R v Scarborough
[2000] VSC 276
•26 June 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1424 of 2000
| THE QUEEN |
| v. |
| TOM SCARBOROUGH |
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JUDGE: | TEAGUE, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF SENTENCE: | 26 JUNE 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 276 | |
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CATCHWORDS: Crime – Attempted murder x 3 – Heroin trafficking – Random violence – Road rage – Shooting of police officer – 20y min 15y.
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APPEARANCES: | Counsel | Solicitors |
For the Prosecution | R.A. Elston | Office of Public Prosecutions |
| For the Accused | W.M. Toohey D.A. Dann | Mulcahy Mendelson & Round |
HIS HONOUR:
Thomas Scarborough, you have pleaded guilty to 13 counts. In order to make these sentencing remarks easier to understand, I will now list them as per the presentment, but in short form. Count 1, you damaged a motor vehicle of Lou Piccinin at Brighton on 17 February 1999. Count 2, you assaulted Lou Piccinin at Brighton on 17 February 1999. Count 3, you committed the theft of numberplates of Constancio Fernades at South Yarra on 19 February 1999. Count 4, you assaulted Gino Munari at South Yarra on 19 February 1999. Count 5, you attempted to murder Phong Nguyen at Yarraville on 21 February 1999. Count 6, you recklessly caused serious injury to Ha Vu at Yarraville on 21 February 1999. Count 7, you recklessly discharged a firearm placing Frank Borrello in danger of death at Coburg on 22 February 1999. Count 8, you damaged a motor vehicle of Frank Borrello at Coburg on 22 February 1999. Count 9, you attempted to murder Christopher Dunn at Hawthorn on 23 February 1999. Count 10, you damaged a motor vehicle of Christopher Dunn at Hawthorn on 23 February 1999. Count 11, you attempted to murder Jason Striegher at Heidelberg on 23 February 1999. Count 12, you recklessly discharged a firearm placing five police force members in danger of death at Heidelberg on 23 February 1999. Count 13, you trafficked in drugs of dependence from 31 December 1997 to 23 February 1999.
I will start my summary of the events giving rise to the convictions with those relating to Count 13. You met Phong Nguyen in about the middle of 1996. Subsequently, the two of you met often. You met to engage in heroin trafficking. Over the months the two of you worked together, there were many transactions. You gave Phong Nguyen credit. In February 1999 he owed you about $1600.
Your trafficking in heroin and other illegal drugs was also the subject of evidence from other people who have provided statements to the police. Your trafficking was, in and around 1998, your only source of income. You were able to make it highly profitable. You earned amounts measured in terms of thousands of dollars a week. You spent some of your money in high living and on female companions. You spent some on a high performance car, a Toyota Soarer, also described as a Lexus coup.
On Wednesday 17 February 1999 you were driving that car in Nepean Highway, East Brighton. You resented the way in which a van driver, Lou Piccinin, was driving. Although he was travelling at the speed limit, it appears that he would not move over to let you pass. At red traffic lights the van came to a stop. You brought your car to a stop alongside. You got out of your car. You took out an extendable baton and smashed the rear window of the van. You confronted Lou Piccinin, but chose not to go further. You got into your car and drove off. Those events are the subject of Counts 1 and 2.
On Friday 19 February 1999 you were disturbed whilst using a screwdriver in the Jam Factory car park in South Yarra. You were removing the number plates from a car owned by Constancio Fernandes. A man, Gino Munari, who saw you removing the plates, asked you what you were doing. You abused him and said you would fight him. You held the screwdriver pointed at him as you spoke. You walked off with the number plates. Those events were the subject of Counts 3 and 4.
On Sunday 21 February 1999 you drove to Yarraville looking for Phong Nguyen. You located him sitting in a car with two friends. He was sitting in the driver's seat. From close range you fired several shots at Phong Nguyen with a handgun. Some of your shots hit Phong Nguyen. He suffered injuries to the chest, abdomen, arm and leg. Two of the shots hit Ha Vu, who was sitting in the front passenger seat. He suffered injuries to the leg and foot. Those events were the subject of Counts 5 and 6.
On Monday 22 February you were driving your car in Munro Street, Coburg. You resented the way another driver, a Frank Borrello, was driving. Both cars stopped at red traffic lights at Sydney Road. You pointed a handgun towards Frank Borrello. You abused him and fired a shot. The shot hit his car a metre or so behind him. Those event were the subject of Counts 7 and 8.
On Tuesday 23 February you were driving your car in Riversdale Road, Hawthorn. You resented the way another driver, a Christopher Dunn, was driving. Both cars stopped at red traffic lights at Glenferrie Road. You pointed a handgun towards Christopher Dunn. You fired six shots with that gun. All shots hit the car that he was driving. One of the shots hit him in the stomach. He directed some abuse at you. He queried whether you had run out of bullets. You response was to pick up another handgun. From the second gun, you fired further shots. Three of those shots hit Christopher Dunn's car as he wisely opted to drive away. That summarizes the events the subject of Counts 9 and 10.
