Director of Public Prosecutions v Scott

[2020] VCC 1642

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02179

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARRIE SCOTT

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2020
DATE OF SENTENCE:	12 October 2020
CASE MAY BE CITED AS:	DPP v Scott
MEDIUM NEUTRAL CITATION:	[2020] VCC 1642

REASONS FOR SENTENCE
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Subject:  Criminal Law
Catchwords:  Intentionally cause injury; Attempted kidnapping
Legislation Cited:   Sentencing Act 1991 (Vic)

Cases Cited:Bugmy [2013] HCA 37; Honeysett v The Queen [2018] VSCA 214

Sentence:195 days imprisonment and 18 month community corrections order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Harrold	Office of Public Prosecutions
For the Accused	Mr J. Kantor	Camerons Lawyers

HER HONOUR: 

1Garrie Scott, you have pleaded guilty on indictment to charges of attempted kidnapping and intentionally cause injury. These offences occurred in Wangaratta on 20 April 2019.  You did not commit this offending on your own, and co-offenders Ian Jackson, Avni Selman and Sedat Ciftci were also charged as a result of this incident. 

2In sentencing you for these crimes I must have regard to the maximum sentences for each of the offences you have committed.  The charge of attempted kidnapping carries a maximum penalty of 20 years imprisonment and the remaining charge carries a maximum of 10 years imprisonment.

3The circumstances of your offending were set out in a document entitled, 'Summary of Prosecution Opening' dated 28 November 2019.  That document was tendered and Ms Harrold has only just read to the court a summary of that particular document and there is no need for me to repeat it here.  It is a matter of record.

4But it is worth pointing out, to some degree, the impact of your offending on Mr Kelly, your victim.  He was taken to the Wangaratta Hospital by ambulance.  He had multiple fractures including fractures to three ribs and a comminuted nose fracture.  He had air and blood collection in the space between the two membranes covering the left lung, resulting in lung collapse.  He had multiple soft tissue injuries.  He had complication of a lung infection which required antibiotics and he had lung tissue collapse.  He had to have emergency chest drain insertion to treat the lung collapse which was removed after two days.  He required outpatient referrals, investigative imaging and a range of medications.  He, in fact, spent five nights in Intensive Care before being discharged on 25 April 2019.  An expert medical assessment was also part of the Crown opening document. 

5So, it is perhaps trite to say that this is serious offending. 

6I do accept there was no evidence of a pre-conceived plan to injure Mr Kelly; it is part of what unfolded on the day, but such potential must have at least been contemplated.  As you neared the scene, there was four of you sitting in that car, all the way from Shepparton to Wangaratta. 

7I accept the submission that the decision to try and kidnap Mr Kelly was likely to have been spur of the moment and obviously given the charge, was unsuccessful. I do not see the charge of attempted kidnapping at the higher end for an offence of its type. The injury charge is in a different category. 

8You were prepared on that day to travel in company with three co-offenders some distance to discuss the debt that was said to be owed by Mr Kelly to Mr Jackson.  Mr Jackson, at least, must have known Mr Kelly would have been at that address and at that time at which he was actually located by the four of you. Whatever existed between Mr Kelly and Mr Jackson, it was not your issue, you should never have been involved. Four on one automatically placed Mr Kelly at a disadvantage as did the fact that he was clearly caught by surprise and had limited ability to defend himself.  At various stages he was on the ground, whilst being attacked, and was clearly in fear.  Fortunately, there were no weapons involved but the injuries upon him were multiple and could hardly be described as insignificant.  To make it worse, it occurred in broad daylight with others made unfortunate witnesses to the violence. 

9I have had regard to your criminal history.  Your prior criminal history reflects some six court appearances between the years 2011 and 2018. 

10On 18 May 2011, you appeared at the Broadmeadows Magistrates' Court in relation to a range of driving offences.  You were convicted and placed on a community based order for nine months.

11You were fined $300 without conviction by the Heidelberg Magistrates' Court in July 2011 for failing to attend court-ordered counselling.  That tells me family violence has been a problem for you at an early stage. 

