Director of Public Prosecutions v Scott

[2019] VCC 266

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

AT MILDURA
CRIMINAL JURISDICTION

CR 18-01379

DIRECTOR OF PUBLIC PROSECUTIONS

v

CASEY SCOTT

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	8 March 2019
CASE MAY BE CITED AS:	DPP v Scott
MEDIUM NEUTRAL CITATION:	[2019] VCC 266

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Ms G. Connelly

HIS HONOUR: 

1Casey Jade Scott, you have pleaded guilty to one charge of aggravated burglary and one charge of recklessly causing serious injury.  Those crimes carry maximum penalties of 25 years and 15 years, respectively.  You pleaded guilty to a settled indictment and I treat that as pleading at an early opportunity.  You have expressed remorse insofar as the matter is concerned and you must obviously get the utilitarian benefit of that plea of guilty.  You have one prior finding of guilt for affray.  I am not aware of the details of that but it was without conviction in the Magistrates' Court, so it cannot be all that serious.

2Insofar as other mitigatory matters are concerned, there has been a significant delay and it is argued by your counsel that that is the situation where you have endeavoured to rehabilitate.  Obviously I take that into account as well.  This is a situation where, as indicated to counsel for the Crown, the history of it is not concerning but causes difficulties.  The charge of aggravated burglary to which both you and your co-accused have pleaded guilty is one which, on reflection, would have been very, very difficult for the Crown to have made out.

3Your co-accused received a sentence of 299 days for aggravated burglary and intentionally causing injury, which does not include the injury or the damage that you did.  Looking at that in the cold light of day, I think that the sentence that I imposed on him was too pragmatic and I do not really believe that that was the sentence that should have been imposed.  It was done just to simply - he had served that much time and everybody agreed, effectively, let us get it over with.  In retrospect I do not think I should have done that.

4But in any event, you fall to be sentenced on your own particular set of facts and the same arguments apply insofar as the aggravated burglary is concerned, which I will make clear as I summarise the facts.  You and your co-accused were domestic partners at the time of the offences, being together for approximately two months.  You were residing in Merbein with a person called Mr Christopher Irons.  You had a step-child named Letischa Scott.

5There had been a set of circumstances where - it is not Louisa.  Letitia.  Where Letitia had been unable to find accommodation and she was ultimately taken in by Jordan Blaire.  He had been overseas for some time leading up to this.  Letitia and he had difficulties over her not abiding by his house rules and in the end he told her that she would not be able to stay.  That turned into an argument and the Crown's summary, whether it is right or not does not really matter, says that he asked her to collect her possessions once again and leave.  She held sliding glass door open for her - he held it open for her and he had a bag in his hand and she slapped him in the face. 

6He struck her in the face with the bag he was holding.  She then started to assault him.  He grabbed her to calm her down and walked her out of the house.  So, there was obviously some sort of altercation which ended up with an injury to her.  On 2 December 2017, Mr Blaire had been visiting his father throughout the day and returned home late in the afternoon and spoke to Letitia and told her she still needed to move out.  She went around to her friend's house in Merbein and you two had just returned from Adelaide at approximately 5 pm on that day.

7When you returned to the Commercial Street address, she was still there.  You both observed that she had a cut on her nose, a swollen cheek and a black eye.  And as I say, that was the result of an incident and I am not blaming anybody for that.  You asked who had done this and she told you that she had had a fight with Mr Blaire.  You both became angry.  At approximately 8.40 pm you both attended Mr Blaire's residence.  Your co-accused approached the front door and was looking inside.  You apparently went around the back.

8Mr Blaire knew of Mr Burt but had not directly met him.  There had been some correspondence between you and Mr Blaire in the days and weeks prior to all this.  Mr Burt asked Mr Blaire if he could have a talk about Letitia Scott and said that you were waiting in the car.  While outside the house you all discussed what was happening with Letitia and why he was kicking her out.  At one stage Mr Burt tried to punch Mr Blaire to the face but he blocked the punch.  There is no charge for that.  Mr Blaire defused the situation and you all three had cigarettes.