Later that day you were driving your car north in Rosanna Road, Heidelberg. Not surprisingly, by this time the police were on the lookout for your car. Your car was seen in Rosanna Road. Two police cars were driven so as to make you pull your car in to stop by the curb. You got out of your car holding a handgun. You turned and faced the policeman, Jason Striegher, who had got out of the car behind yours, holding a handgun. You fired at Jason Striegher. A bullet hit him in the chest. You then moved as if stalking prey. You fired further shots at him. He fired at you with his handgun. A Sergeant Simon Delaney, who had got out of the marked police car in front, also fired at you and you fired at him. As this was happening, two more police cars had come up towards you from the south. They were stopped close by. Several more police, including four detectives, got out of the their cars and came towards you. More shorts were fired by and at you. You fired six shots in all. Jason Striegher was the only policeman hit by a shot from you. Shots fired by the police hit you in the arm and loin area. You dropped the gun you had been holding. You were later found to have had a second handgun in the pocket of your jeans. Later still, a third handgun and considerable ammunition was located in your car. That summarizes the events the subject of Counts 11 and 12.
I turn from the events that are the subject of your crimes to you. You were born in Vietnam on 1 July 1973. For most of your life you have gone by the name of Khuong Pham. You came to Australia with your parents in about 1981. The family settled in South Australia. Your father worked as a labourer. For some time both parents worked as market gardeners. You have two siblings, a brother and a sister. You were educated in South Australia. It seems that your schooling was unremarkable. You seem not to have been close to your family or to have developed friendships. You seem not to have had any significant work experience. You seem to have drifted in your early twenties into selling drugs. You moved in time into taking drugs. The information available to me about your taking of drugs is somewhat limited. It seems that your memory may have been to some degree affected by drug taking. It seems that you have not had a problem, yourself, with any form of addition to the drugs that you trafficked, namely heroin, cocaine and methylamphetamine. Your problem seems to have been with antidepressant or antipanic drugs available on prescription, such as Xanax and Aurorix. There is a conflict as between certain parts of the evidence. There are clear indications of your having pressed several doctors for Xanax in the days up to 23 February 1999. On the other hand, the analysis of your body samples taken that day does not support your having then had in your system any high level of toxic matter. You might have been affected, unaffected, or suffering withdrawal symptoms. I am not prepared to draw either an adverse or a favourable inference.
As to the drug taking, and of course in other respects, I have taken account of the reports of Dr Senadipathy and Mr Healey and of the latter's oral testimony. I accept that you are still suffering from anxiety and panic. I note that you are now on different prescribed medication. I have taken note of your history of treatment by psychiatrists. I have read the dated reports of Doctors Lagnado and Branson. They reported on treatment you received at the Hillcrest Hospital in South Australia. There were then indications of strong schizoid personality traits that were reflected in your being cold and affectionless to others. No doctor has considered you psychotic, although the possibility of a psychosis developing was noted. Dr Lagnado did refer to the distinct risk of explosive violence in the long term. I have also noted comments about your behaviour as seen by Mr Healey and by two women whose company you kept, namely Kristen Parke and Julie Scarborough. I infer that you liked the last name and chose to adopt it after you and she had gone your separate ways. The latest report from Dr Senadipathy indicates that your condition is now reasonably settled. I accept what he says about your having shown your willingness to participate in rehabilitation and skills training in prison.
Before turning to some others matters to be viewed in mitigation, I turn to the nine victim impact statements that have been filed. I always take plenty of time to read such statements. That is in part because I am conscious of trouble taken with, and the added trauma linked to, their preparation. I feel the same way here even though I know that such statements have had to be lodged in connection with claims for compensation. Your few days of explosive violence have materially changed for the worse the lives of those nine men and women. I bear that in mind when taking account of matters in mitigation.
I have been asked by the prosecution to sign a number of orders. One order under the Crimes Act requires you to have a sample taken. I am satisfied that I should sign that order after taking account of the nature, number and seriousness of the crimes to which you have pleaded guilty. I have signed the orders under the Firearms Act forfeiting the three handguns and ammunition improperly held by you. I have also signed forfeiture orders under ss.33(1) and 78(1) of the Confiscation Act. I also now indicate that I will make orders as to compensation under s.68 of the Crimes Act as per the reasons in writing I am now handing down. I will reserve liberty to apply in the event that there are matters arising in relation to those orders or those reasons.
I need not speak at length about your five appearances before the courts in South Australia between October 1990 and July 1995. Twice you received a suspended sentence. Otherwise, the offences resulted in your being placed on a bond or fined. There was no offence of actual violence. The one threat of violence was that which led to your being seen at the Hillcrest Hospital.
