm and 4.15 pm you entered the home there with intent to steal (Charge 1). You stole a set of keys for the Nissan X-TRAIL which was parked in the garage, and then stole that vehicle (Charge 2).

3At 4.15 that same afternoon, you parked the stolen X-TRAIL in the drive of a home in Fogarty Street, Williams Landing.  Another man was with you in the vehicle.  You got out and knocked on the front door and waited for over a minute for someone to answer.  When the door was not answered, you jumped over the back fence, into the backyard of the property.  Your co-offender took a jemmy bar out of the X-TRAIL and put it down the front of his pants. 

4You went to the pedestrian door of the garage at the rear of the property, and you kicked it multiple times until you broke through. 

5The female resident of the house had heard the knocking at the front door.  Using the doorbell camera application on her phone, she saw you and your co offender outside, and the X-Trail in the drive. She went downstairs and heard the banging caused by you kicking the door to the garage. She opened the door from the house to the garage and saw your foot come through the hole, you had kicked in the door. She then saw your hand reach through and appeared to try to unlock the door. Charge 3, attempted burglary, relates to this offending.

6The victim of this attempted burglary called out, ‘what are you doing?” and then entered the garage, setting the alarm off.  You heard her and the alarm, and you ran away back to the stolen X-TRAIL.  Your driving of the X-TRAIL on this day gives rise to summary Charge 4, driving whilst disqualified. 

7Charge 4 on the indictment is a charge of attempted home invasion.  The day before this offence, on Sunday 29 August 2021, an associate of yours,
Mr Pollard, had told you about the address, and that there was a substantial amount of valuable property there.  He told you that the person who lived there owed for something he had done to one of Pollard's friends.

8Pollard told you that the items stolen would be yours, and that the thefts would not be reported to the police.  You asked Pollard if you should involve another person, and he told you that you should do what you wanted.  He also told you that you could, 'Fuck him up if you want', referring to the victim of the planned offending.  I note that despite that invitation by Pollard, the charge to which you have pleaded guilty is that you attempted to enter the house to steal, not assault.  Pollard told you to tell the victim why it is happening.

9At 7 pm on Monday 30 August 2021, you and an unknown co-offender jumped the fence into the backyard of the address that Pollard had directed you to in Harkness.  The male and female victims living there walked out onto the patio to see what was going on.  On seeing you and your co-offender, they ran back inside and locked the door.

10You and your associate ran after them and tried to open the door by kicking it multiple times.  One of you called out, 'You owe, you owe'.  You were holding a length of rope, and your co-offender was carrying a large machete.  The female victim called the police.  You and your co-offender decamped, jumping over the side fence. 

11On 8 September 2021, your phone was seized by the police in connection to another matter.  Interrogation of the phone showed the Facebook messages to which I have already referred.  You were arrested in respect to these offences on 15 September 2021.  When you were arrested, you were substance affected and considered by a doctor not to be fit to be interviewed. 

Gravity of Offending

12It was submitted by your counsel that the offending was unsophisticated, inept, and that it reflected your rather nihilistic approach to life at the time.  Whilst you were wearing a hoodie in incidents 2 and 3, you did not otherwise attempt to disguise yourself. 

13On the other hand, the offending in incidents 2 and 3 must have been terrifying for the victims.  In incident 3, your co-offender was carrying a machete.  Furthermore, in respect to incident 3, this was planned offending, carried out for gain, and you had recruited a second person to assist you.  You had time to consider whether to carry out the home invasion, and for reason to prevail.

14The damage caused in incident 1 was not extensive, and the stolen vehicle valued at $45,000 was returned to the owners eventually.

15You were on a CCO at the time of this offending which was aimed at assisting your rehabilitation.  I have not been told what has happened regarding your breaching that CCO, and so I will not treat it as a factor in aggravation, as you may be sentenced for it in future.  That you were on the CCO, your failure to comply with it, and the reasons for that, are part of your personal circumstances, and are also relevant to your prospects of rehabilitation.

Personal Circumstances

16At the time of the offending, you were 42 years old, and you are now 43.  You were born and raised in the Geelong area. 