9Mr Burt apparently apologised and after had come inside to talk and grab the belongings.  Mr Burt moved towards the door.  Mr Blaire told him that he had told you that he did not want you in his house and that he would get Letitia's property.  Mr Blaire went inside the house and shut the sliding door behind him.  Some time, and I am not going to make a finding on how long it was that had elapsed. Mr Blaire grabbed some of the bags of Letitia's items, went into the bedroom and grabbed her paperwork.  She did not have much property, so it did not take long.  He heard the sliding door open. 

10Mr Blaire entered the laundry from the bathroom.  You were both in the laundry at that time on his version.  Mr Burt moved back so that Mr Blaire could pick some items up belonging to Letitia and as he bent over Mr Burt punched him to the left temple side of his head.  Mr Blaire then grabbed Burt in a headlock and the two wrestled to the hallway near the front door.  At this point in time, on the material before me, you were pulling Mr Blaire's hair.  That is the end of Mr Burt's involvement in all this and I think that those - their facts indicate the difficulty that the Crown would have had obtaining a conviction for aggravated burglary for either of you.

11But be that as it may, all that does is give added weight to the plea of guilty that has been entered by each of you.  Mr Blaire was on top of your co-accused when you started stabbing him in the back multiple times with a knife.  There were four wounds.  Three were superficial but one penetrated to the point where it caused a pneumothorax, collapsed lung, which involved some days being spent in hospital.  That is an injury which can have varying degrees of seriousness.  In this situation, clearly that length of time in hospital indicated that it was serious and that is the basis upon which you plead to serious injury.

12Being in mind the new definition that has now been in force for a couple of years, despite my personal views to the contrary, that would mean that this injury is towards the lower end of the level of seriousness.  He initially thought he was being punched by you but soon realised he has been stabbed, rolled onto his back with - after him having been on top obviously, with Mr Burt now on top of him.  You tried to stomp Mr Blaire's legs but got Mr Burt and the assaulted continued from there on in.

13There is evidence that you attempted to stab again and, in any event, at one stage, Mr Burt was still pulling Mr Blaire down while you were trying to use the knife.  Eventually Mr Blaire and Mr Burt let each other go.  You told Mr Blaire to stay down or you would stab him again.  He obviously, with a pneumothorax, was not breathing too well.  He was against a wall.  There was some discussion about a phone at that point and I do not need to make findings on that.  However, you said to him, "If you move, I'll stab you".

14Mr Burt who was out of the car was yelling out, "Hurry up", or "Come on" and you before leaving returned, grabbed Mr Blaire by the hair, pushed his head against the wall and said threatening words to him.  You then left.  The importance of those other matters are, whilst they do not aggravate the crime, they negate, to a large extent, the suggestion that your conduct was based on fear.  You have entered the premises with the intention of either assault or
Mr Burt assaulting, which is the basis I sentence you upon and indeed that is what has occurred.

15It was argued on your behalf that - and the plea was entered on the basis that it was in excessive self-defence.  I will sentence on that basis but it is important to understand exactly what excessive self-defence is.  Excessive self-defence occurs when the attack that is made by the person who is defending is out of all proportion to the threat.  What you did by using a knife to stab a man who was merely, in effect, wrestling with your partner, was clearly out of all proportion.  Matters were put that there was choking and things going on.  Well, Mr Blaire did not have a weapon and there were two of you and I think it is clear that it is out of all proportion whatever your motivations might have been.

16It may have been to protect your friend but I reject any suggestion that your actions were based on fear of Mr Blaire.  And leaving the way you left the premises supports that view.  When police investigated clumps of his hair, obviously were located in two sections of the hallway.  The knife that you had used in the stabbing, I accept for these purposes had been obtained at
Mr Blaire's house from the kitchen, however, you did remove that knife afterwards and police found it under your bed when they eventually raided. 

