Director of Public Prosecutions v Scott and Scott

[2023] VCC 823

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01674
CR-21-01675

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN GERARD JOSEPH (SCOTTY) SCOTT
ADRIAN JACK SCOTT

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JUDGE:	His Honour Judge Moglia
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2023
DATE OF SENTENCE:	22 May 2023
CASE MAY BE CITED AS:	DPP v Scott and Scott
MEDIUM NEUTRAL CITATION:	[2022] VCC 823

REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence – guilty plea (Scotty Scott) – plea following trial (Adrian Scott).

Catchwords:              Sentencing – damaging property – home invasion – intentionally causing serious injury – intentionally causing injury – single incident – equal participants in offending – significant degree of concurrency – rehabilitation moderate – brain injury not substantial contribution to offending – general deterrence.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); 5(2H)(c).

Cases Cited:Verdins v R (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169.

Sentence:Total effective sentence Scotty Scott three years with non-parole period of one year and 11 months; 6AAA: three years three months; total effective sentence Adrian Scott six years with non-parole period of four years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	P. Teo	OPP
For Scotty Scott	S. Collins	VLA
For Adrian Scott	M. Greener	Stary Norton Halphen

HIS HONOUR:

1Scotty Scott, you have pleaded guilty to damaging property, home invasion and causing injury intentionally arising out of a single incident on 15 July 2019.

2Adrian Scott, you were found guilty by a jury of damaging property, home invasion and causing serious injury intentionally arising out of the same incident.

Summary of offending

3The bases for your guilty plea, Scotty Scott, are set out in the summaries of prosecution opening dated 9 May 2023 (for plea) and the summary of evidence in relation to the trial of Adrian Scott was set out in the Summary of Prosecution Opening dated 8 November 2021 (for trial).

4In summary, during the afternoon of Sunday 13 October 2019, you Scotty Scott and your partner went to the Seaford Hotel public bar from around 4:30pm, where you were drinking.

5At about 6:45 PM you got into an argument with Raymond Hawkes to whom your partner had introduced you at some stage a few months prior. The argument was about your treatment of other patrons over a pool cue.

6Mr Hawkes pushed you and you pushed him. He fell to the ground and you punched him. You were separated by other patrons and asked to leave, which you did. You and your partner went home to East Road, Seaford, about 500 metres away from Mr Hawkes' home.

7By 8 PM that night, you were speaking to your son, Adrian Scott by phone, over multiple calls. By about 8:30 PM he was driving from his home near Ferntree Gully to yours, arriving at about 9 PM. Within minutes, he drove you to the Hawkes’ address.

8You, Adrian Scott, did not know the Hawkes, but went along with your father.

9As you both approached the Hawkes front door on foot, you Adrian Scott were holding a steel bar and you Scotty Scott were right behind him. The sensor light at the front door turned on and the dog started barking.

10Mr Hawkes came to the front door to investigate and stepped outside. He saw you both and you Scotty Scott said, “that’s him, get the cunt!”

11Mr Hawkes retreated, trying to pull the security door closed. You Adrian Scott, however, hit him repeatedly on his forearm and wrist with the steel bar, preventing him from doing so.

12Then Mr Hawkes tried to shut the front wooden door, while you were both kicking it. He couldn’t get it closed and you both forced your way in, trespassing, intending to continue your assault on him. In doing so, you both caused damage the door (Charge 1, damaging property, and Charge 2, home invasion).

13Mr Hawkes fell to the floor and you, Adrian Scott, continued to hit him with the steel bar, this time to the back of his head. You both kicked him.

14In total, you, Adrian Scott, caused serious injury consisting of three lacerations to the back of Mr Hawkes head, a fractured finger on his left hand and multiple abrasions.  The injury to the finger was assessed as causing ongoing functional impairment, including pain, stiffness and a reduced range of movement.  Well after a year since the offence, Mr Hawkes still suffered limited movement in his hand with potential for further necessary surgery (Charge 3, intentionally causing serious injury (Adrian Scott)).

15You Scotty Scott were complicit in causing injury only to Mr Hawkes. The prosecutor does not allege that you knew or intended the full extent of the injury to the finger (Charge 3 is intentionally causing injury (Scotty Scott)).

