Director of Public Prosecutions v Scott

[2018] VCC 623

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-17-02507

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW SCOTT

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Shepparton
DATE OF HEARING:	2 May 2018
DATE OF SENTENCE:	3 May 2018
CASE MAY BE CITED AS:	DPP v Scott
MEDIUM NEUTRAL CITATION:	[2018] VCC

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Theft – Common law assault – Causing injury intentionally – False imprisonment – Criminal damage – Make a threat to kill – Sexual assault – Commit indictable offence whilst on bail.

Legislation Cited:     Sentencing Act 1991

Sentence:6 years and 8 months’ imprisonment with a non-parole period of 4 years and 6 months’ imprisonment; 200 days pre-sentence detention; Section 6AAA declaration: 10 years imprisonment with a non-parole period of 7 years’ imprisonment; Summary charges convicted and discharged.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady	Office of Public Prosecutions
For the Accused	Mr C. De Francesco	Cameron Marshall and Associates

HIS HONOUR:

1Matthew Scott, on 2 May 2018 you pleaded guilty to an indictment containing seven charges, being theft, common law assault, causing injury intentionally, false imprisonment, criminal damage, make a threat to kill, and sexual assault (Charges 1-7 respectively).

2You also pleaded guilty to two related summary offences, being Charges 6 and 10, of having committed an indictable offence whilst on bail.

3The maximum penalty for the indictable Charges 1, 3, 4, 5, 6 and 7, is ten years' imprisonment, while the maximum penalty for common law assault (Charge 2) is five years' imprisonment.  The maximum penalty for the related summary offences is three months' imprisonment.

4You admitted an extensive criminal history.  Tendered as Exhibit A and read aloud in court was the summary of prosecution opening on plea.  In short, on 12 April last year you were living with Ms Pankhurst[1] in a caravan at the rear of a property in Mooroopna.  Ms Pankhurst awoke to you smashing the inside of the caravan with an iron bar.  You were completely out of control.

[1] Ms Pankhurst is a pseudonym.

5Together with Ms Pankhurst, you travelled to an address in Shepparton and over the next two days, you questioned Ms Pankhurst repeatedly about the presence of men who had been seen earlier in and around the backyard in which the caravan was located.  Ultimately you accused Ms Pankhurst of infidelity with the victim of Charge 3, Robert McGee.

6You eventually became violent, repeatedly punching Ms Pankhurst to the face (Charge 2).  Ultimately out of fear of further violence, Ms Pankhurst falsely admitted to having had sex with Mr McGee.  You then travelled to Mr McGee's house with Ms Pankhurst as your prisoner, together with another man, Michael Mark.

7You entered Mr McGee's house.  During your assault on Mr McGee, you slashed his face from his right ear to below his mouth with a Stanley knife.  As a result, Mr McGee underwent surgery.  The facial artery was found to be divided and spurting.  The chewing or masseter muscle was divided, the upper outer area of the parotid gland was injured.  As well, Mr McGee had a one to two-centimetre laceration to his left hand.

8Mr McGee has little or no feeling in his right cheek, and approximately five months after the incident, Mr McGee reported that he dribbles while or after drinking. 

9You returned to the address in Shepparton with Ms Pankhurst.  You doubted her confession, and so grabbed Ms Pankhurst and placed a knife on her right index finger and pressed down on it, causing a laceration to her finger. 

10You then went about hacking her hair off with the knife.  While doing this, you repeatedly punched Ms Pankhurst to the face (Charge 2).  In the evening, you took Ms Pankhurst to Mark's residence in Shepparton.  Together with Mark you travelled to the house of the victim of Charges 5 and 6, Mr Brown.  You drove through the gate to Mr Brown's residence.  You attended at Mr Brown's front door, and whilst he stood behind a security door, you accused him of "raping your missus".  You threatened to kill Mr Brown.

11Whilst you did this, Mark stabbed at and penetrated the security door with a knife that he had brought to Mr Brown's home (Charges 5 and 6).  You returned to Mark's home and held Ms Pankhurst prisoner in an upstairs bedroom by jamming the bedroom door shut with two knifes. 

12Unable to leave the room during the night, Ms Pankhurst urinated in her clothing.  When you awoke the next morning, on seeing the wet clothing you alleged against Ms Pankhurst that she had left the room and had sex with Mark.  You forced Ms Pankhurst to undress and conducted a pat-down search on her, touching her upper body and vagina (Charge 7).

13During this exercise, you threatened Ms Pankhurst with a knife, and threatened to kill her.  You also punched her repeatedly.  Ms Pankhurst tried to escape, but was dragged back into Mark's house by you.

14Eventually Ms Pankhurst was allowed to leave, and after a couple of days, she reported the events to the police (Charge 4).  You were arrested and interviewed under caution, and effectively remained mute throughout that process.  You were charged and remanded in custody.  The motor vehicle that you drove was stolen (Charge 1).

15You have spent 200 days by way of presentence detention.  During your period on remand on 26 September, you were sentenced to six months' imprisonment.  I must take this sentence into account in the application of the principle of totality when arriving at an appropriate sentence in your case.

16Tendered as Exhibit B was Ms Pankhurst’s victim impact statement.  She has been profoundly affected by your conduct.  She has become isolated in her community, fearful when out in public, anxious generally, and her sleep is disturbed by nightmares.  Tendered as Exhibit C was a bundle of photographs showing Ms Pankhurst’s injuries.  She suffered a broken nose, two black eyes, a chipped bone and a cut to her foot, as well as swelling, abrasions and bruising to most of her body.  Dr Gwymer, on examination of her, noted 27 separate injuries. 

