R v Scroop

[2024] NSWDC 515

District Court

New South Wales

Medium Neutral Citation:

R v Scroop [2024] NSWDC 515

Hearing dates:

30 August 2024

Date of orders:

30 August 2024

Decision date:

30 August 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 4 years with a non-parole period of 2 years 6 months

Catchwords:

CRIME — Violent offences — Domestic violence —Assault occasioning actual bodily harm — Use offensive weapon with intent — Intimidation

CRIME — Drug offences — Cultivate prohibited plant — Knowingly take part in cultivation

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Series of criminal acts

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Form 1 offences — General principles — Moral culpability — Objective seriousness

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Drug addiction — Health issues — Mental illness — Mental disorders —Institutionalisation — Deprived childhood — Institutional childhood sexual abuse

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

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

Mundav State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Ridgeway v R [2024] NSWCCA 152

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

Texts Cited:

“Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project

Category:

Sentence

Parties:

Kevin Scroop (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
I Vizintin solicitor for Legal Aid (NSW) (for the offender)
A Bird solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/94061

JUDGMENT – ex tempore revised

Introduction

1. On 22 March 2023 a woman went to Lake Illawarra Police Station with a support person. She was in an extremely emotional state. She had a number of visible injuries. She revealed that she was until then in a relationship with Kevin Scroop and she said that she had been subject to numerous acts of verbal and physical abuse.

2. Police arrested Scroop on 23 March 2023. He has been in custody ever since. They also searched his premises.

Matters for sentence

3. When he was before the Local Court he accepted his guilt in relation to a number of crimes:

• Six offences of assault occasioning actual bodily harm pursuant to s 59(1) Crimes Act 1900 (NSW), maximum penalty 5 years.

• One offence of using an offensive weapon with intent to commit a serious indictable offence, intimidation, pursuant to s 33B(1)(a) Crimes Act, maximum penalty 12 years.

• One offence of cultivate a prohibited plant pursuant to s 23(1)(a) Drug Misuse and Trafficking Act 1985 (NSW), which carries a maximum penalty of 10 years imprisonment, if dealt with in this Court.

4. Close attention must be paid to the maximum penalties. They are important guides to the exercise of my sentencing discretion.

Matters on a Form 1

5. He also accepted his guilt for three other offences. He asked that I deal with them on Crimes (Sentencing Procedure) Act 1999 (NSW) Forms 1:

• The possession of a prohibited drug, in relation to the cannabis matter.

• Destroying property, a mobile phone, and intimidation; which both relate to Sequence 9, the use offensive weapon offence.

6. So far as Sequence 9 is concerned, greater weight has to be given to community protection and personal deterrence in the matter when I fix the sentence to which it relates. The other matters could not have received custodial sentences if dealt with separately.

7. Close attention also has to be paid to the maximum penalties. They are important guides to the exercise of my sentencing discretion.

Agreed Facts

8. There are Agreed Facts before the Court. In short summary, they indicate that the offender and the victim commenced a relationship in late 2022. Soon after she moved in with him at his accommodation in Port Kembla. Her son from a previous relationship was a regular visitor.

9. There was violence in the relationship. Six assaults and seven incidents are particularised. All occurred between February 2023 and March 2023. All occurred in the context of the offender being a heavy drinker. It would appear, that the victim also enjoyed a drink. The consumption of alcohol by the offender cannot, and does not, excuse his actions nor is the victim to be blamed in any way for consuming alcohol.

Sequence 4

10. After an argument, the offender used a fishing pole to strike the victim numerous times on her body. As she tried to protect herself, the rod hit the side of her face, leaving her covered in blood. When she sought to clean it off, the offender turned cold water on her at high pressure. This was a degrading and humiliating experience for her, leaving her with injuries. She became fearful and stayed in the home.

Sequence 9

11. The offender was upset with the victim. He was upset with himself. He became irate. He took an offensive weapon, a machete-style knife, and held it to the victim, saying, “I’ll kill you now”. She believed he was going to kill her.

Sequence 7

12. On this occasion he approached her from behind and without reason or warning and punched her to the head twice; leaving large bumps.

Sequence 8

13. On this occasion he threw a can of bourbon at this victim’s face. It hit her on the bridge of her nose, with a visible injury resulting.

Sequence 13

14. This matter results from him biting the victim on the face and ear, leaving her with permanent scarring to her ear.

Sequence 14

15. When the victim’s son was visiting, Scroop grabbed her bra, singlet top and her hair and pulled her, resulting in bruising to her shoulder. She said she was hurting, so he let her go and left.

