Director of Public Prosecutions v Scott
[2023] VCC 325
•7 March 2023 (Melbourne)
S5
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-20-00731
Indictment No. K12157422.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL EDWARD SCOTT |
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JUDGE: | HER HONOUR JUDGE DAWES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March; 21 September; 26 October; 15 December 2022; 27 February 2023 | |
DATE OF SENTENCE: | 7 March 2023 (Melbourne) | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Scott | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 325 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Common assault – make threat to kill – criminal damage to property
Legislation Cited: Crimes Act 1958, s20, s197(1); Sentencing Act 1991, s4(1), s5(2H), s6AAA, s10A(1)(a), s320A(2); Mental Health Act 2014 (Vic) s 4(1)
Cases Cited:Bugmy v The Queen [2013] 249 CLR 571; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102
Sentence: Total effective sentence of five months’ imprisonment.
Section 6AAA declaration: conviction and sentence of nine months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P Pickering | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr T Fitzpatrick | Geoff Clancy Solicitor |
HER HONOUR:
1Paul Scott, you have pleaded guilty to the following offences:
Charge Offence Penalty 1
Common assault
15 years’ imprisonment
2
Make threat to kill
10 years’ imprisonment
3
Criminal damage to property
10 years’ imprisonment
2Your offending occurred between 16 and 17 August 2019. You were 53 years of age at the time.
3The Prosecution Opening includes references to other misconduct evidence that is not covered by the indictment. This evidence forms part of the narrative and places the charged acts into context.
4The circumstances of your offending have been provided in the Summary of Prosecution Opening. It is agreed to be an accurate account of events. Can I confirm there is no issue that the maximum penalty for common assault is 15 years?
5COUNSEL: No, Your Honour.
6HER HONOUR: All right, and then 10 years and 10 years for the other two.
7MR PICKERING: Yes, Your Honour.
8HER HONOUR: A general summary of the facts is as follows.
9On 16 August 2019, you contacted Wellways, a mental health support service, saying that you had a gun and would shoot yourself.
10At approximately 11.00 pm, police were notified of the incident. Leading Senior Constable Westrope contacted you on the telephone. You told him that you had a gun and that you were going to kill yourself.
11A 'surrender plan' was arranged between you, where you would turn on the light at the front of your house and come out with your hands up.
12At around 11.45 pm, Leading Senior Constable Westrope and Leading Senior Constable Ellis attended at your address and parked in your driveway. Leading Senior Constable Mark Staley, First Constable Miranda Mouat and Sergeant David Young also arrived and parked in the street.
13Two police members activated their body worn cameras. Leading Senior Constable Westrope approached your front door. You came out through the door but did not turn the front light on. Leading Senior Constable Westrope began to talk to you. You became enraged and started to yell abusively at the police.
14You pulled out a black imitation firearm with a perforated barrel from behind your back. You waved it around in the direction of the police and yelled: 'Let's fucken roll cunt, I've got plenty of bullets. You know me cunt, you come one on one. I've got plenty of fucking bullets in my gun too cunt.'
15You put the firearm down on top of the meter box outside your front door. You picked it up again and waved it around, as you swore and yelled at the police. Leading Senior Constable Ellis saw you point the firearm directly at him. He yelled at you to put the firearm down and retreated into the divisional van.
16Sergeant Young was standing at the boundary of your property. He could hear you but had an obscured view of the incident. He moved towards the centre of the property and immediately saw you holding the firearm. Sergeant Young directed that all police were to retreat. When you heard this, you pointed the firearm directly at him. He feared for his life.
17Leading Senior Constable Staley and First Constable Mouat heard you threaten the police. They could see you hold and wave what appeared to be a handgun with an extended barrel. First Constable Mouat believed that a silencer was fitted to the firearm. She felt threatened that you would carry out your threats to shoot the police.
18The police members retreated to the front of your property. You went back inside and closed the door. Leading Senior Constable Westrope contacted you and attempted to negotiate with you to peacefully surrender.
19Charge 1 is a rolled-up charge, being a collection of identifiable charges, bundled together in a single charge. In this case, it relates to similar offending that was committed against five police officers, who are the victims of this offence.
