Director of Public Prosecutions v Scott
[2024] VCC 104
•14 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE KOORI COURT DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00252, CR-23-01665
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARRIE SCOTT |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2024 | |
DATE OF SENTENCE: | 14 February 2024 | |
CASE MAY BE CITED AS: | DPP v Scott | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 104 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Burglary – Theft of a firearm – Theft – Prohibited person possess firearm – Attempt to pervert the course of justice – Plea of guilty – Koori Court Jurisdiction – Two indictments -
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited:Barry v The Queen [2022] VSCA 94; Benkic v The Queen [2019] VSCA 34; R v Renzella [1997] 2 VR 88
Sentence: Total effective sentence of three years’ imprisonment with a non-parole period of 23 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Van Dyk | Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Kurnai Legal |
HIS HONOUR:
Garrie Talwoepen Scott, you have pleaded guilty in the Koori Court to the following offences:
On Indictment no.M11973190.1 you have pleaded guilty to:
a.One charge of burglary, (the maximum penalty for which is 10 years' imprisonment);
b.One charge of theft of a firearm (which is a rolled up charge), (the maximum penalty is 15 years' imprisonment);
c.A charge of theft, (which is also a rolled up charge), (the maximum penalty for which is 10 years' imprisonment); and
d.A charge of being a prohibited person in possession of a firearm, (the maximum penalty for which is 10 years' imprisonment).
You have also admitted relevant summary offences in respect of that indictment:
a.A charge of failing to comply with an order to provide information or assistance, (the maximum penalty is five years'); and
b.A charge of unauthorised carrying on a business of dealing in firearms (the maximum for which is four years').
On indictment P11763911 you have pleaded guilty to:
a.A charge of attempt to pervert the course of justice – which has a maximum of 25 years' imprisonment;
You have also admitted relevant summary offences:
a.Committing an indictable offence whilst on bail, a maximum of three months' imprisonment; and
b.Four charges of contravening a condition of bail – which again is a three month maximum for each;
c.Charge 7: which was a relevant summary offence of unlicenced driving– has a maximum of six months' imprisonment; and
d.The relevant summary offence of Charge 26: possess a Schedule 4 poison– a maximum of 10 penalty units.
The circumstances of your offending are set out in two prosecution openings, both dated 23 January this year. They will be Exhibits A and B. I think I made, Ms Van Dyk, sentencing submissions Exhibit B, so they will be Exhibits A and C on the plea and they form part of these reasons for sentence.
You have admitted relevant prior convictions.
Circumstances of Offending
In brief, on the evening of 28 August 2021, you travelled together with Shaun Bourke in a Toyota Camry to the home of Paul Tricario in Shepparton and at the time, Mr Tricario was out visiting a friend and this was clearly known to you. Mr Tricarico is the holder of a gun licence.
You and Bourke located Mr Tricario’s gun safe, which was locked and bolted to the floor and wall. Inside the safe were:
a.A Ruger Scout rifle;
b.A Bruno 9mm handgun;
c.A Torus Circuit Judge handgun/shotgun hybrid;
d.A Crossman air rifle;
e.9mm, .45 410 ammunition;
f.A brown handled knife; and
g.A black machete.
Both of you used power tools to cut around the floor and wall and remove the safe. You also took a bag of shooting accessories and other items, including:
a.a black speed loader;
b.Black Peltor headphones;
c.Black Impact headphones; and
d.Baretta Trident shooting glasses and case.
You and Bourke placed these items and the gun safe in your vehicle, and drove to another co-offender's house, Mr Sheehey, in Clarence Street, Shepparton.
You removed the safe, took it to the garage. The three of you used various tools to open the safe and remove the firearms, ammunition and other items. You loaded these items back into your vehicle and drove them away.
You and another associate then drove the firearms and ammunition to an apartment in Melbourne. At the apartment, you took a series of photographs of the firearms and ammunition and sent them to Mr Sheehey.
Mr Sheehey then forwarded these photographs via an encrypted messaging application to an associate, Nicholas Hawkins, offering the longarms and the handgun for sale.
At around 8.22am on 30 August 2021, you went to Halliwell Court, Corio to meet with Hawkins and another co-offender, Hutchinson. You agreed to sell the firearms to Hawkins for 1.5oz methylamphetamine, $1000 cash, a litre of GHB and two nights’ accommodation.
You handed over the firearms and ammunition to Hawkins but did not receive any of the payment in return at that time.
