Director of Public Prosecutions v Scutcheon

[2022] VCC 543

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-00481

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRISTIAN SCUTCHEON

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JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 April 2022
CASE MAY BE CITED AS:	DPP v Scutcheon
MEDIUM NEUTRAL CITATION:	[2022] VCC 543

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Taylor
For the Accused	Mr Fitzpatrick

HIS HONOUR: 

1Tristian Scutcheon, on Indictment C2014003.2, you are to be sentence for one charge of armed robbery and one charge of intentionally causing injury.  Respective maximum sentences are 25 and 10 years' imprisonment.  You are also to be sentenced for summary offences of failing to stop on police direction,  maximum sentence, six months imprisonment,  committing an indictable offence on bail and breaching a condition of bail. Both of these offences attract a maximum of three months imprisonment. 

2You pleaded guilty before me on 11 April.  When interviewed by police on the day of your offending, 1 November 2020, you denied knowing your victim and also stated loss of recall caused by drug use.  There was a committal hearing on 5 March 2021, after which you were committed for trial and entered a plea of not guilty to offences of aggravated carjacking and intentionally causing injury.  The first trial indictment alleged both offences against both you and your co-offender, Geoffrey Paul Scutcheon.  There was delay to that trial,  in large part caused by COVID-19 restrictions and that impact upon the criminal justice system.   Ultimately, the trial was listed for hearing at the Mildura County Court circuit.  However, your matter and that of Geoffrey Scutcheon settled on 6 April.  Geoffrey Scutcheon is your father.  The Crown did not proceed against you on the charge of aggravated carjacking.  On 11 April, you pleaded guilty to these indictable offences of armed robbery and intentionally causing injury.

3You receive the benefit of your plea of guilty and that level of cooperation in the proceeding.  It is relevant to the timing of your plea that the matter resolved and the Crown did not proceed against you on the offence of aggravated carjacking.  Your plea has facilitated the interests of justice, accepted responsibility and expressed remorse.  The utilitarian benefit of your plea is the greater in the circumstance of the impact upon the criminal justice system of the COVID-19 pandemic and its restrictions. 

4At your plea hearing, which ran on 11 April, Ms Mahady for the Crown tendered a written Crown opening for plea.  Mr Fitzpatrick, for you, tendered  the forensic psychological report of Warren Simmons dated 6 April 2021, and provided written submissions on sentence. 

5The circumstances of offending are comprehensively set out in the tendered Crown opening, which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put on your behalf, not challenged by the Crown. 

6In October 2020, you were living with your father and family in Linton, not far from Ballarat.  You were aged 22 years.  Your father had known the victim of these offences, Lucas Hester, since school.  In late October 2020, you and he were staying at Hester's home in Ouyen. 

7It is clear that by 1 November, a grievance had developed.  This is apparent in the circumstance of offending and in text messages your father sent to Hester very soon after.  The nature and substance of that grievance is not so clear.  There is reference in the texts to what may be a debt (of perhaps $4,000) owed by him to your father.  I can make no findings on the certainty or validity of that.  It has limited relevance to your role and offending.

8You and Geoffrey Scutcheon had driven a hired vehicle to Ouyen, a red Toyota Corolla.  Lucas Hester owned a green Ford.  On 1 November, it was arranged that the three of you, using both cars, would go to and meet in Mildura.  At Mildura, it was further arranged to travel to Merbein.  Hester was told that it was to visit a relative.  Hester had pulled over in Commercial Road. Merbein to wait, in his car, for you two in the Corolla;  then to follow or get instructions about where to go.  This is where the offending happened.

9The Corolla pulled over nearby.  You went to the driver's side of Hester's car, armed with a crow or jemmy bar.  You swung it at Hester a number of times, striking him.  By arrangement, your father had gone to the passenger side and stood against the door there, preventing Hester from getting out and away.  Ultimately, he was let out.  You drove away, your father in the Corolla, and you in the now stolen Ford.  A nearby resident saw Hester bleeding from the head.  He attended hospital soon after.  He suffered injuries  the main being a gash to the crown of his head, toward the left and rear.  A depositional photograph at p97 shows eight staples.  There is no evidence of further treatment or ongoing symptoms. There is no victim impact statement tendered.

