R v Scott

[2025] NSWDC 84

District Court

New South Wales

Medium Neutral Citation:

R v Scott [2025] NSWDC 84

Hearing dates:

7 February 2025

Date of orders:

7 February 2025

Decision date:

07 February 2025

Jurisdiction:

Criminal

Before:

Haesler SC

Decision:

Sentence of imprisonment of 2 years 6 months with a non-parole period of 1 year 3 months

Catchwords:

CRIME — Violent offences — Reckless wounding — In company

SENTENCING — Aggravating factors — Breach of conditional liberty — In company — Planned or organised criminal activity — Presence of child — Record of previous convictions

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Assessing objective seriousness where offender’s role was less than the co-offender — General and specific deterrence — Maximum penalty and standard non-parole period — Moral culpability — Purposes of sentencing

SENTENCING — Subjective considerations on sentence — Aboriginal offender — Prior offending — Mental disorders — Drug addiction — Deprived childhood

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Johnson v R [2010] NSWCCA 124

Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381

Nasrallah v R [2021] NSWCCA 207

R v Breedon (Court of Criminal Appeal (NSW), 3 December 1992, unrep)

R v Goundar [2001] NSWCCA 198

R v Scott [2019] NSWDC 526

Category:

Sentence

Parties:

Gregory Scott (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
A Booker (for the accused)

Solicitors:
J Loosley solicitor for Public Prosecutions (NSW) (Crown)
Morrisons Law (for the offender)

File Number(s):

2023/344595

JUDGMENT – ex tempore revised

Introduction

1. On the morning of 24 October 2023, Gregory Scott and Trevor Manton went to an address in southern Wollongong. Their reason for the visit remains obscure. When they arrived the resident and victim of this offence was working on his car at the front of his home. He intercepted the two men entering the gate that led to his garage. They said they wanted to speak to him “out the back”.

2. Scott went through the gate and immediately behaved in belligerent way towards the victim. They began pushing each other. The victim’s son saw what was happening. He saw Scott holding a steel mallet in his right hand. He saw Manton was armed with a small metal object described as a “shank”. The information before me indicates that the offender worked as a scaffolder where hammers and shanks are used.

3. The son went to the gate and kicked it closed. Manton was locked on the outside of the gate with Scott inside. The son tried to keep the gate shut as Manton bashed against it. Manton then picked up a large steel car stand and threw it over the gate in the direction of the victim. The stand hit him on the top of the head, and he fell. The impact resulted in a large open wound which measured 10 centimetres in length. A photograph is before the Court: Exhibit A.

4. As his father fell the son grabbed a hedge trimmer and swung it towards Scott. He was hit in the face sustaining lacerations to his forehead and lips. Photographs of his injuries are before the Court: Exhibit A.

5. Manton then was able to kick open the gate and came inside and stomped on the victim’s head while he was lying on the ground. It is not suggested the present offender is liable for this act. The two intruders then ran away.

6. The victim was taken by ambulance to Wollongong Hospital. His wound was closed using sutures and staples. He was discharged against medical advice, but he returned to the hospital the following day and received further treatment. He was not further hospitalised. The treatment, apart from dealing with the wound, involved regular paracetamol.

7. A police investigation led to the arrest of Scott on 30 October 2023. He has been in custody ever since. He participated in an electronically recorded interview with police. He told police he was employed as a scaffolder and that the metal mallet was one of his tools, but he could not explain why it was located at the crime scene. He said that he had some prior communications with the complainant. He said that he had been hit over the head at the property.

8. However, despite his denial when he came before the Local Court, he said he would pleaded guilty to reckless wounding in company and he has admitted his role in the offending.

Maximum penalty and standard non-parole period

9. The offence of reckless wounding in company is charged pursuant to s 35(3) Crimes Act 1900 (NSW). It carries a of 10 years imprisonment. There is a standard non-parole period of 4 years.

10. Both maximum penalty and standard non-parole period are important guides to the exercise of my sentencing discretion. Content should be given to standard non-parole period.