On 31 August 2021, Mr Sheehey travelled to Corio to meet Mr Hawkins, having been told he could receive seven grams of methylamphetamine in return for the firearms. On arrival, Mr Sheehey was given the agreed methylamphetamine by an associate of Hawkins.
None of the firearms or other property you stole from Mr Tricario have been recovered.
You were arrested on 16 September 2021. A demand was made of you for the passcode to your mobile phone in accordance with a court order. You refused to comply.
Objective gravity and moral culpability
I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability. I find that these are mid-range examples of this kind of offending, that is, in relation to the firearms, given:
a.The premeditation and planning evidenced by your use of power tools to remove and open the gun safe;
b.The quantity of firearms stolen by you;
c.The fact that none of the firearms or ammunition were recovered; and
d.The fact that you sold the firearms in circumstances that must have made it obvious that they were likely to be used for criminal purposes.
Further sentencing considerations include,
a.The theft of firearms as being a particularly serious species of theft (as reflected in its higher maximum penalty);
b.Such thefts can increase the illegitimate flow of firearms in the community and lead to very serious criminal offending;
c.Lower sentences may be imposed in cases where some or all of the firearms have been recovered, especially where the offender has assisted in this;[1]
d.Premeditated examples of the theft of firearms cannot be categorised as 'low-level offending';[2]
[1] Barry v The Queen [2022] VSCA 94, [15] (Priest and Beach JJA).
[2] Benkic v The Queen [2019] VSCA 34, [17] (Priest and Beach JJA).
Turning now to a brief summary as to the attempted to pervert the course of justice and other charges.
On 23 June 2022 you were released on bail for the firearms theft offending. Your bail conditions required you to:
a.Report to Wallan police station daily between 9am and 6pm;
b.Reside at Samson Brook Drive, Wallan;
c.Maintain a curfew;
d.Not enter the City of Greater Shepparton unless for the purposes of attending court or direction of CISP workers; and
e.Undertaking weekly urine drug screens and providing a copy of the screens to Detective Senior Constable Bingham at Shepparton.
You failed to comply with these conditions:
a.You failed to report to Wallan police station on 26 July 22, 29 July 22 and 2 August 22;
b.You failed to maintain curfew on 27, 28 and 29 July 22;
c.You entered the City of Greater Shepparton on 14 July 22; and
d.You failed to provide weekly urine drug screens on 3 July 22 and 17 July 22.
On 3 August 2022 you sent a text message to your CISP Case Manager, Sheena Waters, which included what appeared to be the results of a urine drug screen. This was for forwarding to the informant. On 4 August 2022 you sent another message to Ms Waters, again for forwarding to the informant. This message also contained what appeared to be the results of a urine drug screen. The results for both urine drug screens were negative. However, there were anomalies in the documents that raised suspicions about their authenticity. On 8 August you spoke to Ms Waters and admitted faking the results of both urine drug screens. The reason you gave was that you could not afford to pay for the screens. This is the foundation of the rolled-up charge of attempting to pervert the course of justice.
On 14 July 22 and 5 August 22 you also drove while unlicensed.
You were arrested on 5 August 2022. Police located the following drugs at your home:
a.0.1 grams of cocaine (which is the basis of the charge of possessing a drug of dependence); and
b.A Quetiapine sleeve with two tablets (which is the related summary offence, possess a Schedule 4 poison).
In relation to possessing a drug of dependence, you are also charged with committing an indictable offence while on bail.
In relation to the charge of possessing a drug of dependence – namely cocaine – I am satisfied on the balance of probabilities that your offence was not committed for any purpose relating to trafficking in cocaine. This is on the basis of the very small quantity of cocaine found in your possession and your drug history and the absence of any evidence suggesting trafficking on your part and this means that the maximum penalty for the offence is 30 penalty units or one year's imprisonment.
You have been in custody since that time for some 840 days. Six hundred and ninety-eight days at least are attributable to the offences before me. A breakdown of sentences served and pre-sentence detention, including a period that cannot be declared pursuant to s18 was provided to me by both parties.
As I say, some of this time is known as dead time, or Renzella time, some 195 days and I take this into account in a meaningful way that ameliorates your sentence.[3]
[3] R v Renzella [1997] 2 VR 88
Attempting to pervert the course of justice is the most serious offence for which I am required to sentence you in terms of its maximum penalty.
However, a broad range of offending is embraced by this offence. The object of your offence was avoiding detection for being in breach of a bail condition.
You manufactured evidence in order to make it appear that you were complying with this aspect of your bail conditions. Your efforts were unsophisticated and easily uncovered. Your claimed motive was that you could not afford the cost of the urine screens. In all of the circumstances I find this to be at the lowest end of seriousness for the offence of attempting to pervert the course of justice.