10You are to be sentenced as forming an arrangement with your father to assault Hester and steal his car.  You took possession of the weapon before you went to the car, but unbeknownst to your father.  It must be found that there was some preplanning.  It cannot be found that it was very long;  for example, measured by days before the offence.

11You were intercepted and arrested later that day on the Sunraysia Highway in the township of Donald.  You had been driving the green Ford.  Police had attempted to intercept you in Birchip to the north.  Your attempt to escape that is the summary offence,  failing to stop upon police direction.  You drove at high speed, but ultimately you were arrested in Donald.  You had collided into a telephone pole. 

12The summary matter of indictable offence on bail is the indictable offending against Lucas Hester in Merbein. 

13I also heard Geoffrey Scutcheon's plea on 11 April.  He was sentenced to a three year community corrections order.  That sentence must necessarily be different to yours.  This is for reasons including those related to difference in role and his lack of criminal history. 

14You are now a 23 year old man awaiting this sentence in remand custody.  You have been in custody since your arrest on 1 November 2020.  That is a total, now, of about 18 months.  It has included being on sentence for 11 months of that period.  This was for offending which included reckless conduct endangering life or serious injury and which was prior to this offending.  There was presentence detention declared on that sentence.  The presentence detention applicable for my sentence today is 208 days. 

15You are an Aboriginal mam nn on your mother's side.  You were raised and educated in the Linton-Ballarat area and have two sisters aged 16 and 27 and a brother aged 22.  Your parents separated a number of times, but the relationship has persisted. 

16You described to psychologist, Warren Simmons, a relatively unstable upbringing but spoke positively of your parents, who, you stated, 'wanted the best for you'.  You are close to your brother and sisters.  After leaving prison, you can return to the family home. 

17You left Ballarat High School at Year 9 to commence a carpentry apprenticeship, leaving that after two years.  Your working life has been affected by drug use.  Your last employment was with an uncle in maintenance work.   You began to smoke cannabis for a time at 12,   introduced by older cousins.  You returned to that later in teenage and then,  at about 15, began to use Methamphetamines.  You used intravenously at or from 19.  By the time of this offending, you had developed a daily habit of 3 to 7 grams.  A serious motor vehicle accident about three years ago led to heroin use and dependence, you state initially for pain relief.  You have also used the drug GHB and abused the prescription medication Xanax.  The motor vehicle accident, to which I have just referred, caused, amongst other injuries, a shattered knee requiring screws and plates, and internal bleeding.  Ultimately requiring removal of part of your bowel.  Your knee injury and its aftermath are treated in custody also.  Also, your opiate addition. 

18Forensic psychologist, Warren Simmons, states that you meet the criteria for multiple drug use disorders. 

19Over the past five years, you have been in a relationship with a young, similarly aged woman whom you have known since primary school.  It must be noted that you have been in custody over a good deal of this time.  You do not have children.  Psychologist, Mr Simmons, states no evidence of significant intellectual difficulties.

20Your criminal record filed with the court states five prior court appearances between February 2018,  when you were 19, and March 2020.  These feature driving offences, offences of dishonesty, some of violence, including family violence, and drug offending.  You have received youth justice detention and relatively short sentences in adult prison.  As I have said, after arrest for these matters, you have spent about 18 months in custody. 

21It seems evident that the major factor in causing disfunction and hardship to your life has been drug abuse. 

22Armed robbery is a serious violent offence.  Here during the course of it,  you intentionally caused significant injury using a dangerous weapon.  Whilst you attacked Lucas Hester with that jemmy bar, he was for a time unable to escape from inside his car.  It was brutal and quite cowardly offending. I accept that you were using drugs and affected by that.  However, that is little, really, no mitigation. 

23The circumstances of your offending and that you have relevant, albeit less serious, prior offending make important sentencing considerations and purposes of moral culpability, deterrence - that is both general and specific deterrence - condemnation of the offending, and proportionate punishment of it.  There must be, as is conceded, imprisonment of a head and minimum term.

24However, I also take into account relevant moderating factors.  They include the following. 

25(1)   Your plea of guilty as earlier stated. 

26(2)   Your personal history and circumstances. 

27(3)   You are still relatively young. 