20Your next-door neighbour heard you yell and swear and someone else call out 'He's got a gun'. She heard you go out your back door for a couple of minutes before you went inside.
21You returned out the front and surrendered peacefully. You were conveyed to Northeast Health Wangaratta by ambulance, for a mental health assessment. You were taken to the Emergency Department and shackled to the bed. You began to verbally abuse a nurse and a security guard. You became agitated and kicked the base plate of the hospital bed with significant force, causing damage. As a result of your conduct, the base plate cannot be lowered and the bars on the bed are bent (Charge 3).
22You continued to verbally abuse the security guard, saying, 'I'm going to kill you'. He felt threatened and intimidated by your behaviour (Charge 2).
23The nurse overheard you say, 'I'm playing nice tonight and I'll shoot people next time'. A doctor described you as being mostly cooperative, although she overheard you threaten the nurse and security guard, saying, 'I could kill you and you'.
24At 6.00 am on 17 August 2019, you asked for one of your legs to be freed and the nursing staff agreed. At around 9.30 am, you were spoken to by a mental health practitioner and began to swear at her. She left soon afterwards, advising another security guard to resecure your leg, as you had become agitated and aggressive. As the security guard attempted to do so, you sat up and spat on his face.
25On 17 August 2019, a search warrant was executed at your property. Police located the imitation firearm in your back yard. It was photographed and seized.
26You were then conveyed to the Wangaratta police station, where a record of interview was conducted. You made partial admissions to threatening police including that you told police to 'fuck off' as there were no 'ambos there'. You agreed that you told police to leave and that you were angry. You denied threatening the police.
27When you were asked whether you said 'Let's fuckin' roll cunt, I got plenty of bullets', you said that you did not recall saying that, and then stated, 'Well, most likely I've just fuckin' said that out of anger or frustration.'
28You told the police 'To be honest, I was waiting for them to shoot me. To kill me. Yeah, that's the way I was playing it out. So they would kill me. … I did want to get shot and killed.' You said that you were drunk at the time.
29You admit that you had consumed alcohol prior to this incident, although you are unable to say what you drank or how much you drank. In the past, you have been dependent on alcohol.
30I have viewed the relevant portions of the body worn camera footage that has been tendered. Your voice confirms that you were highly agitated, as you swore and shouted at the police when they told you to drop the gun. One police member told his colleagues to 'get cover'. You were described as 'going off [your] head'. The anxiety and tension that derived from your threating and aggressive behaviour is palpable. The police members were clearly unaware that the firearm was an imitation.
31You maintain that you do not have a recollection of this offending. However, you acknowledge that your conduct on this occasion was to provoke the police.
32You admit that the police would have been terrified by your conduct. This is despite your knowledge that they were not in danger, as the firearm was an imitation.
33You have a lengthy criminal history. You have appeared in court approximately 50 times since 1986. Your offending includes crimes of violence, threats to kill, property damage, dishonesty, breach of court orders, offences against members of police and emergency workers and alcohol-related offending. In the past you have been sentenced to relatively short terms of imprisonment a number of times. You were placed on Community Based Orders (1998, 1999 and 2008); Intensive Correction Orders (2002 and 2003) and a Community Correction Order (2014).
34Your contravention of court orders includes numerous offences of breach of Intervention Orders, failing to appear at court, committing an offence on bail, breach of parole, breach of community work orders and failing to comply with a CBO.
35You were originally charged with a number of offences. On 4 June 2020, you were committed to stand trial, and you entered pleas of not guilty. Your trial was listed to proceed in Wangaratta in August 2022.
36When your matter came before the County Court on 14 July 2020, your counsel raised the potential defence of mental impairment. Your case was adjourned to obtain a medical report and then listed for 11 directions hearings between 24 September 2020 and 2 February 2022.
37Mr Jeffrey Cummins, conducted a psychological assessment in January 2021. He recommended that a neuropsychological examination be undertaken, to determine if there was an appropriate defence. However, the neuropsychological assessment was delayed for an extensive period. Eventually, your matter was listed before me for a case conference on 17 March 2022. An updated indictment was then filed, and you entered your pleas of guilty.
