R v Cole
[2017] ACTSC 404
•15 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cole |
Citation: | [2017] ACTSC 404 |
Hearing Dates: | 9 August and 13 November 2017 |
DecisionDate: | 15 December 2017 |
Before: | Burns J |
Decision: | See [38] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – charge of murder – reasonably significant prior criminal history – CADAS Report – Pre-Sentence Report – high risk of reoffending – objective seriousness – lack of remorse – moral culpability not lessened by reason of effect of alcohol and drugs – significant utilitarian value of plea of guilty – difficult to assess prospects for rehabilitation – term of imprisonment imposed |
Parties: | The Queen (Crown) Scott Cole (Offender) |
Representation: | Counsel Ms M Jones (Crown) Mr S Whybrow (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender) | |
File Number: | SCC 183 of 2016 |
BURNS J:
Scott Cole, on 2 March 2017 you entered a plea of guilty to one charge alleging that on 29 February 2016 you did murder Jason Hollingshed. At that time, your trial was fixed to commence on 29 May 2017. You were originally arrested on 29 February 2016, and charged with murder in the Magistrates Court on 1 March 2016. At that time bail was refused. You have remained in custody since 29 February 2016. On 22 March 2016 you entered a plea of not guilty, and on 15 August 2016 you were committed for trial to this Court.
After you entered your plea of guilty there was a delay occasioned by difficulty in arriving at an agreed Statement of Facts, and some difficulty encountered by your lawyers in taking instructions from you. The sentence hearing commenced on 9 August 2017 with the taking of evidence concerning the one remaining aspect of the Statement of Facts which remained in dispute. I will return to that issue shortly. It was not possible to complete the sentence hearing on 9 August 2017 and at your request I adjourned the proceedings to enable a report to be prepared by a forensic psychologist. As it transpired, no such report was ultimately tendered. The sentence hearing continued to finality on 13 November 2017, at which time I adjourned the proceedings until today to pass sentence.
At the time of this offence, you had been living at the Stuart Flats in Griffith for about five years. You were residing in unit 8 of Block 6. The victim was also a resident of the Stuart Flats and resided in unit 9 of Block 6. You and the deceased were once friends, however there had been a falling out in early 2015 and thereafter your relationship became unfriendly. Although you were neighbours and would for that reason often encounter each other, you did not associate with one another from early 2015. At the time of this offence, you were in a relationship with NU. It appears that the falling out between yourself and the deceased occurred after the deceased made a lewd comment to you about NU, which you resented.
The deceased was friendly with DH. You often made derogatory remarks to DH about the deceased. The deceased complained to DH that you had on a number of occasions threatened to kill him and that you would come past his unit and kick his door.
Both your unit and that of the deceased were located on the third floor of Block 6. Directly below unit 9, UI lived in unit 6. UI was on friendly terms with both you and the deceased.
On the morning of 29 February 2016 the deceased and UI travelled to the Canberra Hospital to collect their doses of methadone. The deceased then returned to the Stuart Flats. You were also on a methadone program and you received your methadone dose at a different location to the deceased and UI at about 7.40 am that day. You then attended a chemist where you collected a script of Valium before you returned to the Stuart Flats. At that time you were prescribed five Valium a day. Between 8.30 am and 9 am you consumed some Valium. At about 9 am you and NU met with UI in unit 6 and started drinking alcohol.
Between about 9 am and 9.30 am the deceased entered UI’s unit while you and NU were present. The deceased had a brief conversation with UI and handed him some money. You and the deceased did not speak to each other.
At about 10 am the deceased left the Stuart Flats to meet DH in Civic. They met at around 12 pm. The deceased had taken out a $500.00 loan that day. He told DH that “Scotty, his girlfriend and another guy were angry at him because he wouldn’t give them a shot and they knew he had just got his loan”, and that he had told you to “fuck off”. The deceased had planned to stay with DH that night, but decided to return home to make sure that his apartment had not been damaged. After lunch he returned to the Stuart Flats.