12On 20 June 2012, the community based order you had received on 18 May 2011 was the subject of breach proceedings.  You were convicted and sentenced to two months imprisonment.  That sentence was wholly suspended for a period of six months.  You were also the subject of fines.

13On 27 September 2013, you appeared at the Shepparton Magistrates' Court in relation to charges of recklessly cause injury, failing to answer bail and being drunk in a public place.  At that time, you were convicted and sentenced to 15 months imprisonment and that was wholly suspended for a period of 15 months. 

14There was then a five year gap in your offending history.  You next appeared in the Shepparton Magistrates' Court on 21 September 2018 in relation to failing to answer bail and driving offences and you were convicted and fined the amount of $1000.

15On 20 November 2018, you appeared at Shepparton Magistrates' Court - again in relation to driving offences as well as family violence-related offending.  You were convicted and sentenced to two months imprisonment of which 50 days was reckoned as having already been served.  You were also placed on a community corrections order for a period of 12 months.  That would appear to be the first term of imprisonment you were actually required to serve.

16You would have been subject to the community corrections order imposed on 20 November 2018, at the time of the offending which is the subject of the indictment.  Your offending is aggravated by that fact and contravention proceedings are to be finalised on 9 November of this year.

17Now, you are not be punished for your prior offending a second time, but it's relevant to the assessment that I need to undertake as the need for specific deterrence - that is putting you off further offending - protection of the community from your criminal behaviour and denunciation. It is also relevant to assess your prospects for rehabilitation.  I note that you have a limited history for violence and a considerable gap in your offending would indicate that you are capable of complying with community's expectations. 

18Your personal circumstances are also relevant to the sentencing exercise and have been carefully outlined in written submissions and a psychological report tendered on your behalf.

19I will not go through all the details but in terms of your formative years, you were exposed to significant domestic violence committed by your father against your mother.  Your mother was only 16 years of age at the time of your birth and I understand that you are the eldest of three direct siblings.  You have a younger half sister on your mother's side and 10 half-siblings on your father's side. 

20Your parents separated when you were only 4 in circumstances of a severe episode of domestic violence.  You were apparently in witness protection for a period of time as a result and you were exposed to further domestic violence with at least one of your mother's subsequent partners, as well as to drug use and abuse by male parental figures.  As a result of that, there was significant disruption to your schooling and to your location.  You had to move many times.  Having had recourse to the materials tendered and the submissions made I accept that the principles in Bugmy [2013] HCA 37 have some application. That is a decision in which the High Court recognised that the impacts of social disadvantage during an offender's formative years do not necessarily diminish over time.

21You did manage to complete mid-level secondary education and in the main have been able to work consistently, either in a trade, and for a period of three years, with the Aborigines Advancement League. 

22You also became a father at a young age.  Your son Garrie is 14 years of age and lives with your mother.  You have two children, Ariana aged 5 and Arabella aged 4, with your wife Brittany, and you are literally expecting a son any day now.

23You did not come to use drugs extensively until your mid-20s when you came to use the drug ice.  You only have to look at what happened in that period of time to see the ramifications of that drug use.  During that period, you lost your employment.  You did experience the tragic death, by suicide, of a close family member and I understand you were stressed by the impending birth of one of your children.  Your use of drugs has occurred in the context of not dealing with those things, and your relationship with your wife suffered significantly in that context.  That is no surprise.  You chose to avoid issues in your life through an escalation in your drug use and it is in the circumstances of that drug addiction and your associations with your co-offenders that you came to be involved in the offending of April 2019.  That does not excuse the offending.  It just sets out the circumstances in which it occurred.

24As a direct consequence, you were remanded into custody on 20 April 2019 and whilst in that environment appeared to have used your time wisely.  You were able to participate in offending behaviour and employment-related courses and certificates you obtained have been tendered on your behalf. The 195 days you spent on remand represents the longest period of time you have spent in the custodial setting and in my view is capable of acting as both a sanction - that is, a lesson - and a deterrent into the future.  I do accept that if you return to custody at this time it would be during the COVID-19 pandemic when the custodial environment is more restrictive in terms of access to visits and access to rehabilitative programs. 