Objective seriousness

11. Mr Loosley, solicitor for the Director of Public Prosecutions, suggested given that it is a standard non-parole period matter, that it might be helpful to describe it in terms of some notional scale of objective seriousness. He suggests this offending was “above mid-range” as the offence occurred in the victim’s home, he was confronted by two people, taking into account the nature of the object thrown and the extent of the subsequent wound.

12. I do not find such assessments helpful, although I recognise that others do. Fixing a matter in a range is particularly difficult in matters such as this because I have to specify what particular objective facts are used to make it and how the offender’s liability for his art in a joint criminal enterprise should be factored into such an assessment.

13. It is well recognised that when people are involved in a joint criminal enterprise, they are equally liable for what was done by the co-offender. It is also recognised that while each is equally liable, that does not automatically mean the offender is sentenced on the basis their individual actions had the same criminality: Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 at [51].

14. A sentence must be proportionate and properly reflect what the particular offender did. I must also take into account that he chose to involve himself in this incident and is responsible at law for what was done by the other offender. There is sometimes a need to differentiate between participants in a joint criminal enterprise. Where one stands out as the obvious instigator of what would, in any event, be their reckless action in the use of object (or weapon) that caused the injury, they may be more liable: R v Goundar [2001] NSWCCA 198; R v Breedon, Court of Criminal Appeal (NSW), 3 December 1992, unrep; Johnson v R [2010] NSWCCA 124.

15. In those circumstances the fixing of this matter on some notional range does not assist. Scott’s role and involvement requires a lesser finding of objective seriousness than that which would be appropriate to the co‑offender (on the material now available to me). I note that the co‑offender is listed for sentence before me, but I do not have his brief, and I do not know what facts will be put before me in relation to that matter. Sometimes facts tendered in sentencing proceedings for co-offenders can differ significantly.

16. I am prepared to find there is some significance in the differing roles, and the facts here do reduce the objective seriousness of Scott’s crime. He was nevertheless prepared with another to engage in serious criminal behaviour, and it was he who initiated the confrontation with the victim of this matter.

17. Considering his role and the wound that ultimately resulted, this was a serious criminal offence requiring a custodial sentence. No submission to the contrary was made by Mr Booker, who appears for him.

Other matters

18. There is no Victim Impact Statement but that does not mean no harm was suffered, obviously physical or psychological, as a result: Crimes (Sentencing Procedure) Act 1999 (NSW), s 30.

19. An important matter in the sentencing exercise is the fact that the offence occurred while Scott was subject to parole. I sentenced him in 2019 for a series of criminal offences: R v Scott [2019] NSWDC 526. He was released to parole on 7 September 2022 and his total sentence expires on 7 September 2025. The commission of an offence on parole is an aggravating circumstance in this sentencing exercise.

20. Scott has served his time on remand for this matter until today, subject to that earlier sentence. Principles of totality and basic fairness mean that while I could date this sentence from today, I should give him the benefit of considerable concurrence with that balance of parole. But in my view, consistent with authority which were referred to in Mr Loosley’s submissions, there should be some independent punishment for the breach as well.

21. I propose to commence this sentence on 30 January 2024; that is three months after he went into custody.

The case for the offender

22. When Scott was released to parole, all the material before me indicates that he kept to the promises that were made when I sentenced him last time. He had utilised his time in custody as well as he could. His gaol record indicates that his gaol discipline matters stopped at the point that I sentenced him.

23. After release to parole he engaged well with his parole officer. He maintained that engagement and demonstrated insight into his criminogenic risk factors. He completed his worksheets and attended for supervision. He got a job. But these good things did not continue. The breach report, 7 November 2023, notes that despite directions to complete the EQUIPS domestic and family violence program, he was withdrawn from it because he stopped attending. The breach report notes as key risk factors; aggression, violence and a pattern of offending of increased seriousness and that he still poses an ongoing risk. It appears that when he disregards his reporting obligations he loses motivation and the supports necessary to his leading a lawful life in the community.

24. Nevertheless, he was able after release, to find a home, to find work and to engage in sporting activities. It would appear that when he had a routine to follow, and when he was closely supervised and given tasks to do, he completed those tasks.