17Your parents separated when you were around 3, as your mother was a drug addict and incapable of caring for you properly.  Your father eventually took custody of you and raised you with the support of his brother and sister.  Your aunt, Ann, became a mother figure in your life.  She moved in to live with her brother, your father, and you, from when you were four until you were eleven. Your father had his own issues with alcohol, leading to you moving out of his home when you were in your mid-teens. You moved in with your aunt and you stayed living with her until you moved in with your partner.

18You think looking back that you may have had ADHD or ADD, due to your restlessness, but you were never diagnosed or medicated for a condition such as that. You struggled at school, but managed to pass Year 12. Once you had left school, you found work as a truck jockey and then driver. You lost your driver’s license in your 20’s from drink driving.

19Your relationship with your former partner, Lisa, commenced when you were around 18 and continued into your early 30's.  You bought a home together and were paying it off.  You were working at a factory at Lara.  The pressures of work, raising children, and paying off the mortgage proved too much.  You were working long hours and had started drinking too much.  Your relationship with Lisa deteriorated.  You learned that she was having an affair with a friend of yours.

20After you realised that Lisa was having an affair, you attempted suicide.  Once you were discharged from hospital following that attempt, you turned to methylamphetamine, and your mental health declined further.  Your relationship with Lisa ended and you did not have any contact with your daughters, who had no respect or time for you.  More recently, you made an effort to reconnect with your eldest daughter, which did not work out.

21Your first serious offences, three armed robberies, were committed in that context.  You served 6 years in jail from 2012 to 2018.  Once you were realised, your criminal offending continued, with offences of dishonesty and drug possession in particular. In October 2018 you were sentenced for 6 burglaries and 1 attempted burglary. You were again before the court for dishonesty offences in  2019, 2020 including for burglary and attempted burglary.

22You have worked over the last years, but your life has been dominated by drugs.  You were using a significant amount of methylamphetamine, as well as abusing Xanax.  You report that the attempted home invasion was committed based on information provided by Mr Pollard, who was your employer and who owed you money. 

23You are fortunate to still have the support of your father, uncle, and aunt.  All of them describe how your childhood was impacted by your mother's addiction and erratic behaviour.  Up until around 2011, your life was apparently on track.  You were working, you had a partner and three children with her, you had a home that you were paying off.  All of them describe the change in you when that relationship failed, in combination with the death of your grandparents, and lack of contact with your children. Drugs began to control you. You had been a hardworking man, with love for your family, but in the grips of drug addiction, you had become a person your father could barely recognise. Your father wrote to me saying:

'Before taking drugs, Gene was a wonderful and happy father, son, and brother, and a very much respected person amongst family, friends, and peers.  I make no excuses, Your Honour, for his crimes, but I feel that drug problems at present in our communities, cities, and country is out of control.  Gene has lost friends like himself that had died in recent times. 
I have spoken to the parents of a few friends who have lost their sons to drugs and it is heart-wrenching.  One parent told me he would lie in bed each night in fear that there would be a knock on the door by the police telling him his son had died, and it happened.  I also have that fear'.

24Whilst you have been on remand, you contracted COVID-19 and were in isolation from 11 June to 21 June 2022.  When you were found to have
COVID-19, the prescription medication Avanza which you had been taking was ceased and had not been restarted when you were assessed by Mr Cummins in July.

25At the plea, I was informed that you have now started to receive that medication again.  You have also been receiving the medication, Bupranolol, whilst in custody.  Your drug screens in January, February, April, May, and June were all clear of illicit drugs. 

26You have completed a number of courses or programs whilst on remand; Learning For Life, a 24 hour drug and alcohol program, three hour alcohol and other drug and anger reduction program, jobs and careers, “Adapt”, Take Stock A”, and Healthy Living.  It is to your credit that you have made full use of your time at Marngoneet this year to do the courses, and to take steps to address the cause of your drug taking and offending.

27I was also provided with a letter from a forensic caseworker from ACSO.  You are planning on utilising their services to assist you in reintegration into the community when you are released, with transitional supports for alcohol and drug issues, mental health, housing, and work.  It is a positive sign that you are taking realistic steps to assist you with your life upon release. 

28Your counsel told me that your plans for the future consisted of several steps.  