25On 31 October 2018, you were bailed to enter The Cottage residential rehabilitation facility in Shepparton and you remained there until January of 2020.  A significant amount of material has been tendered from The Cottage in terms of the program it offers and your participation in it. I have certainly heard from you today about what you gained from that particular experience.  I take what you said and the contents of those documents into account.  A letter dated 9 October 2020 authored by the CEO, Maria Hutchison, confirms that during your time at The Cottage you participated on a daily basis. Urine tests conducted produced clean results. 

26You left for medical reasons on 28 January 2020.  Those medical reasons relate to a stroke, which was treated at the Goulburn Valley Base Hospital and then you were released back to family.  I do not have updated information in relation to this, but note that you are required to be reviewed every three months and in my view, that event gives you an additional reason to stay away from drugs.  It is just too risky for you.

27I also received a report authored by Carla Lechner, clinical psychologist, dated 4 April 2020.  She diagnosed you with stimulant use disorder in early remission.  Essentially you had an addiction to the drug ice.  She notes a past history of depression and anxiety relating to the traumatic events of your formative years.  She is of the opinion that you would benefit from ongoing counselling to ensure that you maintain the progress that you have made so far, and she also sees benefit in personal counselling.  I appreciate that can be confronting, to assist you to come to terms with your past trauma. You expressed to her your regret and shame for your offending behaviour and Ms Lechner was of the view that you demonstrate appropriate victim empathy.  You showed insight into the destructive and shameful nature of your offending and she does express concerns that a return to prison would undermine the gains you have made.  I take the contents of her report into account.

28I have had recourse to multiple references tendered on your behalf, including one from your mother, Nolita Halden, your grandmother Dr Esmeralda Bamblett, your uncles Leigh and Gary Saunders, and Irene Morris and Samantha Atkinson of the Aborigines Advancement League.  The referees speak of the respect you have for the elders in your community, your genuine interest in that community and its well-being, as well as your dedication to family. 

29You presently reside with your wife and two young children.  Your relationship is currently under repair, if that is a fair description, and represents a significant motivator for you to remain drug free.  You also hope that your son, Garrie, can be returned to your fulltime care and as I have already mentioned, you have got a new child expected any day now. 

30You have a supportive relationship with your mother and her current partner as well as with your brother and grandmother. 

31In your case, there has been no subsequent convictions or allegations of further offending since April of 2019.  You have remained drug free. This supports the fact that your time at The Cottage has been of assistance to you, as is your current determination to put the events of April 2019 behind you. These observations further support my view that your prospects of rehabilitation, as I assess them today, are good.

32The parity principle demands that any sentence imposed reflect differences in the culpability and personal circumstances of co-offenders and avoids unjustifiable differences in co-offender sentences. 

33Both Avni Selman and Sedat Ciftci have already been sentenced by me for the exact same charges. On 14 August 2020, Mr Ciftci was convicted and sentenced to a community corrections order for a period of 20 months. On 6 May 2020, Mr Selman was convicted and sentenced to 18 months imprisonment and upon release, was required to undertake a community corrections order for a period of 18 months with conditions attached.

34I accept the joint submission that your role in the offending of April 2019 was lesser than that of your co-offenders, Jackson and Selman, but higher than that of Ciftci. Mr Ciftci had no prior criminal history.  The criminal histories of Mr Jackson and Mr Selman were more extensive and more concerning than the one with which you present and you have clear evidence of a rehabilitative pathway since your release on bail. 

35I note also your plea of guilty which occurred at a relatively early stage.  It has utilitarian value and has saved the court the time and expense of contested proceedings.  More importantly, it saved Mr Kelly and the other unfortunate witnesses the need to attend and relive the events of April 2019.  Based on the materials tendered on your behalf, I am satisfied that your plea is one of genuine remorse and those factors will all be taken into account in your favour. 