You had lunch in a community room located at Block 6 of the Stuart Flats. After that you returned to UI’s unit. The Crown alleged that some time prior to 3 pm you left UI’s unit saying that you were going to see the deceased. It further alleged that you then went upstairs to the deceased’s unit and pulled the screen door to the deceased’s unit off its hinges. The deceased was not home at this time. This was the aspect of the Statement of Facts that you disputed. You disputed that you had damaged the screen door to the deceased’s unit. Having heard evidence on this issue, I am not satisfied that the prosecution has proved that you did in fact damage the screen door to the deceased’s unit. It is clear, however, that somebody did damage the screen door to the deceased’s unit on 29 February 2016. After returning to UI’s unit, you continued to drink with UI and NU. At about 3 pm the three of you attended a nearby supermarket to purchase more alcohol, and then returned to the Stuart Flats. UI then went to visit another resident at the Stuart Flats, while you and NU waited in the common areas of Block 6 for UI to return. You intended to continue drinking in UI’s unit.
At about 3:30 pm the deceased arrived back at the Stuart Flats and walked past you and NU in the stairwell of Block 6. Upon arriving at his unit the deceased noticed that the screen door had been removed from its hinges, and he yelled out “What the fuck has happened to my screen door?” You responded by saying “I don’t know”. The deceased became upset and raised his voice, and accused you of damaging the screen door. You, annoyed by the deceased’s comments, ran upstairs to confront him. You and the deceased argued on the top landing for about 10 seconds, before continuing to argue and swear at each other inside the deceased’s unit. You grew angry and said to the deceased “Fuck you cunt”. You then returned to your unit and obtained a large black handled steel kitchen knife with a 20 cm blade. You returned to the deceased’s unit and stabbed the deceased with the knife repeatedly, predominantly in the neck, torso and upper limbs. The deceased attempted to ward off the attacks only to suffer further wounds. The stabbing blows were delivered with force. The deceased fell to the ground in front of the kitchen, and you stabbed him in the neck while he was on the ground, penetrating through to the floor beneath. The force of the stab caused damage to both the rug and a tile beneath the deceased’s body.
The deceased suffered multiple sharp force injuries to his neck, face, back, abdomen, upper limbs and right thigh, including a through wound of the neck exposing the trachea. As a result of the stabbing the deceased suffered acute blood loss, causing his death.
When UI returned to his unit, NU told him that you had just stabbed the deceased. UI walked up the stairs and entered unit 9 and saw the deceased lying on the floor in a pool of blood. At that time you were present. UI told you that you needed to call the police and the ambulance. He then walked downstairs to his flat.
You then returned to your own unit, went to the kitchen sink and washed the knife with dishwashing liquid. You then placed the knife in a kitchen drawer. You went into the bathroom/laundry area and washed your face, which had the deceased’s blood on it. You removed your bloodstained items of clothing, placing them in a laundry basket. You also removed your runners, which had the deceased’s blood on the soles, and placed them next to the laundry basket. You then inflicted cuts to your arms and face to make it appear that you had been attacked by the deceased. As a result of your movements, the deceased’s blood was spattered around your unit.
Meanwhile, NU became scared and distressed and left Stuart Flats and drove to her sister’s residence in Banks. At 3:59 pm NU’s sister called ambulance services to report that someone had been stabbed at Block 6 of Stuart Flats. Police were also subsequently notified.
At about 4:27 pm NU spoke to you on the phone. You cried and said words to the effect of “What the hell has happened?” At about 4:30 pm police arrived and proceeded to Block 6. As they reached a landing between the middle and top floors Detective Sergeant Saunders announced police presence, at which time you walked up the stairs towards them, and had the following conversation with the Detective Sergeant Saunders:
You: “Is he dead?”
Detective Sgt Saunders: “Who are you?”
You: “I’m Scott Cole. Is he dead?”
Detective Sgt Saunders: “Is who dead?”
You: “The maggot”
Detective Sgt Saunders: “What unit?”