17That is the circumstance of it all.  I do propose to sentence on the basis of excessive self-defence but it has got to be clearly understood that this is not some fine line that you just happened to step over.  This was out of all proportion to what may have been required to protect Mr Burt.  Mr Burt basically started a fight he was losing and that is the overall scenario of it.  I have before me and I have read a couple of times and heard the victim impact statements in this matter.  The damage you have caused to Mr Burt is serious indeed as time has gone by.

18In hospital for a period of time.  He and family now suffer from the psychological difficulties that this sort of attack inspires and those difficulties hopefully will subside but for the present time, will continue.  They obviously play a part in this sentencing process.  As is pointed out all they were trying to do was help your daughter.  Serious offending calls for general and specific deterrence, denunciation and appropriate punishment. A gaol sentence of some description is inevitable.  The Crown position was that a combination sentence was the appropriate sentence. 

19You have already done 160 days.  It then became a question of whether in all these circumstances, bearing in mind the matters personal that I am about to refer to, that any more time should be added on to that.  I have already dealt with the concerns I have about the sentence I imposed upon your co-accused.    I do not regard that as a true parity situation.  I then look to the matters personal to you.  That can be done in fairly simple form.  You took on a step-child at a very early age. 

20And at around about the age of 16 or so began to suffer from mental health issues, panic attacks and the like.  You were brought up by your mother, had a, "Scant", I think is the word your counsel used, relationship with your step-father. You were in one relationship with the father of your second child - your natural child, subjected to, I am told, extreme violence and you have had to get assistance in regard to that.  You were ultimately, however, in Adelaide, able to go to university.  You have got about one year left in a combined Arts, Law Degree, so you are clearly not an unintelligent person.  What had occurred to you was that you discontinued study when you found a family friend dead by suicide.

21I accept that those matters have had a dramatic effect on you and you clearly have anxiety disorder.  You were introduced to ice by your natural daughter's father for whom you wish to care and from that time on you used it to ameliorate anxiety.  It is clear from the material that you were using it far more just than for the occasional lift, as has been described.  I accept on the material before me that you have been abstinent of ice since the offending occurred.

22One aspect of that ice use, insofar as this offending is concerned and which again caused me concern is what Mr Purchers, the psychologist had to say.  Insofar as the offending is concerned, he said:

"Ms Scott does not appear to have had a history of violence or aggression.  One of the significant effects of ice is disinhibition often leading to violence.  It is highly likely that her mood and actions would have been influenced by that drug".

23The next matter that I deal with insofar as you are concerned is, you have - I accept that you have a diagnosis of anxiety disorder, major depressive disorder and longstanding anxiety.  For these purposes I think that the - principles 5 and 6 of Verdins are brought into play and I will come to that again in a moment.  You have on previous occasions been admitted to the mental health unit at Mildura hospital in the two or three years leading up to this offending.  One you were released on bail for this you were put on a CISP program and were to receive psychological counselling in regard to that.

24Your long time GP had retired and at various times since you were released from custody you have not been on medication.  Insofar as your physical health is concerned, you suffer from Scheuermann's disease which is a spinal condition, fibromyalgia, with general muscle stiffness, tightness and anxiety and also a bowel prolapse.  I am told that surgery in respect to that to place in October and that you were to have follow up appointments in April.  That would not seem to be a difficulty insofar as the custody is concerned.

25I cannot quite work out why there has been no follow-up since when it was to be done within eight weeks from my understanding.  But, be that as it may.  Of the 160 days you spent on remand, that being the first time that you had been in custody, you spent 89 days of that in the Murray Unit which is the unit for prisoners assessed as an immediate risk of suicide.  It is quite clear from the material had you had an unusually difficult time in gaol and I accept from the material that you would have an extremely unpleasant time in gaol were to I to sentence you to further imprisonment.