38Your offending occurred in August 2019 and resolved around two-and-a-half years later. It is accepted that issues related to the COVID‑19 pandemic resulted in an interruption to court proceedings and the availability of appropriate medical services to consider the potential impairment defence, which ultimately did not proceed.
39The hearing of your plea of guilty has been going for almost 12 months, as you have sought to obtain mitigating evidence. While you do bear some responsibility for the time it took to ultimately finalise this matter, I accept that the delay in these proceedings is a relevant consideration.
40You are aware of the risk of immediate imprisonment, and this has been hanging over your head for a lengthy period. I accept that you must have suffered considerable anxiety, which has been distressing. I take the delay into account. It weighs heavily in your favour.
41Your plea has a significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial. You are entitled to the full benefit for your guilty plea to the current indictment. Although you maintain you have no recollection of the events or of the commission of these offences, you have admitted responsibility for your offending and entered pleas of guilty.
42Your guilty plea has facilitated the efficient administration of justice. This is particularly relevant given the delay in jury trials that resulted from the COVID‑19 pandemic. I consider the utilitarian benefit of your plea to be enhanced by the fact that it was entered in March 2022. The prosecution agrees that a plea of guilty entered at this time should attract a more pronounced amelioration of sentence than at another time.
43You have not been charged with any subsequent offences. I accept that your prospects have improved, and I will refer to your rehabilitation in a moment.
44I turn now to your personal circumstances. You were born in June 1966 and are now age 56 years. You live on your own in Yarrawonga and are not currently in a relationship. You have eight children from two previous relationships, ranging between the ages of 10 and 29 years. I am told that you maintain contact with most of them.
45You were born, raised and educated in Shepparton. Your parents separated when you were six weeks' old. You present as a Koori man on your father's side. You have maintained a relationship with your father, despite being subjected to inappropriate physical discipline from him and exposed to physical punishment from an early age. Your father would strike you with his fists and with objects, including pieces of wood and meat cleavers.
46You were raised by your grandparents and had a good relationship with them. They are now both deceased.
47I am told that you were frequently picked on at school by other students. Further, that your father would abuse other students as they went past your house and then would turn to pick on you.
48After leaving school at the end of Year 10, you obtained a forklift licence and a licence for machine operation. You had many jobs including driving machinery, developing a property, owning a caryard, and working in scrap metal.
49You have not worked since 2013 and have been in receipt of a disability support pension since that time.
50You have suffered several medical injuries in the past, including your skull being 'split open' when you were six and again at 10 years of age. You were admitted to hospital and believe you received an acquired brain injury.
51You have been involved in both car and motorbike accidents. In 1993, you suffered a significant back injury. You were prescribed large amounts of Oxycontin for chronic back pain, and have continued to take that medication, although currently on a much lower dose.
52You commenced having seizures at the age of 15 and these still occasionally occur. You are prescribed Epilim.
53You commenced consuming alcohol when you were around 17 years of age and have a history of drinking regularly and, at times, heavily. I am told that you reduced your consumption of alcohol around the time you entered your plea of guilty. You have also occasionally used cannabis.
54On 27 October 2022, you were admitted to the Cobram Hospital to engage in the detoxification of alcohol and a reduction of your opiate medication. You were discharged on 14 December 2022, having completed alcohol withdrawal, and continuing a slow reduction of Oxycontin. You are currently prescribed Jurnista and it is planned to further reduce the dosage.
55You are now abstinent from alcohol and intend to remain so. You receive fortnightly support from an AOD counsellor which has assisted you in remaining alcohol free.
56Since 2007, you have been provided with DHHS accommodation. You resided there with your partner until your relationship ended in 2012. You now live on your own.
57A document from Housing Services Victoria was provided to the Court by the prosecution. It confirms that if there is a temporary absence for up to six months you can retain the accommodation.
58You have a history of short-term psychiatric admissions to hospital in relation to acute mental health episodes, including suicidal ideation and attempted suicide.
59You have received the benefit of assistance through the NDIS since around the time of these offences. The positive support has attributed to your stability while on bail for these matters and you have had little contact with mental health services during that time. It has been of great assistance to you.