You: “Unit nine. I fucking stabbed him. I hope he’s dead.”
Police then entered the deceased’s unit and found him lying prone on the floor. Ambulance officers entered and found that the deceased was dead. Two police officers remained with you while other police and ambulance officers entered the deceased’s unit. While you are waiting you said in the presence of police “Is he dead? I hope he’s fuckin’ dead. Teach him to come at me.” You were arrested and handcuffed and taken to a police vehicle while at the police vehicle you said words to the effect of “I did the right thing”. You also made mention of your falling out with the deceased over something the deceased had said about your girlfriend.
At 5:50 pm, after being conveyed to the ACT Watch House at the City Police Station, you participated in an interview to administer your rights, assess your fitness to be interviewed and request your consent to undergo certain forensic procedures. During the course of this interview you made statements to the effect that the deceased had deserved everything that he got, that you hated the deceased and that you should have “ripped his fucking head off”. You also made statements to the effect of that the deceased had “come at you”, suggesting that he had attacked you. You later participated in a forensic procedure, but refused a formal police interview.
An examination of your unit resulted in the black handled kitchen knife which you had used to stabbed the deceased being located. The knife had been cleaned, and the tip of the knife was slightly bent. Forensic testing of the knife located the victim’s DNA on the inside of the knife handle. Other material was found which linked you to the death of the deceased, but it is unnecessary to refer to this in any greater detail.
On 26 April 2016 you contacted ACT Police operations and advised that you wanted to speak to the police investigating the death of the deceased. On 28 April 2016 police attended the AMC to meet with you. You participated in a recorded interview. During a lengthy interview you made full and extensive admissions to stabbing the deceased to death and attempting to cover it up. You told police that you were annoyed with the deceased because he was whinging about his screen door, so you went to your flat, obtained a knife and stabbed him to death. You told police that you then went home and cleaned yourself and the weapon. You also initially told police that you had received some injuries during the altercation, indicating some cuts to your arm and some scratches to your face, but you later admitted that those injuries were self-inflicted with a view to making it appear that the deceased had attacked you and you had been defending yourself.
Prior criminal history
You have a reasonably significant prior criminal history extending back to [redacted]. You have multiple prior convictions for serious property offences, but also some convictions for offences of violence. On 21 September 1994, you were sentenced in this Court to two years imprisonment for offences of unlawfully confining a person, making a threat to kill and using an offensive weapon likely to cause grievous bodily harm. On 14 December 1995, you were sentenced to one month imprisonment in this Court for an offence of assault. On 10 May 2011, you were convicted and sentenced to imprisonment for one year and nine months in this Court for an offence of assault occasioning actual bodily harm. On 25 May 2013, you were convicted in the Magistrates Court of an offence of possessing a knife without a reasonable excuse.
The Crown provided me with information with regard to some of these prior offences. In particular, I was provided with a Statement of Facts and sentencing remarks with regard to the offence of assault occasioning actual bodily harm, for which you were sentenced on 10 May 2011. That offence had a number of similarities to the present offence. On 31 August 2010, you had consumed alcohol and Valium. The victim was the brother of your de facto partner. You attacked him with a knife and stabbed him in the back. The victim also sustained a further minor wound to his chest during the subsequent struggle over the knife. I was also provided with a Statement of Facts regarding the offences of unlawful confinement and using an offensive weapon, for which you were sentenced in 1994. Relevantly for present purposes, those offences also involved you using a knife against your victims, albeit that on that occasion it was only used to threaten your victims.
You are not to be punished twice for the offences which you have committed in the past. Your criminal history does not aggravate the objective seriousness of the present offence. Your criminal history disentitles you to any leniency with respect to this offence, and it is also relevant to determining the weight to be given to specific deterrence, rehabilitation and the need to protect the public in sentencing you for the present offence. What your record does reveal is that you have a history of violence, particularly when you are affected by alcohol and drugs, and that you also have a history of resorting to the use of weapons.