17You are 38 years of age.  You were raised by your natural mother and stepfather.  You believed that your stepfather was your natural father until you were 18 years.  You have two younger siblings.

18You left school after completing Year 10, and are only semi-literate.  Your criminal record dates back to 1997, when you were 17 years old, and thereafter you regularly appeared in local Magistrates' Courts for dishonesty, driving and offences of violence.

19You met your former wife in 1999, and you were married in 2004.  You have a son born in 2007, and a daughter born in 2010.  Your wife was an influence for good in your life, and your court appearances reduced markedly during the term of your marriage.

20However, in 2010 you were imprisoned for breaching an intensive corrections order, and whilst in prison you were bashed and raped.  You appear not to have recovered from this attack.  You did not seek help to deal with this traumatic event, and returned home to a marriage that soon deteriorated, and ultimately foundered in 2011, because of your behaviour. 

21I was informed that your prior conviction for recklessly causing injury on 10 May 2012 that resulted in a sentence of 12 months' imprisonment was committed against your former wife.

22During the time of comparative happiness with your wife, you maintained employment for a period of five years.  Since the breakdown of your marriage, you have had little or no contact with your children.

23In 2013, you were involved in a serious motor vehicle collision, from which you received serious hip and leg injuries that required six months' hospitalisation and involved lengthy rehabilitation that involved being taught to walk again.

24You have also been the victim of an attack with a machete that hospitalised you for four days, and that involved some 30 stitches across your stomach to repair your wound.

25You have a third child, a daughter born in 2017 after your arrest.  You have seen her a few times whilst you have been imprisoned.  Tendered as Exhibit 2 was the report of Dr David Ball, psychologist, dated 28 March 2016.  Upon examination, there was no evidence of frank mental illness or thought disorder.

26You exhibited symptoms consistent with Post-Traumatic Stress Disorder that Mr Ball attributed to the assault and rape whilst in prison.

27More importantly, upon assessment Mr Ball found that your IQ fell at the first percentile, meaning 99 per cent of the population would perform better than you.  Your intellectual impairment is congenital and not acquired.  You presented to Mr Ball as functionally illiterate, innumerate, and a low-functioning individual with a history of abusing substances and untreated post-traumatic stress disorder.

28In respect to your substance abuse, you told Mr Ball that at the time of your offending, you typically used two grams of methylamphetamine and seven grams of cannabis daily.  Your conduct is redolent of the violent conduct associated with the abuse of methylamphetamine.

29Returning to the issue of your intellectual impairment, this must attract the consideration of the principles set out in Verdins, however Mr Ball does not descend into how it is that your impairment affects you.  There is the additional problem of your substance abuse.  However, to my mind your moral culpability is reduced, and deterrence must be sensibly moderated in your case.

30There is no suggestion that imprisonment would weigh more heavily on you than on others, and it cannot affect your impaired condition, and there is no evidentiary basis, nor was it suggested, that your mental health, namely the post-traumatic stress disorder, would deteriorate whilst in prison.

31As against that, protection of the community must play a role in arriving at a just sentence in your case.  Your offending is a serious example of offending of its kind.  The false imprisonment and protracted assaults upon your victim, as well as the sexual assault upon her, must be met with condign punishment, as must the vicious attack the subject of Charge 3 and the gratuitous threat to the life of Mr Brown.

32Your offending was committed whilst on bail, and this is an aggravating circumstance of your offending.  You are charged with two related summary offences of committing indictable offences whilst on bail, and I must be careful not to doubly punish you in this respect.

33As against that, your plea was an early one, and you are entitled to the benefit that flows to you from that plea, being that it is evidence of remorse and that it is of utilitarian benefit.

34Bearing in mind your antecedents and the conduct which constitutes the instant offending, I regard your prospects of rehabilitation as bleak. 

35Would you please stand?

36Doing the best I can, taking into account the objective circumstances of your offending, and your personal circumstances, I sentence you as follows:

37On Charge 1, theft, six months' imprisonment;

38On Charge 2, common law assault, two years' imprisonment;

39On Charge 3, causing injury intentionally, three years' imprisonment;

40On Charge 4, false imprisonment, three years' imprisonment;

41On Charge 5, criminal damage, six months' imprisonment;

42On Charge 6, making a threat to kill, one year's imprisonment;

43On Charge 7, sexual assault, one year's imprisonment.

44On each of the related summary offences, I convict and discharge you.  I order that one month of the sentence imposed on Charge 1, one year of the sentence imposed on Charge 2, 18 months of the sentence imposed on Charge 3, six months of each of the sentences imposed on Charges 6 and 7, and one month of the sentence imposed on Charge 5, be served cumulatively upon each other and upon Charge 4.

45This results in a total effective sentence of six years and eight months' imprisonment, and I order that you serve four years and six months' imprisonment before you will become eligible for parole.

46I declare that you have spent 200 days by way of presentence detention, not including today. 

47Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to ten year's imprisonment with a non-parole period of seven years' imprisonment. Please be seated.

48MS MAHADY:  As Your Honour pleases.

49HIS HONOUR:  Are there any other matters?

50MS MAHADY:  No Your Honour.

51HIS HONOUR:  You may remove the prisoner.  Ms Mahady, I would like to take this opportunity to thank you very much for your assistance to me throughout the course of this circuit.

52MS MAHADY:  Thank you Your Honour.

53HIS HONOUR:  Sine die.

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