R v Scott

[2024] NSWDC 150

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Scott [2024] NSWDC 150

Hearing dates:

8 March 2024

Date of orders:

8 March 2024

Decision date:

08 March 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentence of imprisonment for 3 years and 1 month with a non-parole period of 2 years

Catchwords:

CRIME — Violent offences — Armed robbery — Offensive weapon

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Form 1 offences — Objective seriousness

SENTENCING — Subjective considerations on sentence — Deprived and impoverished background — Acquired brain injury — Multiple mental health disorders — Drug addiction — Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Administration of Sentencing) Act 1999 (NSW)

Crimes (Sentencing and Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

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

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

R v Millwood [2012] NSWSC 2

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Category:

Sentence

Parties:

Matthew John Scott (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
D Turner solicitor for Aboriginal Legal Service (NSW/ACT)
K MacKinnon solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/79307

JUDGMENT – ex tempore revised

Introduction

1. When he was before the Local Court, Matthew Scott said he would plead guilty to a serious criminal offence – Robbery Armed with an Offensive Weapon: Crimes Act 1900 (NSW), s 97(1). The offence was committed on a south coast Kentucky Fried Chicken (‘KFC’) store. Only a relatively small amount of money was taken.

2. Scott has spent most of his adult life in custody. He was on parole at the time, having only recently been released. The offence was captured by the store’s CCTV. If Scott had thought about it, he must have realised that he would have been arrested and returned to gaol. He is back there again.

3. He must be punished for what he did and the impact of his crime on the individual victims present at the KFC and the business must be taken into account. In addition to the impact on the immediate victims, crimes like this have an impact on our community as a whole. People should feel safe when they go out at night to get take‑away food. They cannot feel safe if one of their fellow customers is in the queue with a knife and then commits a robbery. Ultimately, courts have an important role in ensuring community safety.

4. For those reasons, despite all the important matters to which I will refer about Scott’s background, he must be removed from the community. He must again be returned to gaol for a substantial period.

5. That sentence can, and should, be moderated as far as is possible because of all the material put before me. That evidence indicates, Scott does not have the moral culpability of a person who did not have his deprived background. He received few of the resources most in the community expect. He is not to be treated in the same way as a person who had those advantages.

Pleas of guilty and matters on Form 1

6. Because of Scott’s plea of guilty, I will reduce the otherwise appropriate sentence by 25% to reflect the utilitarian value of that plea.

7. I will also take into account, on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1, that before and after this offence he committed two shoplifting offences – taking alcohol from retail stores: Crimes Act, s 117. I do not sentence for those matters. But given his history, as they would have involved relatively short custodial penalties, I will increase the sentence that I must impose in accordance with the guideline decision of the Court of Criminal Appeal: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42]

8. Scott has been in custody since 9 March 2023, the day after the offence. He was also serving the balance of parole for sentences imposed at Nowra District Court on 23 November 2022. He had only been released to parole a month earlier on 12 February 2023. His offending for the matters I am dealing with breached his parole. I will, as I must, take into account that breach as an aggravating feature on sentence: Crimes (Sentencing and Procedure) Act, s 21A. Given that I will be increasing the sentence because of that aggravating feature, and because the breach related to the commission of these offences, I will not double count that particular aspect. Accordingly, I will commence this sentence on 9 March 2023. This gives him the considerable advantage of this sentence running concurrent with the balance of parole.

Agreed Facts

9. The facts are relatively simple but sad. At around 5pm on 9 March 2023 a number of young people, including the specified victim in this matter, were working at a local KFC. Just after 8pm the offender entered the restaurant. He spoke to the victim at the counter saying, “There’s going to be trouble tonight”. Then in an aggressive manner he said, “Open the register”. As he did so he lifted the front of his jumper to show the attendant a black handle of what looked like a knife. He then said, “I’ll stab you”. When the victim did not respond, he said, “I’ll jump over and open it”, referring to the cash register. The cash register was then opened, the offender lent over and took about $250 cash from it, before running out of the restaurant.

10. The offender was arrested within an hour. Also found was a large knife whose handle matched the description given by the victim. A quantity of cash was recovered.

Objective seriousness

11. As I noted earlier, this was an offence of some seriousness. It was an offence against people and our community. The attendant at the KFC was aged 17 – still a child. I do not have a Victim Impact Statement from him, but it needs little imagination to know how someone, probably in their first job, working at night, would feel after being threatened in the way he was. He was not to know whether the threat to stab him would be carried out. He was not to know what condition Scott was in; whether he was affected by alcohol or drugs. He was not to know whether his obviously impulsive behaviour would result in the threat being carried out. People need jobs, young people should be encouraged to engage in work as soon as they can. Such actions can have serious consequences on them.

12. In response to perceived leniency by judges of this Court in dealing with robbery matters, in 1999 the Court of Criminal Appeal in NSW brought in the guideline judgment of R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. That guideline must be taken into account: Crimes (Sentencing Procedure) Act, s 24A. This matter has some similarities with the guideline, but sadly this offender is no longer young, and he has an extensive criminal record.

13. Another important matter for consideration is the maximum penalty, here 20 years. It is one guide to the exercise of my sentencing discretion.

14. I note that the guideline judgment came into effect before the High Court decision in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. The matters set out in that judgment, along with the purposes of sentencing and the provisions in s 21A Crimes (Sentencing Procedure) Act, necessary considerations must be all synthesised and an appropriate sentence fixed.