Sequence 15

16. The victim did something that he said was annoying. He abused her. He pushed her backwards off a chair or stool and grabbed her mouth, resulting in a split lip. It hurt her. She asked him to stop. Instead of stopping, he put his fingers in her throat so she could not breathe.

Sequence 12

17. When police attended his premises, they found two cannabis plants.

Matters on the Forms 1

18. On another occasion, he took her phone from her and pulled it apart: Sequence 16.

19. The intimidation offence is the act of intimidation after Sequence 9. It is Sequence 5.

20. When police attended his premises they found a small quantity of cannabis, Sequence 11, in addition to the two cannabis plants.

Objective seriousness

21. I am indebted to both counsel for their submissions in relation to these matters. Although in the submissions, reference was made to where on a scale of objective seriousness such matters fell, I find trying to fix matters on a notional scale unhelpful. It is not a dispute I need to resolve at this stage. What I must do is focus on what was done and assess the relative seriousness of each of the offences.

22. It is important to note that each crime occurred in a domestic context. Alcohol use does not excuse what occurred. Each involved the personal targeting of the victim. Each was part of what was obviously a larger picture of physical and mental violence and the exercise of power and control by this man over a woman who he had invited into his home.

23. There was limited planning. The offending appears to be spontaneous, but injuries were occasioned as a result of each of them. So far as Sequences 7, 8 and 9 are concerned, while different, all were of a similar level of criminality, each was sufficiently serious to justify custodial sentences.

24. Sequence 4 was a brutal beating with injuries and further conduct which degraded the victim; it continued for some time. Again, a serious example of its type.

25. Sequence 9, the use of a weapon and the threat to kill, carried with it as it in fact occurred a real belief in the victim that he may have carried out that threat. He certainly had the capacity to do so. The offence of intimidation with a maximum penalty of 5 years, being the intended offence, and the broad range of matters encompassed by s 33B offences, means that relative to other more serious offences of its type, it is at a lower level than many other such offences. While at the low level of a category serious offence, it still requires a significant penalty be imposed.

26. So far as Sequence 13 is concerned, there was permanent scarring as a result of the assault. I have to be careful because I sentence here for assault occasioning actual bodily harm and not some more serious offence.

27. For Sequence 15, the assault was made more serious by the hands or fingers in the throat. The offender and the community have to understand that pressure to the throat or mouth, anything that obstructs breathing, is a particularly serious offence because unintended and fatal consequences can sometimes occur.

Custodial history

28. The offender’s criminal antecedents have to be taken into account here. His history can never lead to a sentence which is disproportionate to the gravity of the matters for sentence. However, his history indicates that these matters were not uncharacteristic aberrations, but a continuation of offences, violent offences, against others in the community. It requires a more severe penalty to be imposed that focuses more on retribution, deterrence of this offender, and protection of the community: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [477]. That said, I cannot keep Scroop in custody longer than the objective seriousness of his offences requires.

29. The offender first went into custody in 1993 as a young adult. He was only back in the community for a short time where he met a woman and murdered her. As a consequence, he served a significant period in custody. When released, he repeatedly reoffended.

30. He has spent only three of the last 33 years in the community, the rest in gaol. He was last released to parole in November 2021. The period of just over a year before the commission of these offences, is the longest period he had ever spent in the community as an adult. He put that “success” relative to the rest of his life down to, very strict supervision and support. The material before me supports that conclusion. The support of a psychologist and parole officer continued but after the first 12 months it was not as intensive.

31. Although he had a psychologist and parole officer to turn to, he did not seek their support when he began offending.

32. This is, frankly, not surprising. Every study I have read, and my significant experience in dealing with people in custody since I started practice in the mid-1970s indicates that long terms of imprisonment have a generally negative impact on prisoners.

33. Prison environments are extreme in many respects. They are physically and psychologically taxing. They impose rigid routines on offenders. They remove any capacity for individual decision making about aspects of the person’s ordinary life. Often, long terms of imprisonment lead to institutionalisation. This means that the longer a person spends in custody the less their ability to live independently and exercise personal responsibility. If a person has never lived a normal life in the community, it is very hard for them to learn how to lead a normal life on release. Prisoners existing and living in inherently violent environment learn to use aggression and violence, they lose self-worth, and they tend to blame others, and take out on others, their own failings. All of which occurred here: “Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project.

Subjective case for the offender

34. The material before me, which I will not go through in any detail, indicates that Scroop is presently in ill health. He has a number of health conditions. He needs to have his medications regularised, something that will be difficult to do in custody. He has put on considerable weight as a result.