In my view, it forms part of a broader pattern of conduct during this period where you failed or refused to comply with the conditions of your bail, and other legal obligations (I am referring to unlicensed driving). Fabricating the urine screens may well be the most serious example of this broader pattern, but in my view falls within the same general magnitude of seriousness. I also note that there perhaps could have been other charges that might have reflected the making of a false document.
Personal Circumstances
Turning to personal circumstances, Mr Scott you were born, I was told, in August 1989 to Nolita Parnell and Garry Scott. You are now 34 years of age. Both parents were present and participated in your Koori Court Sentencing Conversation, as did other family members, including Dr Esme Bamblett, an eminent and highly respected Elder of the Victorian Aboriginal community, as well as being your grandmother.
You are a proud Wiradjuri, Yorta Yorta and Bangerang man.
You are close to your two biological siblings. You also have siblings that you report you have a limited relationship with, half-siblings that you have a limited relationship with. You have a close and supportive relationship with your mother and also your grandmother. You have a strong relationship with your father.
Early life was not always so supportive, however. You were exposed to violence in the home as a young child. The psychological report of Ms Cokorilo relied upon discloses at age four apparently you were witness to your father attempting to shoot your mother. Following this incident your family fled to Queensland.
You have had on and off contact with your father in early childhood. Contact with him was limited by periods of incarceration. I was told that in the past your father had been incarcerated in relation to violent offending.[4] As was noted in Ms Van Dyk’s excellent sentencing submissions in this matter, Exhibit 2 at paragraph 18; ‘It is well documented that having an incarcerated parent significantly affects a child’s ability to engage with education, and increases the likelihood of them also entering the criminal justice system' ( and in those submissions that statement is footnoted. That is Exhibit B, I should say, not Exhibit 2, the sentencing submissions.)
[4] Report of Sandra Cokorilo dated 17 October 2023 [7].
I note that your father has reformed substantially in the past decade or so and has the experience of beating his own substance use issues that he can share with you in your battle. As I have noted he was present in court and provides a stable support for you now.
You have four children:
a.A 17-year-old son from a relationship that ended when you were 18. Prior to your incarceration you had sole custody of your son, I was told;
b.Three children with your ex-wife of 10 years and I was told you have not had contact with those children since 2021.
While you have been in prison your mother has taken care of your 17-year-old son, further demonstrating her support for you.
School was difficult for you. You were not particularly interested in school and due to moving house a lot you attended five different primary schools. You attended school until Year 8 where behavioural issues, particularly in relation to getting in fights and damaging property saw you exit from school.
I was told you have been consistently employed between the ages of 14 and 25 having worked in roles such as labourer, receptionist and in sales. Of note you worked at the Aboriginal Advancement League where you were employed as a Family and Housing Support Officer and I have mentioned Dr Esmerelda Bamblett and there was a letter provided where she reflected you being a pleasant, reliable, and hard-working employee.[5] You have been working as a Billet to make the most of your time in custody.[6]
[5] Letter of Dr Esmerelda Bamblett dated 31 October 2023.
[6] Report of Sandra Cokorilo dated 17 October 2023 [17].
You have also used your time well producing very high standard cultural artwork of which you should be very proud.
You have had a long history of alcohol and substance abuse. You began drinking alcohol, smoking cannabis and regularly using MDMA in your early teens. You reported daily use of methamphetamine from the age of 25 with brief periods of abstinence owing to incarceration. You attended residential rehabilitation in 2019 and remained abstinent for a period of six months but relapsed, I was told, during periods of stress, particularly around separation.
Your criminal history is of some length, although on my assessment, does not disclose prior convictions for firearms or ammunition, or dishonesty or burglary, stolen goods offences. It would appear that this is the longest period you have served in custody.
Your co-offender Mr Burke has a significantly lengthier criminal history than you.
Koori Court Participation
You participated fully in the sentencing conversation that lies at the heart of the Koori Court process. It was not easy for you, and you showed emotion at several points throughout.
You had great family support and participation throughout.
Elders Uncle Wally Harrison and Aunty Pam Pedersen spoke to you about your family , your culture, the problems in your life and your aspirations.
Your grandmother, Dr Bamblett spoke of you as her beautiful grandson. Your mother, Nolita, also spoke lovingly as to your nature and your positive attributes. Your brother Khale described you as the smartest of all the siblings. Your father became emotional, as did you, in identifying the strength within you to beat your vulnerability to methylamphetamine.
