R v Timothy John Scott

[2008] NSWDC 379

CITATION:	R v Timothy John SCOTT [2008] NSWDC 379
JUDGMENT DATE:	1 December 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Non-parole period of 2 years, balance of term of 2 years
CATCHWORDS:	CRIMINAL LAW - sentence - addravated break and enter and commit serious indictable offence - full admission to police - not taking prescribed medication at time of offence - offender suffers from bipolar disorder - victim of assault security guard - criminal record including similar offences - plea of guilty at earliest opportunity - offender's wife suffers from significant medical condition, offender acts as carer - whether hardship relevant - history of drug abuse - whether there are special circumstances to allow an alteration of the normal ratio between non-parole period and parole period
LEGISLATION CITED:	Crimes Act 1900 s 112(2) Crimes (Sentencing Procedure) Act 1999 s 21A
PARTIES:	Regina Timothy John Scott
FILE NUMBER(S):	2008/16175
SOLICITORS:	Ms Nicholson for the Director of Public Prosecutions Mr Davidge for the Defence

JUDGMENT

1. I am sentencing Timothy John Scott. I am sentencing Mr Scott for the crime of aggravated break and enter and commit a serious indictable offence. The serious indictable offence was an assault occasioning actual bodily harm. The offence is against s 112(2) of the Crimes Act 1900. It carries a maximum penalty of twenty years imprisonment. In addition, Parliament has attached to this crime a standard non-parole period of five years.

2. The sentencing of Mr Scott involves weighing up the seriousness of what he did against some personal factors in his life. It is important for me to start with the seriousness of what he did and the appropriate place to start is with a description of what happened.

3. Mr Scott on Sunday 2 March 2008, at twenty to ten at night, broke into a business called World of Tyres here in Griffith. He went there in order to steal some tyres. Once he was inside he got a torch to help him look around. Unknown to him, his breaking in had activated an alarm and Scott Connor, a security guard, turned up. He inspected inside the business and came across Mr Scott. Mr Connor told Mr Scott not to move, but Mr Scott moved towards Mr Connor and pushed him in the chest and grabbed the torch out of his hand. Mr Connor fell to the ground. Whilst he was on the ground Mr Scott swung the torch at his head and hit him. Mr Scott tried to hit him again but Mr Connor wrestled the torch from him.

4. Mr Scott ran out of the warehouse but surprisingly came back to collect his mobile phone. I say “surprisingly”, but understandably so as well, because it in the end provided significant evidence linking him with the crime.

5. He was arrested about a week later and co-operated in making a full admission. He said that he did not intend to assault Mr Connor and expressed his remorse and shame. He told the police that at the time of committing the offence he had not been taking the medication he usually takes.

6. There are three things which particularly aggravate this offence. The first is that a weapon was used.

7. The second, which I regard also as serious, is that the victim of the assault was a person doing his job as a security guard. Businesses such as this need to employ security guards and security guards, as a result of their job, are in a vulnerable position. This security guard confronted an intruder and found himself on the floor being struck by a torch.

8. The third aggravating feature is not so much of the crime itself, but is described by s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 is an aggravating matter, that is that Mr Scott has a criminal record for similar offences. Two of them were committed when he was a child and I place less weight on that and another more recently when he received a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act.

9. I also take into account in assessing how serious this crime was the fact that Mr Scott obviously panicked when he was confronted by the security guard. He did not go into a residence knowing that there were people inside, he broke into a business and found himself confronted by a security guard. The assault was as a result of panic.

10. Nothing in the end was taken, and there is no evidence of any psychological damage or injury occasioned to the security guard, but there is evidence of Mr Connor suffering a deep laceration to his head with mild concussion as a result of the assault.

11. When Mr Scott committed this crime, he was or had been suffering for some time from a diagnosed psychiatric condition, namely a bipolar disorder. He also suffered from depression and had at least on one previous occasion attempted to take his own life.

12. Around the time of the offence he had moved from Broken Hill to Griffith. The move caused a good degree of disruption in his life. He got out of his routine in taking medication and so for a month or so before the offence he had not been taking the medication which he normally takes for his psychiatric condition.

13. As Ms Nicholson, who appeared for the prosecution, pointed out, the impact of Mr Scott’s mental health condition in this case points in two ways. On the one hand it carries with it less of an emphasis on the matter of general deterrence. It is well established that a person with a mental health condition is not a good example to others in demonstrating a deterrent sentencing pattern. On the other hand, however, he was responsible for taking his own medication. He failed to take the medication and perhaps as a result, or partly as a result, of that failure he found himself in the situation where he committed these crimes and panicked in the circumstance that he did. He therefore represents, as Ms Nicholson said, a greater danger to the community. I take both those aspects of his mental health condition into account.

14. Ms Nicholson conceded that this particular offence was below the middle of the range of objective seriousness for offences of this type. I agree with her. Mr Davidge, who appears for Mr Scott, embraced that submission. The reason that I agree is that it was an offence not involving a residence and it was committed in circumstances which were not anticipated by Mr Scott and when he was panicking.

15. Mr Scott pleaded guilty at what it is agreed was the earliest available opportunity.

16. There are a number of factors personal to Mr Scott which need also to be referred to. One of them is his mental health condition, which I have already made reference to.

17. A second is fairly significant. Mr Scott’s wife has a very serious medical condition, namely motor neurone disease. It is clear from what Mr Davidge has said that her condition is going to deteriorate further and will tragically eventually result in her death. Obviously when that will occur cannot be predicted. One thing of significance is that Mr Scott has been his wife’s carer for some time and indeed has been receiving the carer’s pension for some two years.