60Your support worker, Mr Berkan Dag, has regularly worked with you since April 2022 and attended court several times. In a letter he has written to the Court, he states that he sees you two to three times per week, as well as maintaining contact over the phone. As a result of your engagement with him, you now wish to engage with community services and have become less isolated and reclusive. You regularly see an occupational therapist.
61Mr Dag describes that you have made considerable progress through your engagement with the NDIS. This support remains available upon your release from custody, although there is no guarantee of continuity of staff.
62In his opinion, the court case has been a heavy burden on you. You have remained in fear of incarceration for over three-and-a-half years.
63Your counsel submitted that your prospects of rehabilitation have improved significantly, given that you have successfully engaged in, and complied with, treatment. Relevantly, you have not been involved in any further offending. I accept this submission. You are successfully managing your addiction to alcohol, have reduced your opiate dependency and have various forms of ongoing professional intervention in place. You are most fortunate in that regard.
64It is submitted on your behalf that you are a person who presents with a significantly deprived background and that this should be given weight in sentencing. The prosecution accepts the submission in relation to your childhood deprivation. There is no dispute that this should be considered when assessing your moral culpability and other sentencing considerations.
65I accept that you grew up in an environment of disadvantage and that you experienced childhood trauma and abuse. You were subjected to family violence. I accept that your dysfunctional childhood, characterised by family violence and abuse, reflects a background of considerable social deprivation. The relevance of such deprivation does not diminish over time notwithstanding your lengthy criminal history.
66I consider that the principles of Bugmyv The Queen[1] are applicable and a mitigating factor to the overall sentencing process here. Your moral culpability is reduced. The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and should not be eliminated entirely. This is counter balanced, however, by the principle of community protection which remains a relevant sentencing consideration in your case.
[1] Bugmyv The Queen [2013] 249 CLR 571.
67A number of medical reports and letters have been provided during this plea hearing, including:
· Psychological assessment report of Ms Edwina Beer dated February 2023
· Neuropsychological reports of Mr Martin Jackson dated 18 January 2022 and 11 August 2022
· Forensicare psychiatric report of Dr Maria Triglia dated 15 September 2022
· Psychological report of Mr Jeffrey Cummins dated 20 January 2021
· Letters from Dr Hilton Sheppard dated 4 August, 7 September, 29 September and 20 October 2022
· CT brain scan from Dr Ramesh Ramachandran dated 1 October 2022
· Letter of attendance at Primary Care Connect from Arben Albanoi and Kim Scott dated 24 February 2023
· Letters to the Court from Ray Stephens at Gateway Health, dated 14 December 2022 and 22 February 2023
· Letter from NDIS occupation therapy worker, Daniel Kemp, dated 23 February 2023
· Letter from psychosocial recovery coach, Kai Wooten, dated 22 February 2023
· Letter from Cobram Medical Clinic dated 24 February 2023
· Letters from NDIS support worker, Kate Eddy, dated 19 October 2021 and 1 February 2022
· Letter from support worker, Timothy Hollands, dated 1 February 2022
· Letters from support worker, Berkan Dag, from September 2022 and 28 November 2022.
68I do not propose to summarise this extensive material. I have read it all thoroughly and will refer to the relevant portions. My views have been formed after considering all the material that has been tendered throughout this plea, over the past 12 months.
69I note that your counsel initially sought to submit that you suffered from an acquired brain injury. You do not persist with that submission.
70When considering sentence in this matter, the offence of common assault falls within s320A(2) and is a Category 2 offence, pursuant to the Sentencing Act 1991. The Act is prescriptive in the type of penalty to impose in such a case, being a term of imprisonment unless the relevant circumstances set out in s5(2H) of the Sentencing Act are made out, namely:
“(2H)In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
(a)…
…
(c)the offender proves on the balance of probabilities that—
(i) subject to subsection (2HA), at the time of the commission of the offence, he … had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability; or
(ii)the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(d)…
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of part 3 …
(2HA) Subsection (2H)(c)(i) does not apply to impaired mental functioning caused substantially by self-induced intoxication.
(2HB) In subsections … (2H) …—
Impaired mental functioning has the same meaning as section 10A;
self-induced intoxication has the same meaning as in section 322T(5) and (6) of the Crimes Act 1958.
