Director of Public Prosecutions v Scott
[2015] VCC 2001
•21 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01335
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY SCOTT |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 October 2015 | |
DATE OF SENTENCE: | ||
CASE MAY BE CITED AS: | DPP v Scott | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 2001 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | |
| For the Accused | Ms A. Hancock |
HIS HONOUR:
1 Anthony Scott, you have pleaded guilty to one charge of causing serious injury recklessly. That crime carries a maximum penalty of 15 years imprisonment. You pleaded guilty at the earliest reasonable opportunity and you are now 29 years of age. There was a delay, which was never ultimately explained to me, of some 18 months before in fact you were charged in relation to this matter and that is a significant delay indeed.
2 On the material before me I accept that your plea of guilty is accompanied by appropriate remorse and you must also, of course, get the utilitarian benefit of that plea of guilty. You do have a significant criminal history and you have been incarcerated on occasions before. However, apart from an armed robbery and one assault it seems to me that the criminal history does not involve violence to the extent that one usually finds in a person in your situation and it gives me some confidence that if you can reduce your substance abuse the risk of you reoffending would be significantly reduced.
3 You dealt with this matter in Koori Court and you had the courage to sit there and deal with your elders and through that process I was able to ascertain that certainly as you sat there you had appropriate remorse and a determination to rehabilitate. Whether you can maintain that is going to be matter for you, Mr Scott.
4 The circumstances of the offending were that in December of 2013 you and others - I do not have to go into all the detail of this, the opening has been exhibited in the matter - were drinking throughout the course of the day. It was essentially a family matter where people were known to each other, if not related. The victim in the matter, Mr Clarke, was intoxicated, as indeed were you. During the course of travelling in a taxi Mr Clarke apparently became convinced that you were making advances towards his partner and I accept that that in fact was not the case.
5 A dispute arose in the taxi and as the Crown opening says, "Tensions were high." At approximately 5.30 pm the taxi arrived at an address where you all got out. Once inside that address the victim again voiced his disapproval of you and said, "If you want her you can have her," referring to his partner. He and the partner had a minor verbal argument and she was pushed by him and he exited the premises via the front door. You have followed him out the front yelling, "Don't ever hit a female."
6 A verbal dispute began between the two of you and you shoved him in the chest at which stage the victim then threw a punch at you and missed. You then threw a punch using a clenched fist and he says he did not see that punch coming and he fell to the ground. Whether he lost consciousness on the way to the ground or when he hit the ground, I am not too sure. But in any event he was seriously injured. You left the immediate scene but did in fact wait nearby.
7 The injuries sustained were a brain injury which required surgery by neurosurgeons. He has had a metal plate inserted into his skull to protect the damaged section of his brain. I have read his victim impact statement and that indicates, as is supported by the Crown opening, that he now struggles with day-to-day activities with complications, he has swelling in his hands and feet, migraines and struggled to walk long distances. He says that he had never suffered those injuries or suffered those consequences before this occurred.
8 It is a situation where you could have chanced your arm in front of a jury with this matter and I give you credit for not having done that. You have clearly accepted responsibility for the ultimate consequences. It seems to me, looking at the overall situation, that this is one of those serious injury charges where the actual gravaman of the offence itself is very much at the lower end but the consequences are at the higher end and that calls for a balancing act.
9 With your background and criminal history there is no doubt that a custodial sentence would have been inevitable and it was not suggested otherwise. You have now been in custody in relation to this matter for 174 days. You have done 113 days of that in lockdown and I take that very much into account. If you were a prisoner undergoing a sentence you would have effectively now done something in the order of over a year. I think that is sufficient in these circumstances for active custody but there would then be a community corrections order.
10 Tendered on your behalf were very helpful submissions and they outline your background. Also was a report from a forensic psychiatrist, a Mr Galloghly, and also a report from a psychologist, Mr Michael Bilyk. Your history is a very unfortunate one. You were in care at a very early age. You suffered the side effects or consequences of alcoholism and violence. You left school in year 9 with a pregnant partner. You have three children who are currently in the care of their mothers. This offending is not drug-related but this seems to be an opportunity for you to be able to endeavour at least to deal with your previous drug history.