36Your plea has occurred in the Koori Court.  The Koori Court was established in the County Court in 2008.  Its objective is to ensure greater participation of the Aboriginal community in the sentencing process of the County Court through the role played in that process by the Aboriginal elders and respected persons.  Others, such as family members and supports are able to contribute to what is referred to as the sentencing conversation which is designed to assist the reform of an aboriginal offender through a blend of customary law and English common law. Participation in the process can be more burdensome than appearing in a traditional plea hearing because it is confronting in its nature and there is an inability to hide behind your legal representative. 

37In Honeysett v The Queen [2018] VSCA 214, the Court of Appeal looked at the Koori Court plea process and determined as follows, and I quote:

'In our view, in determining the weight to be attached to an offender's participation in a Koori Court sentencing conversation as a mitigating factor, a sentencing court should consider a range of factors, including:

(1) The fact that participation in the process is a voluntary one, may be confronting to the offender and will likely involve him or her being shamed.  As noted in Morgan, participation in the process may of itself, be rehabilitative. 

(2) The fact that the offender is, rather than ‘hiding behind counsel’, taking the opportunity to personally:

(a) demonstrate his or her remorse for the offending;

(b) demonstrate insight into the reasons for, and the seriousness and effect of, the offending; and

(c) express any intention to reform and how that will be done, including by participation in available rehabilitation programs.

(3) The Court's assessment of the genuineness of the offender's statements during the sentencing conversations, that assessment to take account of all the information before the court. 

'Based on the sentencing court's assessment of the quality and genuineness of the statements made by the offender, it is a matter for the individual judge to assess weight in the circumstances of a particular case.In fixing the sentence, it is the duty of the court to impose just punishment adapted to all the circumstances of the case by reference to the permissible sentencing purposes of general and specific deterrence, any means by which rehabilitation of the offender be facilitated, denunciation of the offending and the need to protect the community.'

38Auntie Michelle Winters and Uncle Joe Day were the respected elders who took part in the sentencing conversations that included you, your brother, your uncles, your mother and your grandmother.  Each of the elders challenged you and you were respectful towards them.  They reminded you of the importance of your community and what it offers you by way of assistance and connection and we were also assisted by Kylie Spencer, the Koori Court officer.

39Each of them emphasised that you need to have a plan for a positive future and quite frankly, to stop using drugs.  I do find your participation in the sentencing conversation to be a genuine one.  Whilst you are only beginning to fully understand the impact of your offending on others besides yourself, you are highly motivated for a different way of life.  Given the supports available to you and, providing you can maintain abstinence from drugs, this is would appear to be an achievable aim.  There was one thing that you said that I disagreed with, and that was that your family are still here despite your wrongdoing and you expect they will stay there.  They just will not if you go down the wrong path.  They will grow tired.  You heard Ms Spencer's own experience. 

40These factors, of course, must be balanced with the fact that your efforts at rehabilitation are to be commended, but still in a relatively early stage and are contingent on you maintaining abstinence from drugs and utilising the supports on offer. Of course, it is necessary to reflect on other relevant sentencing considerations which do include deterrence, denunciation and punishment. 

41The basic purposes for which a court may impose sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  At this stage, I am satisfied that there is less need to give weight to protection of the community, and indeed, that protection can be accommodated by ways that does not involve a return to custody.  In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim. 

42I am also required to balance the interests of the community in denouncing criminal conduct with the interests the community clearly have in seeking to ensure as far as possible that offenders are rehabilitated and are reintegrated into society.

43I take into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case.  I have taken into account the current sentencing practices for the offences to which you have pleaded guilty as well as the principles of totality and proportionality.

44In effect, the joint submission is that the imposition of a term of imprisonment in combination with a community corrections order would adequately reflect all the relevant sentencing considerations, including that of parity to which I have already referred.  Accordingly, I have had you assessed as to your suitability for a corrections order and you have been found suitable. 

45I propose to impose an aggregate sentence as I am satisfied that the offences are founded on the same facts, or form, or are part of, a series of offences of same or similar character.  In doing so, I also bear in mind the principles of totality and proportionality. 