CADAS Report
A CADAS report dated 9 November 2017 was tendered at your sentence hearing. You are 42 years old and you were born in the outer western suburbs of Sydney. You moved to the ACT in 1981 with your family. Your father continues to reside in the ACT and visits you every three months. Your mother passed away three years ago from cancer. You have a sister who lives in Newcastle with whom you have limited contact. You reported having been in a 15-year relationship up until 2011 and you remain friendly with your former partner. You remained in education until year 10, although you moved between a number of schools due to your behaviour. You were intermittently employed after leaving school, but you have been mostly unemployed.
You reported having Hepatitis C, but you are currently not being treated for this condition. You reported having been diagnosed with Bipolar disorder in 2011 and having been treated for that condition by City Mental Health Services at that time. The report also noted that there is an alternative diagnosis of Borderline Personality Disorder. You reported that you are not currently receiving medication. You have apparently attempted suicide on two occasions, once in 2010 and once in 2012. You told the author of the report that you have no current thoughts or intentions of self‑harm. You are not currently seeking or accepting any mental health counselling or treatment. I note at this point that no evidence relevant to your mental health was put before me, and there is nothing to suggest that this offence was in any way related to any mental health condition from which you may have suffered. There was also no suggestion that any mental health condition from which you may suffer cannot be treated in custody or will make incarceration more difficult for you.
You told the author of the report that you were heavily intoxicated with alcohol and benzodiazepines at the time you committed this offence and that you have limited memory of the incident. Whilst you reported your first use of alcohol being at age 12 you only began to drink problematically when aged 39. In the three months prior to this offence you reportedly consumed two 750 mL bottles of vodka a day. You first used cannabis at age 14 and became a regular user of that substance from age 17. You first used amphetamines when you were 35, and up until the time of your arrest you continued to use that substance three times a week. You have also used heroin in the past. Prior to being remanded in custody you were taking five two milligram tablets of Valium a day for anxiety. You told the author of the report that you have been on and off the methadone program since you were 19 years old. You are currently receiving 120 milligrams of methadone a day in custody.
Pre-Sentence Report
A Pre‑Sentence Report dated 1 November 2017 was also tendered. The report notes that since you were remanded in custody in March 2016 you have been disciplined for fighting, refusing a drug test and possession of contraband.
You reported a stable upbringing until the age of 15, when you said that your father informed you that he was not your biological father. Your father reportedly met your mother when you were approximately six months old and he officially adopted you when you were two. You stated that you have never met your biological father.
You said that it was difficult for you to accept this information and it negatively impacted on your relationship and ongoing contact with your parents. You said that you ran away from home several times and eventually left the family home at 15 years of age and spent time living with family interstate, in juvenile detention and youth refuges. Your mother passed away in 2014, but you continued to remain in contact with your father, although your father has described this relationship as strained and distant. You have had no contact with your sister since your mother's funeral in 2014. You are currently single and have no children.
Before being remanded in custody you were receiving a disability support payment due to your mental health issues. You reported that many of your companions and acquaintances in the community are illicit substance users. You confirmed a long history of polysubstance abuse. The report also confirms your limited history of contact with ACT Mental Health. During your current remand period you were referred to the forensic mental health team, but this referral was closed on 25 July 2017 after you refused to see the team on multiple occasions.
You told the author of the report that you could not recall many of the details of the offence. However, you stated that you agreed with the case statement and accepted responsibility for your actions. You acknowledged the seriousness of the offence and stated your actions were not planned. You referred to a strained relationship with the victim, however, offered no justification for your actions.