26You also have the concerns for your child being bullied at school and generally having difficulties.  That is your second child whilst you were in custody.  But that is pretty much par for the course for mothers who get themselves locked up.  You have used the time since your release on bail to endeavour to improve yourself.  You have motivation to stay drug-free.  I accept that you have stayed drug-free. You have successfully complied with onerous bail conditions now for a considerable period of time.  As I indicated you were compliant with the CISP program.

27That is a generalised summary of what happened on that night and what has occurred since.  The report of Mr Purchers, and I have taken into account all the other medical matters, just in summary form as I have done there.  There is, done the courses in gaol, you have been endeavouring to improve yourself and I accept that.  Mr Purchers said:

"Ms Scott reported that she'd found the experience of being incarcerated overwhelming.  She said she'd never before lived with such constant fear over the daily anger and violence she witnessed.  She felt that she simply didn't fit into that environment.  I believe that the likelihood of Ms Scott reoffending is small provided she stays of illegal - illicit drugs.  She reported that she herself made the decision to avoid drugs completely and has taken steps to attend counselling.  She is highly motivated to continue being a caring mother to both of her daughters.  Ms Scott's reactions to being incarcerated were just short of catastrophic.  Were she to be incarcerated again, great care would be needed to preserve her mental wellbeing and I recommend that her condition be closely monitored by a psychiatrist".

28At the end of the day I have to balance whether putting you back in gaol for a few months, which is pretty much all I could do in these circumstances, outweighs the effects that that would have upon you.  It is a matter, as I have said about three times now, of concern to me how all this has unfolded.  And I am very conscious of the damage that you have done and my suspicions as to the way in which it all came about.  But I have to sentence you according to the law, not according to suspicion.

29The circumstances are that your rehabilitation would appear to be well underway and the authorities are clear that the court should endeavour to avoid destroying rehabilitation wherever possible.  The risk of you reoffending is described by Mr Purchase as being low and I think that is probably right as long as you stay off drugs.  Balanced against all that, as I said, is the serious nature of what you did.  It may involve a somewhat reluctant exercise of mercy in this situation but I have determined it does not - the situation does not dictate that you have to be returned to custody.

30What I am going to do is place you on what is called a combination sentence.  You will be sentenced to be imprisoned for a period of 160 days and I will direct that that 160 days be reckoned as having been served under this sentence.  What will then occur if you agree, and you should think carefully about this, is that you will be placed, as of in the next two days, on a community corrections order.  You have been assessed as acceptable for a community corrections order and they have recommended a number of conditions that should be applicable.

31They have recommended treatment for drugs and that is what I will do.  Treatment for alcohol and that is what I will do.  Treatment for mental health and that is what I will do.  Supervision and that is what I will do.  They have also said, as was my attitude of community work, I personally was concerned that you would not be able to do it.  Their report says that they have programs by which you can do it.  I will be giving you community work and directing that hours spent on those treatment programs can be deducted from that community work.

32The CCO if you agree to be placed on it will be with conviction which is a serious consequence in itself.  It will be over a period of three years with those conditions and it will involve 300 work hours.  Now, that is the situation.  If you do not want to comply with that, I can sentence on a different basis but I make it very, very clear to you that not putting you back to gaol here, as I say, involves some reluctant mercy.  If you breach this corrections order by violence of any shape or form, there will be no such mercy and I will resentence you on this matter according to what I think probably should have happened from the outset but nevertheless it did not.

33So, got the order there?  All right, that order is made.  6AAA, I will say two with a one.  All right, that is the order that I have made.  Now, you did not travel well in gaol.  If you breach this with any sort of violent offending, you will go back, I can promise you that and it will be for longer than you did last time.  All right, that is your decision.  All right, and you are free to come out of the dock.  PSD, 160 days if I have not done that already.

34MR D'OHERTY:  Did we send up other orders?

35HIS HONOUR:  I think there was a disposal of the knife but I have already signed that I think.

36MR D'OHERTY:  Yes.

37HIS HONOUR:  Yes.

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