(2HC) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a)must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b)must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c)must not have regard to—
(i)the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii)an early guilty plea; or
(iii)prospects of rehabilitation; or
(iv)parity with other sentences.”
(2I) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 … should ordinarily be made; and
(b)whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.”
71The net effect of this legislation is that on Charge 1, I must impose a term of imprisonment, unless I am positively satisfied that one of the exceptions are met. In determining substantial and compelling circumstances, I am statutorily prohibited from considering your early plea of guilty and your improved prospects of rehabilitation. I am also statutorily required to give greater weight in the sentencing mix to general deterrence and denunciation and less weight to your personal circumstances.
72This does not mean that I ignore your mitigating personal circumstances. However, the burden you are required to meet is very onerous.
73Your counsel has submitted that you had impaired mental functioning that is causally linked to your offending. This does not apply to impaired mental functioning caused substantially by self-induced intoxication.
74It is also submitted that you have impaired mental functioning that would result in your being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
75The prosecution does not agree with these submissions. The prosecution position is that these exceptions have not been met in this case.
76Impaired mental functioning means 'a mental illness within the meaning of the Mental Health Act 2014'.[2]
[2] Sentencing Act 1991 (Vic), s 10A(1)(a).
77The Mental Health Act defines mental illness as a medical condition that is characterised by a significant disturbance of thought, mood, perception, or memory.[3]
[3] Mental Health Act 2014 (Vic) s 4(1).
78When considering s5(2H)(c)(i) & (ii), the onus is on you to prove on balance your 'impaired mental functioning' and that it is causally linked to the offending or would result in a substantially and materially greater burden of imprisonment in order to avoid a gaol term.
Considering s5(2H)(c)(i):
79Your submissions on the plea are that you have no recollection of your offending. You admit that you were affected by alcohol and opiates at the time.
80In your record of interview, you denied threatening police. You said you were not holding a firearm, but a piece of plastic made up to look like a gun and that it was small, probably like a pistol but if you got up close enough to see it, you would know it was not a gun. You said that you were drunk at the time.
81Mr Jackson wrote that you said that the allegation that you had pulled a gun on the police was 'complete bullshit'. You claimed that it did not happen.
82In discussion with Dr Triglia, you said that you had no recollection of the events. Although you pleaded guilty, you believe that the police had no proof. You wanted to see dashcam or other footage of what is said to have occurred.
83In the most recent assessment with Ms Beer, you said you had no recollection of the situation. Your knowledge has come from what has subsequently been told to you.
84Mr Cummins opined that your mental health was genuinely and severely impaired at the time of the alleged offending. He suggested that information relating to your history of alcohol use/dependency could be relevant when considering a possible mental impairment defence.
85Mr Jackson decided that it was not possible to give any opinion regarding your cognitive capacity at the time of the offending.
86Dr Triglia noted that you told hospital staff that you had consumed alcohol prior to the incident, although the amount is uncertain. It is likely that you had taken your usual benzodiazepine and opiate medication. Alcohol use in combination with these medications is likely to have caused a significant disinhibition of behaviour and affect. The combination of alcohol and medication is also likely to explain your lack of recollection. Your longstanding negative attitudes to police may have contributed to your interaction with them.
87I am unable to be satisfied that your mental functioning was causally connected to your offending. I consider your mental state was likely compromised by your alcohol consumption and prescriptive opiate medication at the relevant time. While it may be that at the time of your offending, your mental functioning was impaired to some extent, I am unable to disentangle the mix of alcohol and opiate use from some underlying mental illness or possible cognitive impairment.
88I am fortified in my view, as your counsel no longer relies on his initial submission, that Verdins[4] considerations pertaining to limbs one to four are applicable. It was conceded that the evidence does not satisfy the Court that your offending was causally connected to mental illness rather than to consumption of alcohol or medication.
[4]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102.
Considering s5(2H)(c)(ii):
89In a letter to the Court from the Cobram Medical Clinic dated 24 February 2023, Dr Christina Dumitrescu outlined that you have undergone an inpatient detox from alcohol, and reduction of most of your opiate medication. You remain on this medication, but a much smaller dose than previously taken by you. The long-term plan would be to reduce this further.