Objective seriousness of the offence
You were assessed as at high risk of general reoffending due to your criminogenic risk factors, including your alcohol and illicit substance use, mental health and antisocial attitudes. All offences of murder are inherently serious offences. This is emphasised by the maximum penalty of life imprisonment prescribed by the legislature, but the maximum penalty is not a mandatory penalty, and in those cases which do not demand the imposition of the maximum penalty it is necessary to consider the features of the offence to determine what penalty less than life imprisonment is appropriate for that particular offence. In all cases of murder, the death of the victim is by definition a common feature. As such it cannot simply be the death of the victim which demands the imposition of the maximum penalty. There must be circumstances surrounding the crime itself demonstrating such heinousness as to demand the imposition of the maximum penalty. In my opinion, the present offence does not reveal such circumstances, albeit that your moral culpability for this offence is high. I note also that the Crown did not submit that this was an offence which called for the maximum penalty. The present offence is, however, one which calls for a very lengthy term of imprisonment.
In determining the objective seriousness of this particular offence, I take into account the following matters:
1. firstly, you had an intention to kill the victim as opposed to simply inflicting grievous bodily harm;
2. secondly, the offence took place in the home of the victim, where he was entitled to feel safe;
3. thirdly, you used a potentially lethal weapon, being a large knife;
4. fourthly, you inflicted multiple wounds on the victim, including when he was helpless on the floor;
5. fifthly, the victim had no opportunity to protect himself as he was unarmed and defenceless;
6. the sixth matter that I take into account is that your actions were entirely unprovoked. While I am not satisfied that you damaged the deceased's screen door, I am also not satisfied positively that you did not. I am simply unable to say which is more probable. In any event, as your counsel sensibly conceded, any belief by you that you were being wrongly accused cannot be said to mitigate your actions.
7. The seventh matter which I take into account is that the offence occurred in the context of longstanding animosity towards the victim;
8. The final matter which I take into account is that whilst there was no significant planning or premeditation your actions were not entirely spontaneous. You left the victim's unit and returned to your own unit to obtain the knife and then returned to the victim's unit to kill him. As such, there was a short period during which you had an opportunity to reflect upon your proposed actions.
I would assess the objective seriousness of the present offence as in the mid to upper range of such offences. I do not accept that your moral culpability is lessened by reason of the effect of the alcohol and drugs you consumed prior to this offence. I am satisfied that you were aware before this offence that you had a tendency to behave aggressively when you mixed alcohol and drugs, including Valium.
Immediately after the offence you demonstrated no remorse for your actions. You did not attempt to call an ambulance or the police. Instead you immediately tried to cover up what you had done. You then cut your arms and face to make it appear that you had been attacked by the deceased. While you made full admissions to a number of police officers at the scene, these admissions are not characterised by remorse. These admissions can be characterised as justifying your actions and denigrating the deceased.
While you accepted responsibility for your actions when speaking to the author of the Pre‑Sentence Report, the report does not indicate any demonstration of remorse on your part. You were charged with the offence of murder on 1 March 2016, and on 15 August 2016 you were, as I have already said, committed for trial to this Court. On 12 December 2016, a trial date of 29 May 2017 was allocated. It was not until 2 March 2017 that you entered a plea of guilty. I am unable to find that your plea of guilty demonstrates any significant remorse for your actions. I accept that your plea, nevertheless, had a very significant utilitarian value and saved the community the cost of a potentially lengthy trial. Your plea, however, cannot be said to have been an early plea.
It is difficult to assess your prospects for rehabilitation, particularly as you are not likely to be released from prison for many years. At the present time, bearing in mind your age, your history and your lack of engagement with appropriate services in custody, I would assess your prospects for rehabilitation as poor. I acknowledge, however, that over the period which you will be required to serve in custody that may change. At the present time you clearly present as a danger to the other members of the community, particularly when affected by alcohol and drugs.
In my opinion, but for your plea of guilty a sentence of 24 years imprisonment would have been appropriate. I will reduce that to 21 years imprisonment to reflect your plea of guilty.
Sentence
I record a conviction on the charge of murder (CC2016/2632) and you are sentenced to 21 years imprisonment, commencing on 29 February 2016 and expiring on 28 February 2037. I set a non-parole period of 17 years and nine months, commencing on 29 February 2016 and expiring on 28 November 2033.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 21 February 2018 |
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