46For the two charges on the indictment, you are convicted and sentenced to 195 days imprisonment which I reckon as having already been served. 

47In addition, you are convicted and placed on a community corrections order of 18 months duration.  That order will contain the requirement that you undertake 150 hours of community work.  I know that is presently very difficult to undertake, but it is an 18 month order. The order will contain the requirement also that you undergo drug treatment and follow referrals made.  You will be supervised by the Office of Corrections and I will also make an order as recommended by Mr Davidson that you be assessed as to your suitability for offence-specific programs - which in your case seem to include anger management.  Fifty hours of the treatment will be offset against the community work condition.  The number of work hours required have been moderated to offset the reality that there are limited community work options whilst the COVID-19 pandemic is still operating.  It was recommended that you submit for judicial monitoring because you have had problems complying with orders in the past.  I do not see that you are in that state now, and quite frankly, you have got enough on your plate without needing to come back in front of me.  With that in mind, you will only come back in front of me if you break the order. 

48In addition to the conditions that I have imposed, there are standard conditions.  Looking at your history, you should be familiar with the standard conditions, but the first and foremost of those is you must not commit any other offence during that 18 month period which could be punished by imprisonment.  You need to report within two working days of your release to the community corrections office in Shepparton.  You will be required to advise your corrections office of any change of address where you are living or working, and you must do so within two clear working days. You must submit for visits as directed and obey all instructions and directions of the Community Corrections officer.  You cannot leave the State of Victoria without their prior permission.

49This order in my view presents you with a chance to change your life in a positive fashion should you choose to take up that opportunity and the supports that should be made available.  As I have said, the order can be breached if you do not comply with it, or if you reoffend whilst it is in place.  If you do, you will come back before me for breaching the order.  I may have to re-sentence you for the original charges and to sentence you for contravening the order. 

50Now I can only place you on that order if you are prepared to sign documents to that effect.  Are you prepared to do that?

51OFFENDER:  Yes, Your Honour.

52HER HONOUR: Okay. Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty.  If not for your pleas of guilty, I would have sentenced you to 24 months with a minimum of 16 months before being eligible for parole.  Ms Harrold, anything I missed?

53MS HARROLD:  No, Your Honour.

54HER HONOUR:  Mr Kantor?

55MR KANTOR:  No, Your Honour.

56HER HONOUR:  Okay.  I will get you to assist Mr Scott with the finalisation of the required documents, if you would be so kind, and Ms Ransom, is it best I stand down temporarily at this stage?

57ASSOCIATE:  (Indistinct).

58HER HONOUR:  Thank you.  I do thank all the participants in today's sentencing conversation.   It was of enormous assistance to me.  I certainly thank Uncle Joe Day and Auntie Michelle Winters.  Their contribution too was of enormous assistance.  As very clearly indicated to Mr Scott, I do not really want to see him again, and I mean that in the nicest possible way. 

59Mr Davidson, thank you for your assistance and assessment in relatively short compass as well, very much appreciated.  Ms Harrold thank you for your assistance.  I will be seeing you shortly in any event as I understand it. 

60MS HARROLD:  Yes, Your Honour.

61MR DAVIDSON:  Your Honour, I have made an appointment for Mr Scott to report to Shepparton Community Corrections office tomorrow at 2 pm. 

62HER HONOUR:  All right. 

63MR DAVIDSON:  If he just rings this number on the order, he will be able to speak to someone there. 

64HER HONOUR:  Okay.  You might have missed that Mr Scott.  Mr Davidson organised for you to be at Shepparton effectively at two o'clock tomorrow at the Office of Corrections.  There is a phone number on the form that you will receive and you will need to contact them in advance.  I appreciate that something else might happen in that time period, and it could reference in the birth of your son, but you do have an obligation to this order. 

65All right, am I standing down very temporarily, or will I ask everybody else to leave and ‑ ‑ ‑ 

66ASSOCIATE:  Yes.

67HER HONOUR:  I will stand down temporarily.  Thank you.

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