16Mrs Hawkes was present while all this occurred and called police. As she did so, you both dragged her husband out of the front door and along the concrete path. Mrs Hawkes followed you and threw a watering can at you, and then you both ran off.

17Raymond Hawkes made a victim impact statement dated 1 May 2023 (Exhibit A). He stated that he still to date struggles with his hand and is therefore unable to work. He has ongoing treatment and may still require further surgery. He is constantly reminded of the attack when he sees his multiple scars. He has felt afraid even when in his own home and powerless to protect himself and his wife. He has had to attend counselling and is prescribed medication for depression.

18Heather Hawkes made a victim impact statement dated 1 May 2023 (Exhibit B). She stated that she is still scared at night because of what she witnessed you do to her husband in their home. She only sleeps well when she is away from their home of 24 years. She is anxious, has required counselling and has had to care for her husband who is still affected by what you both did.

Procedural history

19Scotty Scott, you were arrested 5 days after the incident on 18 October 2019. Police interviewed you about the incident and you said you had no memory of the events at the hotel, that you didn’t know anyone by the name of Raymond Hawkes and you made no comment about attending his home or assaulting him there.

20You were granted bail two days afterwards, and maintained your innocence until you offered to plead guilty on 6 May 2022, six weeks before you were due to commence trial.

21You have remained on bail since then until I remanded you seven days ago at the conclusion of the plea hearing on 15 May 2023.

22Your plea represents your acceptance of responsibility, albeit after a long delay, your willingness to facilitate the course of justice and, to a degree, remorse – I accept that you wish it didn’t happen. Your plea avoided the need for a trial on your part at a time when this Court faces a large backlog of trials and so you will receive an extra reduction in sentence for this.

23Adrian Scott, you were arrested and interviewed on 9 April 2021, following extensive investigation, including DNA analysis on a cigarette butt found at the Hawkes front door that night.

24Police interviewed you and you told them you do not know where you were on the night, that you had never been to the Hawkes House, that you had no idea about what went on there and denied driving your vehicle there on the evening.

25You conducted a contested committal hearing on 6 August 2021 and remained on bail until I remanded you at the conclusion of your trial on 31 October 2022.

Personal circumstances

26Scotty Scott, you were 59 when you attacked Mr Hawkes and are now 62 years old.

27You grew up in country Victoria and following the death of your father when you were 8 years old you were moved into care at a St Vincent de Paul Boys Home that you remember being stable.

28When you were 13 years old, you fell from a roof and were hospitalised in a coma for about 3 months. You sustained deafness in your right ear and nerve damage to the right side of your face, double vision, balance problems and some reduced cognition.

29You tried to persist with school but found it too hard. From about age 15 when you went to work in an abattoir and other places into your 20s. But work and your other circumstances were unsettled and unstable, in part due to the troubles caused by your injuries.

30You moved away from St Kilda, to get away from trouble in your mid 20s. You were in a relationship, moved to Ferntree Gully, built a house and had a son when you were 29. You had your second son, Adrian, your co-offender, when you were 35. You have settled for the last 18 or so years in your house in Seaford. You are able to manage your day to day matters but have been on the pension since your 40s.

31You have agreed that until the end of 2019, when this incident occurred, you had been drinking excessively for about 15 years. But since 2020, you have stopped doing so.

32Your criminal history goes back to age 18 in 1979 when you were in trouble for stealing cars and then armed robbery for which you were put into youth detention. In the early 1980s you got into more trouble including assaults and then in 1985 you were gaoled for burglary and theft when you were 25. You were gaoled for a day in 1997 at age 37 for resisting police.  Then in 2007 you were fined for growing cannabis. By your own experience you know the serious consequences that flow from breaking into someone else’s property. While your offending history is relevant, you have been able to avoid trouble for very lengthy periods and I do not find that you are a chronic offender, at least in relation to this kind of serious crime.

33Your GP at the SIA Medical Centre, Dr Shanley in a report dated 5 May 2023 (Exhibit S2) stated that he has seen you since March 2019 and perhaps more than 20 years ago but has no records of that time. He finds you to be currently stable, with some sleep difficulties and medicated for migraines and restless leg syndrome.

