Scott v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0070

PAUL SCOTT	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST AP and NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2023
DATE OF JUDGMENT:	29 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 129
JUDGMENT APPEALED FROM:	DPP v Scott [2023] VCC 325 (Judge Dawes)

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CRIMINAL LAW – Appeal – Sentence – Common assault, threat to kill and intentionally damaging property – Applicant incorrectly sentenced on basis that common assault was category 2 offence – Total effective sentence five months’ imprisonment – Appeal allowed – Applicant resentenced to total effective sentence of three months’ imprisonment – Sentencing Act 1991 s 5(2H) – Crimes Act 1958 s 320A.

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Counsel
Applicant:		Mr J Connolly
Respondent:		Ms E Ruddle KC
Solicitors
Applicant:	Clancy Solicitors
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST AP
NIALL JA:

At about 10.00 pm on Friday, 16 August 2019, the applicant, Paul Scott, then aged 53 years,[1] contacted ‘Wellways’, a support service for mental health, and told the call-taker that he had a gun and was going to shoot himself. Police were notified at about 11.00 pm. In the result, Leading Senior Constable Christopher Westrope contacted the applicant by telephone. The applicant told him that he had a gun and was going to kill himself.
[1]His date of birth is 20 June 1966.
Later, at about 11.45 pm, a number of police — including Westrope, Leading Senior Constable Richard Ellis, Leading Senior Constable Mark Staley, First Constable Miranda Mouat and Sergeant David Young — went to the applicant’s address. Westrope approached the front door. The applicant came out the door but did not turn on the front lights as had been agreed. Westrope then began speaking to the applicant, but he became enraged and started yelling abuse at the assembled police.
The applicant then pulled out a black imitation firearm with a perforated barrel from behind his back and began waving it around in the direction of police. He yelled: ‘Let’s fucken roll cunt, I got plenty of bullets. You know me cunt, you come one on one. I’ve got plenty of fucking bullets in my gun too cunt’. After doing so, the applicant put the firearm down on top of the meter box outside his front door, before again picking it up and waving it around whilst yelling and swearing at police. When doing so he pointed the gun directly at Ellis, who yelled at him to put the firearm down before retreating to a police divisional van. Upon gaining a view of the applicant holding the gun, Young gave the command to retreat, prompting the applicant to point the gun at him, causing Young to fear for his life. All police members retreated and the applicant went back inside the premises and closed the door.
Westrope once more contacted the applicant and began negotiations for him to surrender peacefully. Soon afterward, the applicant did come out and surrender without further incident. He was then taken by ambulance to hospital for a mental health assessment.
On arrival at the hospital, the applicant was shackled to a bed. He was agitated, orally abused a nurse and a security guard, and began kicking the baseplate of the hospital bed with significant force. The baseplate was damaged as a result, and the bars were bent. He told the security guard, Jamie Winning, that he was going to kill him.
In a record of interview with police conducted in the morning of 17 August 2019, the applicant said: ‘To be honest, I was waiting for them to shoot me. To kill me. Yeah, that’s the way I was playing it out. So they would kill me. ... I did want to get shot and killed’.
On 18 March 2022, the applicant pleaded guilty before a judge in the County Court to a rolled-up charge of common assault[2] (charge 1 — threatening police with the gun); making a threat to kill[3] (charge 2 — the threat to the security guard); and damaging property[4] (charge 3 — damaging the hospital bed). After a plea conducted over several days (including 21 September 2022, 26 October 2022, 15 December 2022 and 27 February 2023), on 7 March 2023 the judge sentenced the applicant to five months’ imprisonment on charge 1; seven days’ imprisonment on charge 2; and one month’s imprisonment on charge 3; leading to a total effective sentence of five months’ imprisonment.[5]
[2]Common assault is an offence at common law. By virtue of s 320A(2) of the Crimes Act 1958, the maximum penalty is 15 years’ imprisonment if particular circumstances apply. So far as relevant, s 320A provides:
320A Maximum term of imprisonment for common assault in certain circumstances
(2) Despite section 320, the maximum term of imprisonment for common assault is level 4 imprisonment (15 years maximum) if—
(a) at the time of the assault, the person who commits the assault (the offender) has a firearm or an imitation firearm readily available; and
(b) the person assaulted (the victim) is a police officer on duty …; and
(c) the offender knows or is reckless as to whether the victim is a police officer …; and
(d) the offender—
(i) enables the victim to see the firearm or an imitation firearm or the general shape of the firearm or an imitation firearm; or
(ii) tells or suggests to the victim that the offender has a firearm or an imitation firearm readily available; and
(e) the offender—
(i) knows that engaging in conduct referred to in subsection (2)(d) would be likely to arouse apprehension or fear; or
(ii) in all the particular circumstances, the person ought to have known that engaging in conduct referred to in subsection (2)(d) would be likely to arouse that apprehension or fear.
[3]Crimes Act 1958, s 20. The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 197(1). The maximum penalty is 10 years’ imprisonment.
[5]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have sentence the applicant to nine months’ imprisonment.
At the time that she imposed sentence, the judge thought that the charged common assault was a category 2 offence within the meaning of the Sentencing Act 1991 (‘the Act’). She had been told as much by the prosecutor, and had not been disabused of that view by defence counsel. By virtue of s 3(1) of the Act, however, common assault is only a category 2 offence if the assault ‘consisted of or included the direct application of force within the meaning of the definition of assault in section 31(2) of [the Crimes Act 1958]’. In the present case, however, there had been no direct application of force to the police, so that — contrary to the prosecution-induced misapprehension under which the judge laboured — the assault charged was not to be considered a category 2 offence.
Importantly, s 5(2H) of the Act provides that a sentencing court must impose a sentence of imprisonment for a category 2 offence unless an offender can bring himself or herself within prescribed exceptions. In the present case, however, the judge was not satisfied that any of the exceptions applied, and said:
The intention of Parliament is clear from the language used. My sentencing discretion in relation to Charge 1 has been pared back by Parliament. I am not satisfied that you have established that the sentence I should impose should not be an immediate term of imprisonment.
Given the foregoing, it is plain that the sentencing discretion miscarried. Based on a prosecution submission, the judge understood that s 5(2H) of the Act applied, so that she had no option but to impose a sentence of imprisonment (with or without a community correction order) unless the applicant could bring himself within a statutory exception — which the applicant had failed to do. In these circumstances, the applicant’s sole ground of appeal — that the sentencing judge ‘erred by incorrectly sentencing the applicant on the basis that charge 1 was a category 2 offence — is made out and the sentencing discretion is re-opened. Indeed, counsel for the respondent in this Court fairly conceded that the ground was made out, acknowledging that the judge made ‘a fundamental error’. The respondent also fairly conceded that ‘the entire sentence is impacted by the error’, and that ‘the sentence on each charge should be set aside and the Applicant re-sentenced on all charges by this Court’.
Bearing in mind the respondent’s concessions, we would grant leave to appeal against sentence and allow the appeal.[6] It is thus necessary to sentence the applicant afresh.
[6]The applicant also needs an extension of time. Given the circumstances, it is proper to grant and extension.
Turning to matters relevant to the applicant’s re-sentencing, the judge noted in her sentencing remarks that the applicant is ‘a Koori man’, and she observed:
I accept that you grew up in an environment of disadvantage and that you experienced childhood trauma and abuse. You were subjected to family violence. I accept that your dysfunctional childhood, characterised by family violence and abuse, reflects a background of considerable social deprivation. The relevance of such deprivation does not diminish over time notwithstanding your lengthy criminal history.
I consider that the principles of Bugmy v The Queen[7] are applicable and a mitigating factor to the overall sentencing process here. Your moral culpability is reduced. The principles of deterrence, denunciation and just punishment should also be moderated, although they are still relevant and should not be eliminated entirely. This is counter balanced, however, by the principle of community protection which remains a relevant sentencing consideration in your case.
[7]Bugmy v The Queen (2013) 249 CLR 571.
The judge also observed that the prosecution did not dispute that limbs five and six from Verdins[8] were enlivened, and said:
In January 2021, [Mr Jeffrey Cummins, clinical and forensic psychologist] said that you presented as being of low-level intelligence and that your presentation was most consistent with a Major Depressive Disorder. He would expect that your mental health would inevitably deteriorate if incarcerated.
In September 2022, [Dr Maria Triglia, consultant forensic psychiatrist] noted that you meet the criteria for a persistent Depressive Disorder. Given your chronic mood difficulties, possible acquired brain injury and use of opiate and benzodiazepine medication, a period in custody would weigh more heavily on you than on someone without these conditions. You would be at risk of a deterioration in your depressive symptoms, particularly if being in custody resulted in a loss of your accommodation and supports when released back into the community.
However, when discussing your previous sentences of imprisonment, you told Dr Triglia that you have previously coped well with being in custody and denied having self-harmed or required psychiatric care at these times.
[Ms Edwina Beer, psychologist] stated that a custodial sentence would place you at significant risk of being mistreated by others.
I accept that a custodial sentence may weigh more heavily on you than someone without these conditions and that there is a risk of deteriorating mental health, which enlivens the fifth and sixth limb of Verdins. I take them into account.
[8]R v Verdins (2007) 16 VR 269.
Apart from the matters above, it is also proper to take into account the applicant’s plea of guilty (including its utilitarian benefits); the delay, and the lack of subsequent offending.
As against those matters in mitigation, the applicant has a poor criminal history, which (among other things) bears on his prospects of rehabilitation. The judge described it as follows:
You have a lengthy criminal history. You have appeared in court approximately 50 times since 1986. Your offending includes crimes of violence, threats to kill, property damage, dishonesty, breach of court orders, offences against members of police and emergency workers and alcohol-related offending. In the past you have been sentenced to relatively short terms of imprisonment a number of times. You were placed on Community Based Orders (1998, 1999 and 2008); Intensive Correction Orders (2002 and 2003) and a Community Correction Order (2014).
Your contravention of court orders includes numerous offences of breach of Intervention Orders, failing to appear at court, committing an offence on bail, breach of parole, breach of community work orders and failing to comply with a CBO.
As to the applicant’s prospects of rehabilitation, however, we also take into account the following findings by the judge in her sentencing remarks:
Your counsel submitted that your prospects of rehabilitation have improved significantly, given that you have successfully engaged in, and complied with, treatment. Relevantly, you have not been involved in any further offending. I accept this submission. You are successfully managing your addiction to alcohol, have reduced your opiate dependency and have various forms of ongoing professional intervention in place. You are most fortunate in that regard.
In the circumstances, we will sentence the applicant to three months’ imprisonment on the first charge, and confirm the sentences on charges 2 and 3. The total effective sentence is thus three months’ imprisonment. In fixing sentence we note, as did the judge, that the applicant had been engaging well with his National Disability Insurance Scheme support worker. We further note that it would be of benefit to the applicant and the community if that support were to be available immediately upon his release. We will declare that, but for the applicant’s plea of guilty, we would have imposed a total effective sentence of six months’ imprisonment. Any other orders of the County Court will be confirmed.
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[2023] VSCA 129

29 May 2023