28I find that although your parents and family were supportive and did their best for you, the instability of childhood played a role in your very early introduction to drug use.  This has developed into a factor which has damaged and threatens to ruin your life.  At your age, there should be a sentence which at least allows for the attempt to assist your rehabilitation.  You seem to have family support in that.  Recovery from your drug dependence is critical to it.  I bear in mind your efforts in custody at rehabilitation, generally, and by medication in respect of drug addiction. 

29(4)   There has been some delay and, particularly, the principle of totality should be applied to your sentence.  You have been in custody since arrest on this matter for 18 months.  Further, a significant proportion of your recent years has been spent in custody.  This has been at a young age, from, as I estimate, age 20 in early 2019.  I should impose this sentence, attempting to bring into effect a just total period of custody over that time. 

30(5)   Related to that, I also take into account that your period in custody, past and to come, happens in the circumstances of COVID-19 restriction and the well-recognised impacts on those imprisoned. 

31These matters, in combination, go to reduce your sentence compared to what the objectively seen circumstances of the offending otherwise require. 

32I also bear in mind, if not parity, what should be a just comparison with your father's sentence.  For example, I see it as likely that the grievance felt and which lay behind what was done to Lucas Hester was that of your father rather than you. 

33This, together with the other moderating factors I have raised, can be reflected particularly in the length of your minimum term. 

34Having taken into account what I see to be the relevant matters, I sentence you as follows.  On Charge 1, armed robbery, imprisonment for two years and four months.  On Charge 2, intentionally causing injury, imprisonment for 12 months.  On the summary offences,  two months imprisonment for failing to stop on police direction and one month's imprisonment on each of the offences  indictable offence on bail and breach of a condition of bail. 

35I direct that six months of the sentence on Charge 2 be served cumulatively on the sentence for Charge 1.  That is a total effective sentence of two years and 10 months.  I said a minimum term before eligibility for parole of 16 months.  I declare presentence detention already served at 208 days. 

36Had you not pleaded guilty, I would have imposed under s6AAA of the Sentencing Act a sentence of 4 years with a minimum term of two and a half years. 

37Are there any other orders that I need to make? 

38MR FITZPATRICK:  I don't believe so, Your Honour. 

39MS TAYLOR:  No, I don't believe so, Your Honour.

40HIS HONOUR:  All right, good.  I reflected during my sentencing reasons - although I don't think it matters, given my sentence -  that this may be a category 2 offence.  Am I right about that or not?  I'll look it up.  I have some recollection of it being raised. 

41MS TAYLOR:  Off the top of my head, I don't remember, Your Honour.

42HIS HONOUR:  I've got the book here.  I'll have a look. 

43MS TAYLOR:  I believe that's right, though, Your Honour, (indistinct). 

44HIS HONOUR:  I think it may have been raised during the - just let me - armed robbery, if the offender has with him or her a firearm or the victim has suffered injury as a direct result of it or the offence was committed by offender in company.  No, I think this was raised and it may have been put that it's not a category 2 offence.  I don't know whether I'm mixing it up with another. 

45The offence was committed by an offender in company with one or more other persons.  Well, the armed robbery wasn't committed in company with the other man.  He didn't have with him a firearm.  However, the victim of the offence ‑ ‑ ‑

46MS TAYLOR:  Suffered an injury.

47HIS HONOUR:  ‑ ‑ ‑ suffered an injury as a direct result of the offence or whatever direct result of the offence may mean.  Is it the assault or is it the armed robbery.  It seems to me a pretty refined distinction.  In any event, presuming it to be a category 2 offence, there is not exemption from that and he has received a head and minimum term. 

48If it's not a category 2 offence, a head and minimum term is the required offence, in any event, to meet the circumstances of the offending and his personal circumstances.  So, that may cover it. 

49MS TAYLOR:  Yes, Your Honour.

50HIS HONOUR:  Good, all right.  So, that's all I need to say.  Thank you for your assistance at me and today.  I'll turn everybody off now.  Thank you.

51MS TAYLOR:  Thank you, Your Honour.

52MR FITZPATRICK:  Thank you, Your Honour.  If I could just stay in the lobby so I can quickly talk to him, Your Honour.

53HIS HONOUR:  Yes, all right, yes.  Well, we'll leave.  Do we leave for that?  You want to have a conference with him, is that right?

54MR FITZPATRICK:  Yes, yes, briefly, Your Honour.

55HIS HONOUR:  Yes, all right.  Well, we'll need to leave, all of us. 

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