(a)      To  get into residential rehabilitation, and to engage with ACSO. 

(b)     You also said that you want to only contact your daughters once you have established that you are clean and sober for in the range of six to twelve months, so that you can give your daughters real and not empty promises.

29Your counsel submitted that you have insight and a realistic plan to improve your relationships with your daughters, and that this is a powerful incentive for you to address your rehabilitation. 

Mental State

30When you were assessed by Mr Cummins, you presented with moderate depression and with a history which are consistent with a major depressive disorder of moderate severity.  I expect that your time in custody has been more difficult because of your depression, although I hope that the Avanza you are now receiving is assisting you with that. 

Prospects of Rehabilitation

31Mr Cummins assessed you as presenting a moderate-high risk of further violence.  Your main risk factors are abuse of drugs and Xanax, and/or your acute symptoms of depression.

32You do have the support of your father, and uncle, and aunt, which is a positive thing for you.  You have the goal and a plan of keeping clear of drugs and getting your life back on track, so that you can re-establish a connection and relationship with your children.

33This process will be hard but your life and history prior to the breakdown of your family in 2011 should show you that you can do it if you address your mental health and drug addiction.  I do consider that your prospects of rehabilitation are somewhat positive.  But they are wholly contingent on you addressing your addiction and your mental health.

34Specific deterrence, that is deterring you from committing further offences is a real factor in sentencing you.  On the other hand, you do have a plan and hopes for the future.  I am mindful of not imposing a sentence that makes you feel hopeless, or which will diminish your sense of purpose in improving your life upon release.

Factors in Mitigation

35The plea of guilty entitles you to a real discount in the sentences you would otherwise have received.  Your plea of guilty is of real practical benefit to the courts, particularly in the context of the COVID-19 pandemic and its effects on the court.  You entered that plea of guilty at a time when you knew you would face further time in gaol and knowing that custody conditions are worse under COVID.  Your plea has also facilitated the administration of justice.  I accept also that your plea is an indication of remorse for this offending.

36That leads me to the second major factor which is your remorse.  Your uncle and aunt have written that you are ashamed of your actions and that you have disappointed your family.  You told Mr Cummins, who assessed you for the plea, that you regretted the offending, although you said at the time you were desperate, and had lost all hope for yourself, and you needed the money that your employer owed you. I accept that you are remorseful for your actions, and the effect on your family but I am not sure that you have any real insight into the effects of the offending on your victims.

37The next factor in mitigation is totality.  I take into account in formulating the orders for a cumulation, that all of the offences for which I am sentencing you occurred between 2.30 and 7pm on the one day.  Whilst each is a separate offence and may warrant a degree of cumulation, I take into account that the sentence must reflect the totality of the offending committed on that day.

38I also take into account that on 8 August this year, you received a sentence of two months' imprisonment on charges of burglary and theft, which were committed on 8 September 2021.  That is, not long after these offences. 

39Other relevant factors that I must take into account are general deterrence, just punishment, and denunciation.  The sentences I impose must be seen to condemn your behaviour, and to amount to just punishment.  There must also be an aspect of sentences which act as a deterrent on others who make commit burglaries to make money.

40The sentences will be Charge 1, 14 months; Charge 2, 18 months; Charge 3, 18 months; Charge 4, 42 months, that is, three years six months; summary Charge 4, two months.

41The sentence on Charge 4 is the base.  I direct that four months of the sentence on Charge 1, six months of the sentence on Charge 2, six months of the sentence on Charge 3, be served cumulatively upon each other, and on the sentence on Charge 4.  I note that I have not ordered any cumulation on the summary Charge 4.

42This results in a total effective sentence of 58 months, which is 4 years and
10 months.  I set a non-parole period of three years.

43Pursuant to s6AAA of the Sentencing Act I state that had you not pleaded guilty I would have sentenced you to seven years' imprisonment with a non-parole period of five years.

44I declare and direct that it be entered into the records of the court that you have served 328 days by way of pre-sentence detention.

45I will not make another order on your driver's license.  In view of the further time in custody under my sentences, such an order would have no utility.  Even if you were to be released, keeping you disqualified from driving for longer would in my view only impair your prospects of rehabilitation.

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