Director of Public Prosecutions v Scott

[2017] VCC 1860

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00662

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEIGH SCOTT

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 December 2017
CASE MAY BE CITED AS:	DPP v Scott
MEDIUM NEUTRAL CITATION:	[2017] VCC 1860

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Croxford	Office of Public Prosecutions
For the Accused	Mr G. Porter	Mr M Morgan

HIS HONOUR: 

1Leigh Alexander Scott, you have pleaded guilty to one charge of damaging property, one charge of aggravated burglary and one charge of causing injury intentionally.  Those crimes carry maximum penalties of ten years, 25 years and ten years respectively.

2You are now 34 years of age.  You pleaded guilty at an early reasonable opportunity.  You expressed appropriate remorse and I accept that that is in fact the case.  And you must also, of course, get the utilitarian benefit of that plea of guilty.

3You made significant admissions to the police which in case such as this is of real assistance to the Crown and I take that into account.  You do have a number of prior findings of guilt and convictions, most of which are for effectively street offences but there are three which where, obviously by the reason of the dispositions, minor assaults over that period of time.  In fact, as I see it, none of those assaults, albeit happening on different occasions, carried a conviction. 

4Since this offending occurred you have not, as I understand it, reoffended and I think that in this situation, the personal circumstances of yourself should be done first to indicate the circumstances under which the offending occurred.

5You are now 34 years of age.  You were brought up in a good home. 
You ultimately worked and obviously have a good work record.

6In around about 2010, you were in a relationship with a lady who was clearly drug-addicted.  As I understand it, you yourself had used methamphetamine but in this particular situation, you had a child with her.  Because of her use of narcotics, she left you. It was around about the end of 2012/2013 and you become severely depressed.  The child was taken and placed with an aunt.

7For some four years, you did not work suffering from severe depression as described in the reports of various people including Hanson Psychology which in fact says depression mild to moderate ranges - this is not long after - anxiety in the moderate to extremely severe range and stress in the severe range.

8You had no money, you had no job.  You had been homeless and ended up living in a boarding house in East Melbourne called The Ascot which is known to me.  In that scenario, there are obviously a number of very troubled and very difficult to deal with people.  You were described by the landlord of those premises as a model tenant.

9Subsequent to this offending, you have resided at another boarding house and again, have been described by the landlord of those premises as a model tenant.

10In this particular situation, there was another person within that boarding house; the complainant in this matter, a Mr Rocca.  He, on the material before me and the Crown do not demur from this was a person who intimidated and stood over other residents.  His conduct was obviously very intimidatory to you.

11In circumstances such as this, there is a cumulative effect.  People in your situation have nowhere to go, reporting it to the police would achieve absolutely nothing and you describe having been choked by this man in a stairwell while you were on crutches.  In other circumstances where you cannot leave because you have got nowhere to go other than to become homeless, this could be in a way described as domestic violence.

12In any event, that is the background under which this offending occurred and
I will be referring again to the report Mr Cummins insofar as your psychological state is concerned in a few minutes.

13On 18 December at approximately 1 o'clock in the morning, the complainant was asleep in his room.  You, apparently with another person that you have not divulged the name of, had been drinking and you attended at the complainant's room number 14 to confront him and to endeavour to stop his conduct towards you.  You had expressed remorse subsequently as to what you did and accept that you should not have done it, that is obvious. 

14He woke up to a loud noise, someone banging on his door.  As he was getting up, the door to his room was forced open.  It came off its hinges and frame and split the lock side of the doorframe; that is Charge 1 of criminal damage.

15He saw you and an unknown male, or unknown to him anyway, standing in the doorway.  The unknown male was holding a fire extinguisher.  Both of you were drunk and saying words to effects of "Fuck you cunt" - as I have said, words to that effect.  You threw a dinner plate at him.  That was your weapon of choice in an aggravated burglary and I think it just shows how pathetic this whole situation was.

16You both entered the room.  He fell to the ground and was hit with the fire extinguisher.  That was by the other man though you obviously were fully aware of the existence of the fire extinguisher and have pleaded guilty to it in so far as the aggravated burglary is concerned.

17He was kicked, he was told he was going to be killed and that was part of the assault rather than the aggravated burglary and he was grabbed by the hair and dragged.  The assault stopped when another resident came into the room and separated you and the other male from Rocca.  Mr Rocca, as is not uncommon with bullies, left his room and went and reported the matter to the Richmond Police.

18The door to his room could not be closed.  When police arrived they saw several large circular indentions which was undoubtedly caused by the fire extinguisher.  He suffered a small cut and bruise to his right leg and graze on his right elbow.  He also lost some clumps of hair.  The injury sustained is clearly at the lower end.