Your artwork was also discussed in positive terms and rightly so and you were encouraged to continue pursuing artwork, because you are clearly quite gifted in that regard.
You are entitled to mitigation for your participation in the sentencing conversation. I am satisfied you showed deep remorse and regret for your offending and your circumstances. I am satisfied that you demonstrated genuine desire to atone for your past misdeeds.
Sentencing factors
Plea of guilty and remorse
A plea of guilty is of utilitarian value in that it avoids the need for a trial, and it attracts a sentencing discount accordingly.
Difficult upbringing
I give weight to the trauma to which you were exposed to when growing up and to which I have already mentioned, particularly the instability that flowed from that. I accept that your moral culpability is somewhat reduced by your exposure to this trauma. However, it is has not been suggested to me – and I do not find – that your upbringing specifically contributed to or explains your offending. It is relevant to your dependence on substances and reduced moral culpability for that dependence given the matters to which I have referred.
Prospects of rehabilitation
I am guarded at your prospects for rehabilitation, save to say that if you can genuinely and faithfully do the work on yourself, with the support of others, to beat your vulnerability to substances, your prospects will be good.
You need to acknowledge that you need assistance, and engage with appropriate services after release on parole.
Parity
Turning to considerations of parity, I was provided with the sentencing outcomes of co-offenders. I will not recite each of the sentences imposed, or the personal circumstances of co-offenders. Doing the best I can I have arrived at a sentence that reflects parity and disparity with others relevant to your offending.
The offender most relevant to your circumstances is Mr Burke. Mr Burke has a more significant history than you. Mr Burke did not have available to him the mitigation that flows from your participation in the sentencing conversation and the matters which I accepted based upon that conversation.
Doing the best I can, synthesising all of the relevant factors and acknowledging that general deterrence for crimes of this nature is a significant sentencing factor, as is denunciation and to some degree in your case, specific deterrence and also noting that I am satisfied that you are at a watershed moment in your life, where you must embrace the support of parole and the services offered, and draw on the support of your family, if you are not to be caught in a cycle of re-offending and incarceration. The sentencing conversation in particular satisfied me that you are at a point where you have the willingness and the opportunity to embrace such a change and I have afforded some leniency in the sentence, due to that factor, some leniency and mercy.
Sentence
I sentence you as follows, Mr Scott:
a.On the rolled-up charge of theft of a firearm, you are sentenced to two years' imprisonment (and this is the base sentence);
b.On the charge of burglary, 12 months' imprisonment, two months of which are to be served cumulatively on the base sentence;
c.On the rolled-up charge of theft, 12 months' imprisonment, two months of which are to be served cumulatively on the base sentence; and
d.On the rolled-up charge of being a prohibited person in possession of a firearm, nine months' imprisonment, two months of which are to be served cumulatively on the base sentence;
e.On the charge of failing to comply with an order to provide information or assistance, six months' imprisonment, two months of which is to be served cumulatively on the base sentence;
f.On the charge of unauthorised carrying on a business of dealing in firearms, six months' imprisonment, two months of which are to be served cumulatively on the base sentence;
g.On the charge of attempting to pervert the course of justice, nine months' imprisonment, two months of which are to be served cumulatively on the base sentence;
h.On related summary offence 5 and related summary offences (dealing with the contravention condition of bail), I impose an aggregate sentence on all of those relevant summary offences of two months' imprisonment, to be served concurrently ;
i.On the charge of possessing a drug of dependence you are fined $500.
j.On the related summary offence (of possess a Schedule 4 poison), you are convicted and discharged.
k.On the charge of unlicenced driving, I impose a sentence of one month imprisonment, to be served concurrently with the base sentence.
This makes for a total effective sentence of three years' imprisonment. I set a non-parole period of 23 months. I declare that you have served 698 days of pre-sentence detention. But for your pleas of guilty, I would have imposed a total effective sentence of four and a half years' imprisonment and a non-parole period of three years.
I make the disposal order that is sought.
Now, hopefully I have got the – that is all added up correctly. There is – I did not specially mention totality, but there is significant overlap of criminality in relation to the first indictment and that is the reason for the substantial concurrency. Mr Scott, effectively that sees you eligible for parole immediately and obviously there is a process involved there. So that is not for this court, that is for the administration to deal with, but this sentence gives you an opportunity to pursue rehabilitation under parole in the community and pursue those other aspirations that you have to make good on what you told the Elders at the sentencing conversation what you want to do with your life. Yes, we'll adjourn the court.
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