90Your current list of 13 prescribed medications is outlined, including Jurnista, 8 milligrams, being one tablet daily and Valium, 5 milligrams, one tablet twice a day.
91In the recent report prepared by Ms Beer she disclosed that your current diagnoses are, namely:
· a neurocognitive disorder, mild to moderate, multifactorial
· Depression
· Alcohol Use Disorder, presently abstaining
92She wrote that you receive support through the NDIS and see an occupational therapist. Your full-scale IQ was estimated to be within the extremely low range of intellectual functioning, exceeding that of approximately less than 0.3 per cent of individuals your age. In her opinion, you have managed periods in your life where there have been adequate structure and routine.
93Your counsel relies on Ms Beer's final assessment that you experience substantial limitations in your capacity for thinking and reasoning suggestive of significant cognitive impairment in the mild range of deficit.
94I do not accept that this amounts to a finding that your mental functioning is impaired or that there is sufficient cogent evidence to support s5(2H)(c)(ii).
95Mr Jackson decided that it was not possible to give any opinion regarding your cognitive capacity at the current time.
96Further, he outlined that while you had sought to be assessed on two separate occasions, he was not able to produce a valid neuropsychological profile.
97On the first occasion you had taken 20 milligrams of Valium and 30 milligrams of OxyContin as well as other medication. This raised concerns about the validity of the assessment, as the medications can all significantly affect your cognition.
98On the second occasion you were going through withdrawal. He opined that if an appropriate neuropsychological assessment was to take place, it could only be considered if you were 'not taking either medication and had not been doing so for at least a period of six months'. He found that it was not possible to give any opinion regarding your current cognitive capacity.
99Dr Triglia also outlined that with ongoing benzodiazepine and opiate use and intermittent alcohol use, it is difficult to clearly ascertain whether you do in fact have underlying cognitive problems or an acquired brain injury.
100I note that you have now ceased using alcohol but remain taking reduced amounts of Jurnista and Valium, as well as numerous other medications.
101When the report from Ms Beer was sought, she was provided with three letters of referral from Dr Sheppard. However, the reports from Mr Jackson and Dr Triglia were not provided. She was unable to take them into account when making her final assessment.
102Ms Beer noted that you were currently taking Epilim, Escitalopram, Valium and Nexium (webster pack). It is not clear in the report from Ms Beer whether she was aware of all your current medications and whether the medication that you had previously taken had any effect on your assessment.
103When assessing your cognitive function, I take into account the opinions provided by Mr Jackson and Dr Triglia, that the reliability of your assessment is affected by your current and past use of medication.
104I am unable to be satisfied to the requisite standard that you have impaired mental functioning that comes within the required definition, or in particular, that it can be characterised as a significant disturbance. I am not satisfied that it would result in your being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
Considering s5(2H)(e):
105Your counsel has relied on several factors in combination, namely:
· a chronic back injury that has required treatment with large amounts of Oxycontin to a level that it forms an addiction
· an alcohol addiction
· an underlying low cognitive function.
· at the time of offending, depression, and anxiety to an extreme level.
· the progress you have made since you have been receiving treatment. With the receipt of proper assistance and treatment your community function has improved.
· You have remained offence free for a substantial period.
106Your counsel outlined that 'it is almost the perfect storm' and that it is rare. Further, that it is substantial, compelling, and exceptional. To ignore your personal circumstances would be to ignore the factors that are at play in supporting this argument. Nearly four years have passed since this incident occurred. You have now totally withdrawn from alcohol use.
107It is conceded that the nature and circumstances of the offending are serious. However, it is submitted that in all the circumstances, a community correction order is the appropriate disposition.
108The prosecution position is that the high threshold of substantial and compelling circumstances that are exceptional and rare have not been met in this case.
109The section directs that the matters you rely on, which are in effect your personal circumstances, must be given less weight than other matters, such as the nature and gravity of your offending when considering sentence. Further, I must not have regard to your prospects of rehabilitation. While these factors in combination with your other circumstances do arouse sympathy, I am not satisfied that your circumstances are sufficiently substantial and compelling, nor that they are exceptional and rare.