18. Mr Scott has a history of drug abuse, commencing with the use of cannabis at the age of fourteen and using heroin from the age of twenty-four. He spent some years in the Australian Infantry Force, but during that period of time became addicted to amphetamines, which led to his eventual discharge.

19. His prospects for rehabilitation must be guarded. The reason for that is that since committing this offence he has committed other offences. Indeed he is presently in custody under sentence as a result of offences committed after the offence that I am sentencing him for. He was sentenced on 5 November 2008 by the Local Court at Griffith to a range of penalties, which mean that he is in custody at least until 14 June 2009.

20. He did not give evidence, but there is some evidence of his remorse in the record of interview which I have read and in one of the pre-sentence reports which records Mr Scott as presenting as remorseful and ashamed of his actions.

21. Mr Davidge submits that it is a case where there are special circumstances which would permit me to alter the normal ratio between a non-parole period and a parole period. Ms Nicholson acknowledges that and I propose to alter that ratio. The special circumstances, in my opinion, are the need for Mr Scott to engage in the intensive therapy recommended in the pre-sentence reports that will require some time, as well as some supervision.

22. Sentencing Mr Scott is not an easy exercise at all. His offending behaviour has increased significantly from the kinds of offences that he has committed in the past, which have all been dealt with either in the Children’s Court or the Local Court. He has now committed an offence which carries with it a standard non-parole period of five years and is regarded by Parliament as very serious. It has the aggravating features attached to it which I have described and the sentence needs to reflect the protection which the community needs from these sorts of crimes, and these sorts of criminals.

23. On the other hand, I take into account Mr Scott’s personal circumstances with his wife’s condition. The Court of Criminal Appeal in this State has made it clear that hardship caused to persons other than the accused can be taken into account only when the hardship is highly or truly exceptional. As Mr Davidge pointed out, his client’s wife will sadly deteriorate in the near future and may need to go into a hospice facility. The couple cannot afford private home care. If she goes into a hospice she will need to go to Wagga. She has adult children who live in Griffith, so that there would be some dislocation involved. I propose to reflect this circumstance in the sentence which I impose, but it will be reflected only in directing that part of the sentence be concurrent with the present sentence which Mr Scott is serving. This is not a case where I cannot impose a full time custodial sentence. It is Mr Scott’s actions in committing this crime which have resulted in the hardship which his wife will have to bear, rather than my sentence.

24. The overall sentence which I propose to impose is four years. I propose to fix a non-parole period of two years and I propose to date that non-parole period from 1 January next year. That means, in effect, that Mr Scott will have to serve another eighteen months after the end of his current sentence.

25. I appreciate that that may have tragic consequences so far as his partnership with his wife is concerned, however, in my opinion any sentence less than that would not be sufficient to reflect the need to protect the community from the sorts of crime committed by Mr Scott. He has broken into a business which is entitled to be protected from these crimes, and has in the course of that assaulted a security officer who was doing no more than his job in trying to protect those premises from the breaking in. For doing his job he ended up in hospital with a deep laceration to his head. Mr Scott has a record at least for break and enter crimes and used a weapon, although spontaneously, in assaulting the security guard. This is a crime which must come with a period in full time custody.

26. Would you stand up please Mr Scott. For the offence of aggravated break and enter and commit serious indictable offence, I fix a non-parole period of two years to commence on 1 January 2009 and to conclude on 31 December 2010. The balance of the term will be two years, from 1 January 2011 to 31 December 2012.

HIS HONOUR: Now the first thing I ask you Mr Pincott and Mr Davidge is to check my sums, 01/01/09 to 31/12/10 and then 01/01/11 to 31/12/12. PINCOTT: I’m happy with them your Honour.
DAVIDGE: Thank you your Honour.
HIS HONOUR: The second thing is, I do not order parole because it is more than three years, am I right? But I might make recommendations to the Parole Authority, is that right?

27. When considering Mr Scott for parole, I recommend that the Parole Authority consider fixing as conditions those recommended in the pre-sentence reports dated 27 October 2008 and 14 November 2008, and also take into account the conclusions and recommendations of the Justice Health Report dated 16 September 2008.

HIS HONOUR: Is that all the formal matters that I need to - I will explain this to Mr Scott, as the statute requires me to do in a moment. There is a 166 I am reminded by my associate. What do I do with that? My note of what Ms Nicholson said is s 166 certificate dismissed.
PINCOTT: Yes thank you your Honour, I’m happy with that order.
HIS HONOUR: What is on the section - do we know what - I might have it, actually I’ve got it, my associate’s given it to me.

PINCOTT: I’ve got it in front of me too. I’ll ask for that formal order your Honour. In relation to the back-up offence, at sequence 2 of the assault occasioning actual bodily harm, I’d ask that you dismiss that matter.

HIS HONOUR: Thank you Mr Crown. I dismiss the back-up offence of sequence 2, assault occasioning actual bodily harm.

28. Mr Scott, you have got four years, for the reasons that I explained. You are in serious trouble: two years minimum. I have started that from 1 January so six months of that two years you are serving the same time - pretty well the same time - as your present sentence. After your present sentence you have got about eighteen months left so that you will become eligible to be considered for parole on New Years Eve 2010, 31 December 2010 is when you are eligible. That is when the Parole Authority will consider whether to release you or not and if they release you at that time you have then got two more years on parole and you have heard what I said about them, that it is up to them to fix parole, not me, but I have suggested they take into account what is in the pre-sentence report so that you can have an opportunity to sort out your mental health problem and your drug problem and this will be your opportunity when that comes up to do that. Do you understand all of that?

OFFENDER: Yes your Honour.

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