19After the events, you went to Queensland and then voluntarily returned.  You were interviewed by police and were cooperative.  You admitted effectively to what you had done and acknowledged that you should not have done it and expressed appropriate remorse.  Not surprisingly, there is no victim impact statement.

20Debate has taken place about the seriousness of this offending in its objective sense.  There has been a lot of authority about aggravated burglaries and each case has to be dealt with in its own - sorry, on its own merits.  I was unaware until yesterday of the decision of Bradshaw, clearly I am aware of the decision in Dalgliesh.  I was also shown a decision yesterday of Meyer.

21The decision of Bradshaw has at the end of it an appendix which lists a significant number of matters where a non-custodial disposition was given. 
I note the words it is not uncommon for such a disposition to be given in an aggravated burglary.

22The reasons for that can be youth, can be prospects of rehabilitation, can be mercy even and that is a matter which I will take into here if I need to.  I then look at the seriousness of your offending in that clinical objective way but also subjectively in the circumstances in which you found yourself.

23It is all very well to say that people should not conduct themselves in a certain way but some members of our society, are in such states where they are bound by poverty, bound by their mental health and are often left with very few, if any, choices.  That does not justify the conduct but puts it into a proper concept when one looks at what is the appropriate punishment and what is in the best interests of the community.

24In a situation such as this, and I indicated quite frankly to the learned prosecutor, I really cannot remember the last time I did a non custodial sentence involving an aggravated burglary.  So whilst it is not uncommon, it is certainly not usual.  The normal disposition would be either gaol or gaol plus a community corrections order or a community corrections order. 

25I have read the reports and the materials provided and clearly this is a situation where I do have to regard it as serious and that is what Boulton's is all about.  But I also have to look at general and specific deterrence.  So what effect general deterrence has in this sort of social scenario is beyond my comprehension.  There must be appropriate punishment. 

26Your background is essentially, as I have outlined it, up until the time of your losing your partner and your child, you had done pretty well.  As I said, you do have prior convictions and it was interesting to note that the two Victorian prior convictions for violence both occurred after the traumatic incidents that gave rise to your depression and stress and the matters I have already referred to.

27I do not think I need to go into your childhood or anything along those lines.  There is a report from Hanson Psychology that says - describes you as reportedly experiencing two major traumatic events in 2013 and they are the events I have described and that psychologist said they appear to have impacted greatly on your mental health.

28And at that time, as I have indicated, there was mild to moderate depression, moderate to extremely severe anxiety and severe stress.  You have been receiving ongoing treatment and have had counselling on a number of occasions. 

29The author of that report, a Deborah Hanson, says that you appear to be trusted by your landlord, points out that you have reduced your alcohol consumption considerably and haven't used marijuana for a long time, that you are doing an online retail course and study in the Oakleigh Library, that you are looking for work and indeed as I understand it today you do have work as a labourer and the potential of working in a restaurant in Geelong in a few weeks' time.

30You have indicated to her that you would like to undertake further study and to get on with your life.  She says towards the end of the report "Leigh's mental health appears to be improving with recent screening indicating symptoms of depression are currently experience in the normal range; symptoms of anxiety in the moderate range and symptoms of stress in the normal range". 

31It is quite clear that you are motivated to improving your everyday life and it is quite clear that the treatment you have received so far has assisted greatly in rehabilitating you and alleviating the mental difficulties that were oppressing you at the time you committed these offences. 

32The report from Mr Cummins describes the background that I have given, that you assaulted Rocca against a background where you felt intimidated, where other residents had indicated that they too felt threatened and stood over by Mr Rocca.  You said to Mr Cummins, and I have no doubt this is true, "I still have flashbacks of doors being kicked in at Ascot Lodge.  Rocca was a heavy.  Yes, I entered his room in the company of someone else.  I think at the time I wanted to teach Rocca a lesson but I know I went about it in completely the wrong way".

33You also pointed out to him the matters I have raised about losing your partner and losing the child.  You have a great fear of incarceration as indicated in those reports and I accept that.  You have been previously diagnosed as having an adjustment disorder or a post-traumatic stress disorder and at the time of this offending, you were clearly distressed and depressed.

34I am not going to go into trying to define exactly what are your mental difficulties, it is sufficient to say that because of your experiences in the past in December 2016, you were a mess living in very very unfortunate circumstances and you simply took the wrong, if there was the assumption of some other option open to you, course in trying to alleviate them.

35Mr Cummins, who is a very experienced psychologist, says "I would expect his mental health would inevitably deteriorate if he was now incarcerated.  He presents as being at least moderately depressed and does have a documented history of suffering from depression.  As indicated above, he is petrified that if he is incarcerated he will be assaulted" - I am not quite quoting correctly - "by other prisoners".  He says how you would benefit from receiving mental health treatment.