I am satisfied that I should treat you as being remorseful now for your crimes. Some indications of remorse were manifest when detectives interviewed you on 25 February 1999, two days after the shootings at Hawthorn and Heidelberg. Those indications have been reinforced by your plea of guilty, by your indicating early that that was to be your course, by what you have said to Mr Healey and by what Mr Toohey has said as to your taking no role in opposing the compensation claims made against you.
I take into account in your favour your relative youth and what I would assess as reasonable, although not excellent, prospects of rehabilitation. That assessment has regard to matters such as your poor work record, your lower level record of appearances before the courts and your recent attitude to imprisonment.
I take into account your plea of guilty, and not only as a reflection of remorse. That plea saves many witnesses the trauma of giving evidence and it represents a considerable saving in resources to the community. There is an added factor linked to your having been willing to plead guilty to three counts of attempted murder. I recognize that the raising of an issue as to the specific intent, namely to kill, that must be proved as an element of attempted murder can on occasions be a sufficient reason for a trial.
I take into account that your period in prison is likely to be spent in protection. Linked to that are other considerations put to me by Mr Toohey. One concerns your having given certain assistance to authorities. Another concerns your prospect of having few, if any, family member visits. Time spent in protection can mean that certain training and other options can be reduced and that certain concerns as to the attitude of mainstream prisoners can be increased. My experience on recent visits to prisons has been such as to lead to my assessing, first, that both factors are of less consequence than they used to be, but secondly, that they are still not inconsequential.
The crimes committed by you require strong condemnation. With each of the three crimes of attempted murder, there is an acceptance that there was an intention to kill the victim. You knew Phong Nguyen, the first of the three attempted murder victims, and you went searching for him. Because of the premeditation, I treat it as the most serious of your crimes. You did not know Jason Striegher, but you tried to kill him because he was a policeman who was doing his duty. You went about trying to kill him in a way that was brazen and foolhardy. The most bizarre of the three was the attempt to murder Christopher Dunn. There is a chilling randomness about your pulling out and firing a gun at another motorist to vent your road rage at a perceived incident of poor driving. The same could be said on a lower scale as to the shooting at Coburg. It is because the seriousness of those offences is so great that I merely condemn in passing your other crimes, which might otherwise merit strong adverse comment.
There are other respects in which your actions do warrant strong condemnation. One is as to your arranging to acquire not just one handgun, but three. You, and others, are fortunate that you seem to have lacked skill in being able to fire the guns with much accuracy. Another is as to your trafficking in illegal drugs for a considerable period. That warrants special condemnation, even though the victims are not so obviously harmed as those injured and traumatised when, over six days, you blazed a trial using the showy car and the deadly guns purchased from the profits of your drug trafficking. Only my acceptance of the need for me to avoid imposing an overall sentence that could be seen to be crushing warrants my treating you relatively leniently as to the drug trafficking.
By reason of the conviction on Count 5, you are to be sentenced as a serious violent offender on Counts 9 and 11. The prosecution has indicated that there appears to be no reasons for my not accepting, and I do accept, that in the circumstances of this case it is not appropriate to impose a sentence longer than is proportionate under s.6D of the Sentencing Act.
I turn now to the periods of imprisonment that I impose. On Count 5 I impose a term of ten years. On each of Counts 1, 2, 3 and 4 I impose a term of one month to be served concurrently with the ten years imposed on Count 5. On each of Counts 6 and 7 I impose a term of one year to be served concurrently with the ten years imposed on Count 5. On Count 8 I impose a term of three months to be served concurrently with the 10 years imposed on Count 5. On Count 9 I impose a term of eight years, four years of which are to be cumulative on the 10 years imposed on Count 5. On Count 10 I impose a term of three months to be served concurrently with the 10 years imposed on Count 5. On Count 11 I impose a term of eight years, four years of which are to be cumulative on the ten years imposed on Count 5. On Count 12 I impose a term of three years, one year of which is to be cumulative on the 10 years imposed on Count 5. On Count 13 I impose a term of three years, one year of which is to be cumulative on the ten years imposed on Count 5.
The effective term is 20 years. I fix a non-parole period of 15 years. I declare that you have spent 490 days in prison up to today, 26 June 2000. I direct that that declaration be noted in the records of the court.
MR ELSTON: Your Honour, two matters: one, that a declaration be entered in the records under 6F in relation to him being a serious offender under the Sentencing Act, and two, in terms of the time in custody is concerned, I think the time I gave you on the plea was 469 days as of 15/5. My instructor has calculated it now to be 511 days as to today.
HIS HONOUR: All right, what you want me to do is make two declarations .
MR ELSTON: One, that it's noted in the records that he's sentenced as a serious offender.
HIS HONOUR: Yes, I so direct, and instead of 490 days, I substitute 511.
MR ELSTON: Yes.
HIS HONOUR: All right. I take it no one says anything more in relation to those, so I so direct. Are there any other matters?
MR ELSTON: No, Your Honour.
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