11 The bulk of your offending would appear to be drug-related or if not drug‑related, alcohol-related, which this offending clearly is. You claim or may well have been diagnosed at an early stage with a bipolar disorder. You have indicated to a psychiatrist that you had met the mother of your first children when you were 13 and you were together for nine years until you were 22. You started drinking alcohol at the age of 12 and you drank regularly from the ages of 13 onwards. You started using ice, or speed certainly, around about the age of 16, injecting it from 20, and ice and heroin from 21 on.
12 It has been an iterant existence for you with very little stability. Those reports will remain on file so I do not see any need to go into them in any detail at all. The principles outlined in the decision of Bugmy apply very much here. You have reached a stage I think where at 29 you are going to have to get this sorted out or you will either die or spend very, very long periods of time in gaol. As you will be fully aware it has been made very clear to me by being in Koori Court for some years, the life expectancy of young Aboriginal men in your situation, Mr Scott, is very, very limited. Indeed if you want to live you are going to have to make the appropriate decisions.
13 I have had you assessed for a community corrections order and you have been found to be acceptable. I do not propose to put any work hours on that community corrections order because I think that the time that you have spent in gaol is well and truly sufficient for the moral culpability of what you did. However, it must be seen to be serious offending and general deterrence must play a part in this, sort of, not unprovoked but gratuitous, if you like, violence. There must also be denunciation and appropriate punishment, which, I think, coupled with the CCO, there will be.
14 Discussion took place and you have now been accepted to go to Wulgunggo Ngalu in Gippsland where you will be spending hopefully a period of about three months to connect culturally and to essentially get your head together before you try and live in the wider community again. You will receive assistance with alcohol, assistance with drugs and assistance with mental health during the course of this community corrections order.
15 I do not see any point in having a long community corrections order, it just seems to increase the risk of breach by doing that with people. In your circumstances I accept the concept that can become overwhelming. However, it must be reasonably long and accordingly it will be a community corrections order with conviction for a period of two years and it will have the conditions relating to supervision, drug dependence, alcohol dependence, mental health and also there will be programs to reduce the risk of reoffending which in my clear understanding will incorporate you going to Wulgunggo Ngalu.
16 Having spoken to you and listened to you talk to the elders, Wulgunggo Ngalu is very important for you. Mr Braybrook tells me that your brother was there and did pretty well. It is a real chance for you to assimilate so you can come back into the wider community with a chance of leading a worthwhile existence.
17 So taking all those matters into account on the charge a sentence of imprisonment for six months and I direct that 174 days be reckoned as having been served under that sentence and the CCO is to come into play upon your release. Your counsel has told me that you have matters pending in the Magistrates' Court and that a bail application will be made on Monday, which on my calculation will either be the day of or the day before your release. The Magistrates' Court I give permission to be told what I have done. I understand that you will be appearing in Koori Court in the Magistrates' Court and when you do ultimately appear that whilst I am not privy to the matters that are going to be dealt with there, it is from your situation probably getting very close to the last chance I think.
18 MR HANCOCK: Would Your Honour like me to assist?
19 HIS HONOUR Yes, if you wouldn't mind, thanks, Ms Hancock. All right. That CCO is entered into. There is no other orders I have to make?
20 MR ROPER: No, Your Honour.
21 HIS HONOUR: I think there are no blood samples or any of those?
22 MR ROPER: No, there is no ancillary orders sought.
23 HIS HONOUR: No, that is all right. Please stand up, thanks, Mr Scott. Look, you are 29, you are still a young man and you look well. All right? Stay well. Go up to Wulgunggo Ngalu. Your brother would have told you or you may have discussed with him, they are good people and it gives you a real chance. All right? Whatever you do, go straight there, do not have a taste, do not do anything silly before you go. All right? In Koori Court the only reason we ever really have adjournments is because people die. O.K.? And you are a prize candidate. If you don't get your act together now, mate, you certainly won't make 40, that is for sure. You know that and I know that and everyone in the room knows that. So here is your chance. Having spoken to you, I think you are a good person. I think you can really get through all this but good luck with it, bro. All right?
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