36That is the combination of factors that give rise to this sentencing.  Since the offending, you have done extremely well; a lot of people in such a situation simply toss in the towel. You have family support and your parents have come from Queensland, as I understand it, to support you. 

37You have the references from the landlords which I have already referred to, you have the reports from Hanson Psychology and Mr Cummins and you upon release have stable accommodation, you have work available to you, your circumstances of mental health are clearly improving and you are working hard at that.  You are doing courses and you have been receiving psychological treatment.

38Under a community corrections order, you can receiver mental health and such treatment and it is clear that if you were to be incarcerated, you would be at serious risk of your mental health becoming much more unstable.

39There is no evidence of this before me but from experience I can see from what is in those reports that you were doing a sentence in protection which would effectively make it very difficult for you to do courses.  You now, I am told, have a relationship of a couple of months duration and that lady has come to court with you. 

40All those protective factors are in place.  The prospects of your rehabilitating are surprisingly good considering the circumstances in which you found yourself.  The risk of your reoffending if you continue your rehabilitation would be low.

41It is difficult to put into words the way in which I believe this sort of offending has to be regarded in terms of the reality of the accused person.  You have described where you living - this is a quote, it is not a judicial expression but one I would adopt for these purposes - "a shit pit".  I have no doubt, knowing the place, that that is true and it is asking a lot of people to behave themselves in that scenario and you almost continually in that situation did behave yourself.

42I am well aware of the principles outlined in the case of Toumngeun - T-O-U-M-N-G-E-U-N - where Neave JA said the following that in the circumstances of that case, His Honour was entitled to show mercy to the accused and to take into account the fact that he was a full-time carer of one his daughters and he shared the care of his daughter with her aunt:

“It is particularly important this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped.  That, after all, may be a decision which rebounds very much to the benefit of the community"

43She went on further to quote Maxwell P from DPP v Tocava:

“A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in the case of a serious offence, if in the long term the community’s interests will be best served by that course.  This court should seek to promote public understanding of the fact that apart from the interest of the individual whom is sought to be rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime”

44In the oft-quoted decision of Boulton, all those matters are of course gone through.  It is my view having heard the materials yesterday and looked at the cases that have been given to me that all the purposes of sentencing this matter can be achieved by the exercise of a sentencing discretion to put you on a community corrections order.

45If that involves a sense of mercy and an understanding of the dreadful circumstances to which you had descended, then so be it and I believed I am entitled to do so. 

46I will not go through the comparable cases - they have been tendered and I can assure the court that I have read them.  A community corrections order, clearly, on the basis of Boulton and subsequent decisions can achieve the punitive aspects of sentencing as well as increasing the prospects of rehabilitation.

47I think to put you in now for a relatively short of period of time would be jeopardising all the progress that you have made.

48Accordingly, in all the circumstances of this matter, if you agree you will be placed on a community corrections order.  That order will be a very significant one.  It will be for a period of four years, it will be conviction which is a punishment in itself, there will be 300 hours of community service work. 

49The conditions will be, as I have said, community work, treatment and rehab for alcohol, treatment and rehab for mental health and treatment and rehab for programs to reduce reoffending.  There will also be supervision.

50Such an order over such an extended period of time will have a very significant effect on your freedoms and again, as I have said and I am not going to start quoting from it, this is the very situation in my view that Boulton was talking about.

51All right, so if you agree to sign that, enter into that, that will be the disposition.  If you could go down to the dock with the associate please, Mr Porter?

52All right, well that order is made.  I do that on the basis that even though in the community corrections order, in assessment it says the risk of reoffending is high, it is my view that that would not be the case if the community corrections order is carried and I accept that you have the desire to do so.

53I do not think there is any other I need to make?

54MS CROXFORD:  No, Your Honour.

55HIS HONOUR:  No.  There's something else I - yes, there is something that I - yes, there is something else I need to say and I have forgotten what it was but ‑ ‑ ‑

56MS CROXFORD:  Does Your Honour need to give a 6AAA indication?

57HIS HONOUR:  Not for a CCO, I don't do it.

58MS CROXFORD:  Not for a CCO, I didn't ‑ ‑ ‑

59HIS HONOUR:  It's only with a combination, isn't it?

60MS CROXFORD:  I think so, Your Honour, because it's a term of imprisonment.

61HIS HONOUR:  Well, as I said, the - yes.  Sorry, the other thing I meant to add to that order was that the hours - this is what I had forgotten - the hours doing programs will be regarded as community service hours in total.  It is not just limited to 20 hours or something like that because what I am really concerned about with him is the ongoing rehabilitation.  All right?  All right.  Thank you counsel for that.  Ms Croxford, for your robust submissions.

62MS CROXFORD:  Thank you, Your Honour.

‑ ‑ ‑