110The intention of Parliament is clear from the language used. My sentencing discretion in relation to Charge 1 has been pared back by Parliament. I am not satisfied that you have established that the sentence I should impose should not be an immediate term of imprisonment.
111In relation to the two other charges that are before the Court, general deterrence, specific deterrence and protection of the community are still relevant. Your conduct since the time of this offending is also relevant when considering your prospects of rehabilitation, which have significantly improved.
112Your counsel relies on the submission that limbs five and six of Verdins[5] are enlivened. The prosecution has not disputed that these factors may apply.
[5]Ibid.
113In January 2021, Mr Cummins said that you presented as being of low-level intelligence and that your presentation was most consistent with a Major Depressive Disorder. He would expect that your mental health would inevitably deteriorate if incarcerated.
114In September 2022, Dr Triglia noted that you meet the criteria for a persistent Depressive Disorder. Given your chronic mood difficulties, possible acquired brain injury and use of opiate and benzodiazepine medication, a period in custody would weigh more heavily on you than on someone without these conditions. You would be at risk of a deterioration in your depressive symptoms, particularly if being in custody resulted in a loss of your accommodation and supports when released back into the community.
115However, when discussing your previous sentences of imprisonment, you told Dr Triglia that you have previously coped well with being in custody and denied having self-harmed or required psychiatric care at these times.
116Ms Beer stated that a custodial sentence would place you at significant risk of being mistreated by others.
117I accept that a custodial sentence may weigh more heavily on you than someone without these conditions and that there is a risk of deteriorating mental health, which enlivens the fifth and sixth limb of Verdins. I take them into account.
118I take into account the maximum penalties for each offence and the principle of totality. I have considered current sentencing practices.
119Balancing these factors as best I can, I sentence you as follows.
120On Charge 1, you are convicted and sentenced to five (5) months' imprisonment.
121On Charge 2, you are convicted and sentenced to seven (7) days' imprisonment.
122On Charge 3, you are convicted and sentenced to one month imprisonment.
123I direct that all sentences are to be served concurrently. That is a total effective sentence of five (5) months.
124I enter in the records of the Court that you have served pre-sentence detention of one day.
125The declaration I make under s6AAA is had the matter not proceeded as a plea of guilty on the current indictment, I would have sentenced you to a period of imprisonment of nine months.
126Mr Fitzpatrick, would you like to have a quick word to Mr Scott before he steps down?
127MR FITZPATRICK: Yes, Your Honour. Thank you.
128HER HONOUR: Mr Fitzpatrick, I am going to ask that the letter from the Cobram Medical Clinic be provided to Corrections, before your client goes downstairs.
129MR FITZPATRICK: Thank you for that, Your Honour.
130HER HONOUR: I think it's important that a formal list of his current medication is available immediately. It will be printed off and given to Corrections to take downstairs.
131MR FITZPATRICK: Thank you, Your Honour.
132HER HONOUR: Do you want any of the other medical reports to go?
133MR FITZPATRICK: I think it would assist, Your Honour, given that he does have, in particular the back complaint, Ms Beer's report - although Your Honour doesn't accept it for other matters - it does give a good history in relation to his previous admissions - - -
134HER HONOUR: Yes.
135MR FITZPATRICK: - - - as well as the issue with the back, so I think that would assist Corrections.
136HER HONOUR: All right, so just Ms Beer's report?
137MR FITZPATRICK: Well the other reports would be of little assistance, given that he was not in a position to actually assess them.
138HER HONOUR: All right, very well. Ms Beer's report, which is dated February 2023, is to be provided and we will send that down.
139MR FITZPATRICK: Yes, Your Honour. I thank you for that.
140HER HONOUR: Thank you. I might just ask the Corrections Officer. Sir, my associate will hand over the list of the updated medication report, but in relation to a psychological assessment, that does need to be provided. Would someone be able to come back and pick it up from here?
141CORRECTIONS OFFICER: Yes, not a problem. We can come back up, Your Honour.
142HER HONOUR: All right, thank you. Thank you, Mr Scott, you are excused.
143Thank you both, I will leave the Bench.
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