34Clinical neuropsychologist Dr Kelly Sinclair assessed you and provided a report dated 1 December 2022 (Exhibit S1). She conducted testing on you (17 tests) and reviewed your medical history from Peninsula Health (Exhibit S3) and SIA Medical Centre (Exhibit S4). The prosecutor did not dispute the contents of this report.

35Dr Sinclair describes you as having mild to moderate cognitive dysfunction, short of intellectual disability, in various areas of performance, but not all, likely arising from an acquired brain injury from your fall when you were 13 years old. While you have described recent further cognitive decline over the last few years, this is unlikely to be from dementia, rather from your drinking and poor sleep.

36Your brain injury was assessed as having most impact in reducing your ability to maintain focus, register and remember information and read. Further, it means you are more likely to take longer to complete tasks, communicate in black and white terms, take a concrete approach to solving problems and respond to provocation without considering likely consequences when under pressure. All of these are made much worse by your drinking. Dr Sinclair stated that your brain injury only partially contributed to your offending.

37Dr Sinclair stated that in prison you will likely adjust and learn routines slower than others, struggle to follow complex instructions and be slower to complete tasks. You may be more likely to act impulsively if under pressure or provocation. Prison may cause significant deterioration to your condition, but it is not likely. I will provide Dr Sinclair’s report to Corrections so that her recommendations for your treatment are taken into account.

38Your current partner Julie Parker, step-son Brian Parker and friend Robert Purdue supported you with written references (Exhibit S5).

39Your partner records your support and compassion, including for her mother who suffered with Alzheimer’s disease and her teenage daughter. You go out of your way to help and support them. She has observed the reality of what Dr Sinclair has described about your brain injury. She also reports that you have given up the drink, are a better person for it and are sorry for what happened. She looks forward to you joining her in a new home in the Latrobe Valley.

40Mr Purdie describes you in similar terms and that you have been a mentor for him. He was shocked by the charges and has been impressed by your drive to do better. He, with his wife, your sister Mandy, are important supports for you and will remain so. 

41Mr Parker says that you are exceptionally family-oriented and willing to help others in need. You showed this when caring for Mr Parker’s grandmother. He describes you as having a positive impact on those around you and that this offending is out of character.

42I accept the contents of these references and I trust that the attitudes and skills of which they speak will stand you in good stead upon your release to re-establish a positive life in the community.

43Adrian Scott, you turn 28 years old in a couple of days. You were 24 at the time of these offences.  

44You grew up with what you described as an ‘alright’ relationship with your father and a ‘good’ one with your mother. They separated when you were about 12 and you stayed living with your mother, with sporadic contact with your father – about fortnightly at the time of the offending. You felt loved and cared for and denied any violence, drug use or offending in the home environment.

45You did not enjoy school, but persisted until year 9 when you left and pursued an apprenticeship with a butcher and worked as one for about 10 years until after this incident. You then became the full-time carer for your grandmother after she suffered a stroke.

46Your mother's GP Dr Owen wrote a letter dated 12 December 2022 (Exhibit A1) and an updated report dated 18 May 2023 (Exhibit A5).  The doctor states that you provide significant support for your mother and for her mother.  The doctor says your imprisonment has had a detrimental effect on your mother's emotional wellbeing which the doctor expects will get worse the longer you are away.  So much so is supported by the second letter.  Your counsel has rightly, in my view, conceded that, notwithstanding the difficulties that your imprisonment makes for your family, they are not the kind of difficulties that the courts have described as being exceptional and therefore relevant to reducing your sentence.  I will return to this issue

47You have given various descriptions of your alcohol and drug use over the years, including methamphetamine after the current incident. You have never engaged in counselling although friends have encouraged you to do so. It is not alleged that drug use contributed to your offending, so I make no findings about that one way or another, although it seems you have problems in this area of your life. Since being placed in custody, you have participated in random drug screens, which have been clear (Exhibit A2).