25. Through the reports before me Scott now expresses appropriate remorse for his victim. He also expresses his disappointment in himself and acknowledges the disappointment others who supported him while he was on parole must have felt.

26. He has shown insight into his offending behaviour. He engaged with the Illawarra Aboriginal Medical Service, took required medication. In custody he is back on the Buprenorphine Program. He has solid plans for his future, but he will need support.

27. I am indebted as always to a report from Chris North, psychologist. In that report she sets out Scott’s family history, which I will refer to shortly. She notes at par [35]:

“It is … recommended that Mr Scott engage in trauma-informed treatment with a focus on the development of emotion regulation skills to assist him in learning how to manage his symptoms of BPD [Borderline Personality Disorder] more effectively in the future, particularly in relation to improving impulse control and learning how to manage his anger.”

28. She says at par [36]:

“On a positive note, Mr Scott described a period of stability in the community subsequent to his release from custody in late 2022 … He identified his loss of stability precipitated his relapse … [to drugs] and offending … [This] indicat[ed] he would benefit from more intensive support and supervision in the community upon his future release from custody.”

29. Ms North makes appropriate recommendations for Scott’s future treatment and management. A copy of her report will be sent to Community Corrections as it will assist in his supervision while on parole for this matter.

30. Those recommendations are based upon her summary of the offender’s background. I went through it in detail in my previous sentence. I will not repeat it today. I have reviewed and read the report and my earlier judgment again this morning.

31. Scott’s personal history going back to when he was far too young, involved neglect and instability. His mother was murdered when he was very young. Her death had a profound impact on him. A number of other complex traumas are detailed in the reports that were before me on the last occasion and before me today.

32. The impact of these traumas mean that he should not be regarded as having the same moral culpability as a person without that profound disadvantage: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; Nasrallah v R [2021] NSWCCA 207.

33. Ms North indicates he has a Post-Traumatic Stress Disorder in addition to a Stimulant Use Disorder and a Borderline Personality Disorder. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 which dealt with how offenders are to be sentenced when they suffer a mental illness, it was noted that community protection is particularly important where people are suffering from Borderline Personality Disorders, citing earlier decisions of the Court of Criminal Appeal.

34. Often, such disorders are also associated with complex Post-Traumatic Stress Disorder and with a background such as this. This can mean that this offender, because of the matters raised that I have quoted earlier, potentially is at risk of reoffending because his ‘fuse’ is short, and he resorts to violence. But he was able to show while in custody on the previous occasion and during his present term in custody that he can, with help, control his anger outbursts. As the High Court noted in Bugmy v The Queen, matters such as those reported impact on moral culpability and socialisation; and they do not diminish over time, but they can be managed, and Scott has shown a capacity to manage them. There are signs of steps forward, but this was a significant step backwards, requiring he be removed from the community once again.

Submissions

35. I am assisted by the submissions of both counsel. I have sought to address them in this judgment.

Synthesis

36. Mr Scott has earned the support of members of the community who still stand by him. He has a solid plan for his future. But he will need help. As a consequence, and as a consequence of the accumulation of this sentence on a portion of the balance of parole, a finding of special circumstances will be made. He will require supervision, and close supervision from Community Corrections, as is clear from Ms North’s report.

37. Had it not been for his plea of guilty there would have been a sentence of about 3 years and 4 months. Applying the utilitarian value of the plea there will be a sentence of 2 years and 6 months, which as I said, commences three months after he went into custody.

Orders

38. Scott is sentenced to a non-parole period of 1 year and 3 months. The sentence will commence on 30 January 2024, making the offender eligible for release to parole on this matter on 29 April 2025. The balance of the term of 1 year, 3 months will commence on 30 April 2025 and expire on 30 August 2026; a total sentence of 2 years and 6 months.

39. Order explained to the offender:

Mr Scott, the impact of this order is that on this matter you are eligible for release on 29 April 2025. I note that you have a parole review date coming up later in the month. Your earlier sentence still has parole until 7 September 2025. The State Parole Authority will determine when you are to be released, whether on my date or some date that they fix, up until 7 September 2025. It is their decision now as to what date you get out.

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Decision last updated: 26 March 2025