35. He has been able to remain alcohol free and he is presently on Buvidal to deal with some underlying drug abuse problems.

36. His background is set out in the very careful report of Ms Anand, Exhibit 1. Without going into it in significant detail I note that as a child he was subject to violence in the home and to sexual violence at schools and in institutions. He presently has a civil claim on foot.

37. He has some support from his father, but no other family supports. He has, as I have said, spent most of his life in custody.

38. A comprehensive report from Dr Rae was very helpful. She notes a history of impulsivity and poor impulse control, of alcohol abuse, and what she suspects is Attention Deficit Disorder as a child. She says there are strong indications of intellectual impairment and an Antisocial Personality Disorder. This means he has a low threshold before becoming frustrated; as was demonstrated in the offences before me. She notes features of Post-Traumatic Stress Disorder. She also believes a neurocognitive assessment and an occupational therapy functional assessment from NDIS are required.

39. In her opinion, Scroop would benefit from a review of his current medications. He would benefit from psychotropic treatment. He would benefit from, and I emphasise this, lifelong abstinence from alcohol and cannabis.

Synthesis

40. Scroop’s background must be given full weight. As the High Court said in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending. Full weight must be given to an offender’s deprived background in every sentencing decision. But the Court went on to say this is not to suggest that:

“An offender’s deprived background has the same (mitigatory) relevance for all purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion [speaking of the sentencing discretion] so difficult”.

41. Mitigating factors will be given appropriate weight, but they cannot be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence. As the High Court also pointed out in Mundav State of Western Australia [2013] HCA 38; (2013) 249 CLR 600, delivered on the same day as Bugmy, domestic violence in all its forms is unacceptable. Proper recognition should be given to the real harms crimes such as this do to their victims and the community in general. It would be wrong to accept that a victim of domestic violence is somehow less in need or deserving of protection and vindication as the criminal law can provide. Courts have an obligation to:

“Vindicate the dignity of each victim of violence, to express the community’s disapproval of the offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of the violence.” Munda at [54].

42. I note that each crime of violence was serious, and will be treated with real seriousness, because domestic violence in all its forms is unacceptable. Those principles in relation to victim protection, safety from violence is as important as the principles expressed in Bugmy.

43. As the Court of Criminal Appeal said recently in Ridgeway v R [2024] NSWCCA 152 at par [62]:

“Victims of domestic violence and other serious violent crimes are as entitled to the protection of the courts as violent offenders are to the proper consideration by the courts of their subjective case. The latter does not obviate the former, as Munda makes clear.”

44. That said, Scroop must be released into the community. That decision will be one for the State Parole Authority. They will not release him unless concerns of community safety can be met, but he has to be released, and it is better that he be released with an extended period of time for the sort of strict supervision which helped him stay offence free for over 12 months. For that reason, while release will not be automatic, I will make a finding of special circumstances. It is in the community’s interest that he be supervised strictly for as long as possible.

45. The sentence will start from 22 March 2023. It will be an aggregate sentence. The differences in indicated sentences are intended to reflect my findings so far as relative objective seriousness is concerned.

46. In relation to the cultivate cannabis and the cannabis matter on the Form 1, I deal with that matter pursuant to s 10A Crimes (Sentencing Procedure) Act, it being inexpedient to impose any other penalty. It could have been dealt with in the Local Court, and if it was, I can conceive of no penalty other than perhaps a recognisance being imposed, and that option would be of no utility here.

47. Each of the indicated sentences reflect the 25% reduction for the utilitarian value of the early guilty plea. I am not sure that the offender has sufficient insight to express remorse. There is, perhaps some regret, that he failed in this attempt to live in the community, as he had done so often in the past. I do not think he fully understands how to look after himself, let alone care for others.

Orders

48. Cultivate cannabis and the cannabis matter on the Form 1, conviction recorded no other penalty: Crimes (Sentencing Procedure) Act, s 10A.

49. Indicated sentences:

• Sequence 4: I indicate a sentence of 1 year and 10 months.

• Sequence 9: Taking into account the Form 1 matters, a sentence of 2 years and 3 months.

• Sequence 7: 9 months.

• Sequence 8: 9 months.

• Sequence 13: 1 year and 10 months.

• Sequence 14: 9 months.

• Sequence 15: 1 year and 6 months.

50. There will be an aggregate sentence of 4 years imprisonment. That sentence will commence on 22 March 2023, meaning that Scroop will be eligible for consideration for release to parole on 21 September 2025. There will be a parole period of 1 year and 6 months, reflecting a finding of special circumstances. The total sentence will expire on 23 March 2027.

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Decision last updated: 31 October 2024