Subjective case

15. I have the benefit of a comprehensive report from a respected psychologist, Ms Edwidge. A copy of her report will be sent to Corrections to assist the State Parole Authority and those who I trust will provide services to Scott while he is in custody and on parole.

16. Scott has a history that is tragic. He was removed from his mother when he was very young. She still has many problems. He was placed with his aunt and raised locally. She gave him care and what was needed, but there was drug and alcohol use in the home.

17. At various times he has lived with friends, with his aunt and with his mother in Nowra. The time spent with his mother meant that there was increased exposure when young to drugs and alcohol, and it appears that Scott took up the use and abuse of alcohol when too young to make rational choices.

18. When he was 11 years old, Scott suffered a head injury from a motor vehicle accident. That head injury was associated with behavioural change, particularly anger issues.

19. When he was 18, he received compensation for the injury, but that money gave him funds which it seems he drunk away. He was in brief relationship. They had child. But since he was 20 years old, he has spent significantly more of his life in custody than out. On my calculations, over the last 15 years about three and a half years have been spent in the community, the rest in custody.

20. In custody, his record reveals he has a number of disciplinary matters. In more recent years, his time in the community has been measured in months. His return to custody, often in breach of parole, has been a result of crimes of dishonesty and violence.

21. Scott needs assistance in dealing with his long history of drug and alcohol abuse, but he has only spent a few days in a rehabilitation centre. Sadly, there are few rehabilitation facilities available for people with his combination of; acquired brain injury, mental health impairments, and drug and alcohol problems. Again, I must lament the fact that there are no drug court programs available to people on the South Coast and in the Illawarra.

22. His history of removal as a child, exposure to drugs and alcohol, disrupted schooling, early onset of drugs and alcohol, and acquired brain injury have led to developmental disadvantage.

23. He has, Ms Edwige noted, two mental health impairments, a Major Depressive Disorder and a Substance Abuse Disorder. In her comprehensive psychological evaluation, she notes the consequence of exposure to psychosocial stressors and exposure to criminal activity at a young age.

24. Obviously, as she notes, the head injury impacted upon him and continues to impact upon him. She states that gaol, rather than assisting him, has led to mental health, social and emotional problems. In her opinion, these are significant. These factors had an impact on his ability to “make considered and appropriate choices”. This is revealed by the impulsive offence which he committed, which on any rational evaluation should have led to a conclusion that he would shortly be arrested and gaoled again.

25. In her opinion, Scott needs to be assessed as soon as possible for the Suboxone program. He would benefit from attending a facilities such as Oolong House at Nowra. He needs, culturally responsive, trauma informed, psychological treatment. He needs to be seen by a psychiatrist and assessed for antidepressant medication. He needs to see a neuropsychologist to assess the impact of his brain injury. On release, he might get some cultural support which would enhance his prospects, if he can engage with his local Aboriginal community through the various men groups.

Submissions

26. I have had the benefit of written submissions prepared by Mr Wilson from the Aboriginal Legal Service and Ms MacKinnon, solicitor for the DPP, and oral submissions from Mr Turner and Ms MacKinnon. There was no controversy here. Both parties agree on the application of relevant principles.

27. Although there is no evidence before me on oath, there is nothing in the careful report of Ms Edwige that causes anyone concern about what she says. Scott’s history is supported by all the material before me, particularly his criminal antecedents. I also note on his custodial record there are Corrections alerts noting; his intellectual disability, acquired brain injury, history of self-harm, and epilepsy requiring Justice Health medical care.

28. I also note there are a considerable number of infringements on his custodial record. His criminal and gaol record does not assist him, it means greater weight has to be given to community protection.

Synthesis

29. This is a complex matter. I must give Scott’s tragic background full effect. He is not to be treated in the same way as a person who did not have his disadvantages and the impact of his history reduces his moral culpability: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; R v Millwood [2012] NSWSC 2 at [69]. This is an important factor. Detention in gaol will protect the community from further crimes, but only temporarily. The longer he is locked away, the worse his behaviour has become. But he cannot be locked away as a form of preventative detention: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [476].

30. Scott must be released to the community. Before that occurs, he requires targeted interventions on a number of levels, both in custody and on release. He must work with others in custody. And, regardless of how much that might be hampered by lack of resources and his apparent non-compliance, every effort should be made to provide him with what he needs, both in gaol and out in the community. His release will be subject to an order of the State Parole Authority. They will only release him if the community safety requirement and s 136 Crimes (Administration of Sentencing) Act 1999 (NSW) is met.

31. He is older now. Hopefully, as he matures, he will be in a position, when he earns his right to release to parole, to engage in services and go to a residential facility where he can, at last, get the help he needs to turn his life around.

32. The apparent leniency of the sentence, by reference to the guideline, does not mean I have ignored the impact of this offence on the victim. This matter requires a degree of leniency but also a minimum term that appropriately reflects the seriousness of the crime he committed and the other matters aggravating the sentence.

Orders

33. I take into account the plea of guilty and the Form 1. Had it not been for the plea of guilty I would have sentenced Scott to imprisonment for 4 years, 2 months. The sentence will be 3 years and 1 month imprisonment. The non-parole period will be 2 years. It will date from 9 March 2023, making Scott eligible for consideration for release to parole on 8 March 2025. The parole period of 1 year and 1 month reflects a finding of special circumstances. It will commence on 9 March 2025 and the sentence will expire on 23 April 2026.

**********

Amendments

08 May 2024 - Amended typographical error.

08 May 2024 - Amended typographical error.

03 June 2024 - Amended practitioner appearing.

Decision last updated: 03 June 2024