48As for your criminal history, in 2012 when you were 17, you were placed on a youth attendance order for causing serious injury recklessly. Then in 2013 when you were 18, you were placed on another similar order for being drunk in public, kicking and causing injury. This is similar offending to the current matter, but I note that you have not been in trouble for about 10 years

49Psychologist Naomi Cameron assessed you and provided a report about you (Exhibit A3). She suggested that you may have suffered with symptoms of PTSD arising from a motor vehicle accident involving your father when you were a child but that these no longer affect you. She also suggested that you may have some symptoms of adult ADHD but that they do not have any significant impact on your functioning. You are not depressed and are only mildly anxious and stressed. Your counsel did not suggest that any psychological factors played a role in your offending or ongoing imprisonment, which I accept.

50Friends Brodie Tuakeu and Sally Chilcott wrote references about your character and they are Exhibit A4. 

51Mr Tuakau says that you are a supportive friend, you are willing to help others and that you are pro-social.  He has observed you to be a good worker and supportive of other people. 

52Ms Chilcott describes you as hard working and generous, particularly to people who you know.  I accept the contents of those assessments by people who know you well. 

Sentencing issues

53The maximum penalties are as follows:

(a)   Damaging property – 10 years;

(b)   Home invasion – 25 years;

(c)   Causing serious injury intentionally – 20 years; and

(d)   Causing injury intentionally – 10 years.

54Home invasion and causing serious injury intentionally are both category 2 offences under the Sentencing Act 1991, requiring a sentence of imprisonment, not one combined with a CCO, unless specific exceptions apply.

55Home invasion is a truly frightening offence. People are entitled to be and feel safe in their own homes. This offence undermines that right and parliament in creating this offence in 2016 indicated just how grave it is to be regarded. It is a particularly nasty form of criminal conduct. You both knew where you were going and that one of you had a weapon. You acted together to ‘get’ Mr Hawkes. I regard your moral culpability as being high. Any influence alcohol played on the night does not reduce that.

56Intentionally causing serious injury, consistent with its maximum penalty, is very grave offending. To intend to cause injury that is life threatening or that has substantial and protracted consequences to the victim is violence of a most serious kind.

57In this case, it was submitted that the nature of the serious injury to the finger was, relatively speaking, low on the spectrum of the kinds of injuries that can be caused. This is true. This is not a case of enduring brain injury or causing major bodily disability. However, it is still serious and the sentence will reflect this.

58Imposing stern penalties on you both for what you did is required to deter others from doing the same thing.  It is also to make it clear that this behaviour will not be tolerated and it is also my intention to impose just punishment on you both for doing so. 

59You both have relevant criminal histories. But they are dated and neither of you can be said to be continual offenders, or regular violent offenders. Your sentences will aim to deter you from getting into like offending again, but I have not given this, or the need to protect to the community from you, great weight in determining the length of your prison term.

60Clearly, your offending, all arose out of a single incident and I will make orders for a very significant degree of concurrency in order to keep the total sentence proportionate to what happened, in total, on the night.  

61You have both now been in custody during the tail end of the COVID-19 pandemic. I do not find that this has made your time in gaol substantially more difficult, but I have given some weight to the fact that at any time, relevant restrictions and lockdowns may be enforced and that this prospect adds to the burden you face day to day.

62I regard both of your prospects for rehabilitation to be reasonable in light of your offending history and the length of time since any relevant offending, and that there has been no further offending by either of you since this occurred at the end of 2019. 

63Mr Collins for you Scotty Scott submitted that principles 1, 5 and 6 in the case of Verdins[1] applied to your case, as well as the exception in section 5(2H)(c) of the Sentencing Act, which would permit me to impose a CCO or a combination sentence.

[1] Verdins v R (2007) 16 VR 269.

64Mr Collins submitted that your brain injury partly contributed to your offending, particularly your reduced ability to deal with pressure or provocation and your ability to reason or think about consequences or alternatives.  The prosecutor disagreed.  I note that on the night, after the altercation at the pub, you went home, you had time to talk with your son, and that the offending occurred a couple of hours after your altercation with Mr Hawkes at the hotel.  While I accept that your cognitive deficits will have played a role, I find that the effect they had in the context of the contribution made by your drunkenness results in a very moderate reduction only in your culpability. 

65Your counsel also submitted that you will find prison more onerous due to your brain injury.  The prosecutor accepted this but only to a degree.  I agree.  Your abilities to manage in the community and the abilities of Corrections to account for your needs in custody will go some way to cover for any difficulties that you will face but I will reduce your sentence to some degree because of them. 

66I do not accept the submission that prison will have any significant detrimental impact on your condition. Dr Sinclair only suggested that this may occur, but did not say it was likely.

67The requirement to impose imprisonment and not one combined with a Community Corrections Order may be avoided if, according to s5(2H)(c) your impairment, Scotty Scott, substantially and materially reduced your moral culpability or if it results in a substantially and materially greater burden in custody compared to other prisoners without your condition. On the basis of the material and in line with the findings I have just made about Verdins, I do not find that the exceptions to the requirement exist in this case. 

68That is to say, whilst your brain injury partly contributed to your violence on the night, the circumstances in which there was considerable delay between the altercation and your attack on Mr Hawkes at his home, your ability to cope in the community and the opinion expressed by Dr Sinclair, I find that the contribution of your brain injury to your offending and any impact it might have on your moral culpability are not substantial and material.  Similarly, I do not find that the burden in custody that your condition imposes is substantial or material. 

69As to parity between you both, I regard you both as equal participants in this offending, of course, save for the serious injury charge.  I do not regard your criminal histories as providing any real grounds for distinction between you, but I do have regard to your relative ages and health.  Importantly, the matters raised by Dr Sinclair about yours Scotty Scott, are of some significance. 

70An important distinguishing feature between you both is that you Scotty Scott pleaded guilty, whereas you Adrian Scott were found guilty following a trial. 

71In an abundance of caution in relation to you Scotty Scott, I had you assessed and have received an assessment report from Corrections Victoria, including a report from the Mental Health Assessment and Response Service.  Unsurprisingly, the assessment finds you suitable for a Community Correction Order.  However, as I indicated to you at the end of the plea, such suitability does not mean that you will necessarily get such an order. 

72I have considered the assessment, including the mental health report, carefully and I have come to the view that imposing on you a combination sentence or, indeed for that matter, a single CCO, Scotty Scott, would be inadequate punishment in all the circumstances. 

73I was asked to review a range of comparative cases and I have done so.  Whilst I have not, and do not propose to, list all of the cases that I have reviewed, I have reviewed those provided to me by your counsel and other cases reported with the Judicial College of Victoria on the offence of home invasion.  That offence - and this applies to both of you - is a serious one.  Imprisonment terms in recent years have been seen to be as high as eight and nine years. 

74In circumstances where there has not been a confrontation as such and, rather, merely an intention to steal or where there are fleeting engagements, including with some violence, with the occupants of a house, sentences indeed have been lower.  But you both went to this home at night with an intention to assault a man who ought to have been safe and felt safe, and you did so with a weapon causing injury and dragging him from his home.  I do not regard this offending as being at the low level.

75Scotty Scott, I sentence you as follows:

(a)   On Charge 1, damaging property – 1 month imprisonment

(b)   On Charge 2, home invasion – 3 years' imprisonment

(c)   On Charge 3, intentionally causing injury, 8 months

(d)   All of those sentences will be served concurrently, making a total affective sentence of 3 years. 

(e)   I fix a non-parole period of 1 year and 11 months. 

(f)    I declare that you have served 9 days by way of pre-sentence detention and direct that this be reckoned as a period already served under this sentence.

(g) In accordance with s 6AAA of the Sentencing Act 1991, but for your guilty plea, I would have imposed 4 years and fixed a non-parole period of 3 years 3 months. 

76  Adrian Scott, I sentence you as follows:

(a)   On Charge 1, damaging property – 1 month

(b)   On Charge 2, home invasion – 5 years

(c)   On Charge 3, intentionally causing serious injury, 3 years and 6 months

(d)   One year of the sentence on Charge 3 is to be served cumulatively upon the sentence on Charge 2, making a total affective sentence of 6 years. 

(e)   I fix a non-parole period of 4 years. 

(f)    I declare that you have served 203 days pre-sentence detention and direct that this be reckoned as a period already served under this sentence

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