Prosecution v Prosecution

1. Scott Christopher Lee Thomas, you have pleaded guilty to attempted murder,[1] to negligently causing serious injury,[2] to possessing a drug of dependence (namely cannabis L)[3] and to driving a motor vehicle while more than the prescribed concentration of drugs, namely delta-9-tetrahydrocannabinol, was present in your blood.[4]
2. Attempted murder has a maximum penalty of 25 years' imprisonment.[5] Negligently causing serious injury has a maximum penalty of 10 years' imprisonment.[6] The maximum penalty for possession of a small quantity of cannabis is 5 penalty units.[7] Finally, because it is your second offence, the maximum penalty for driving a motor vehicle with more than the prescribed concentration of drugs present in your blood is 60 penalty units.[8]
3. There is no dispute that both attempted murder and negligently causing serious injury are serious offences. It is also uncontroversial that the 2 main victims of your crimes were extremely vulnerable at the time you inflicted serious and life-threatening injuries upon them.
4. By your guilty plea, you admit, first, that you intended to commit the offence of murder and attempted to commit that offence. Secondly, you admit that you owed a duty of care, that you breached that duty by criminal negligence, that the act which breached the duty of care was committed consciously, voluntarily and deliberately, and that your breach of the duty caused a person to suffer a serious injury.

B. The offending and the surrounding circumstances

1. The main victims of your crimes are Jason Yanner and Jye Salter-Fear.
2. By March 2023, you and Mr Yanner had known each other for about 18 months. You had had a mutual friend who died by suicide on 2 November 2022. You each blamed the other for his death. A significant level of animosity existed between you as a result of this and earlier events (the details of which are not necessary to go into). On the day of your friend's death, there was a physical altercation between you and Mr Yanner; just as there had been the day before. On the earlier occasion, Mr Yanner had pushed you onto the bonnet of a car and told you he was going to "punch your head in". In relation to the latter altercation, you were separated by police who were already in attendance at your friend's home.
3. In early March 2023, you reported to police that Mr Yanner had threatened to kill you, however you did not state your name to police at that time. As you were leaving the police station, you yelled words to the effect of "if you don't get him first then you'll have a body on your hands".

1. On 15 March 2023, Mr Yanner met with 2 of his friends at his home in Stawell; namely, Mr Salter-Fear and his girlfriend, Janine Kennedy. Mr Yanner was cooking dinner for his friends and some neighbours. It was late afternoon when he decided to walk with his friends to a nearby street to obtain a further ingredient for the dinner. While Mr Yanner was still in his own street, purely by chance, you drove by on the way to see someone else.
2. The two-way street consisted of 2 lanes divided by a solid white line. It was in a residential area with a speed limit of 50 kilometres per hour. It had concrete gutters on both sides, with grass nature strips and footpaths bordering 2 rows of residential properties. The width between the 2 parallel kerbs was approximately 10 metres.
3. As you turned into this street, Mr Yanner yelled at you, stating words to the effect that he was going to "get you", coupled with an abusive remark. In the account you gave to police, you suggested that Mr Yanner chased after the car. A few moments later, you applied the handbrake and performed a U-turn, which created a loud squealing noise. Instantly, Ms Kennedy perceived that they were in danger and, as she started to run, she told Mr Salter-Fear to "leg it". The motor of the car was then heard making a high revving noise as you drove back in the direction from which you came.
4. You drove for approximately 78 metres at speed directly towards Mr Yanner. As you got close to him, you drove on the wrong side of the road and used the car as a weapon by deliberately turning the vehicle to the right to make sure that you hit him.[9] Upon impact, Mr Yanner flew into the air before landing on the ground in the front yard of a residence over the road from where he lived. Mr Yanner remained conscious, but lay motionless in a perilous state.
5. After you hit the kerb, you lost control of the car. As a result, upon hitting Mr Yanner, you then struck Mr Salter-Fear.[10] He hit the windscreen before flying several metres in the air and landing very hard about 50 metres from Mr Yanner. Amongst other injuries, Mr Salter-Fear suffered an extensive laceration to his neck. Blood was gushing from his injuries (which formed a large pool on the road) and he was in much distress.
6. Before the car came to a stop at an intersection, it travelled very fast on the footpath and nature strip on the wrong side of the road, and then collided with a traffic sign. The car halted 125 metres from where you had performed the U-turn. It was extensively damaged from each of the collisions with the 2 victims and the traffic sign.

1. You initially did not appear to be perturbed by these events. You got out of the car and approached Mr Yanner. You went to kick him, but a neighbour protected him and pushed you away. You told a neighbour that Mr Yanner had threatened your family. Another neighbour then knocked you to the ground. You told that neighbour that you understood, and that the neighbour should do what he had to do.
2. These neighbours and other witnesses distressingly observed the severe suffering of both Mr Yanner and Mr Salter-Fear. Emergency services were called. Both men were airlifted from the scene.
3. Before police arrived, you called your mother and said more than once that you were sorry. You told her that Mr Yanner had again threatened to slit your girlfriend's throat and that you had "totalled" her car. You also said "oh my God, I think I have killed him".
4. Police took you to Stawell Hospital, where you were medically assessed and a blood sample was taken. A couple of hours later, you were released from hospital and taken to Ararat police station.

1. The answers you gave in an interview with police were illuminating as to your motive and lack of remorse with respect to the serious injuries you had inflicted upon Mr Yanner.[11] In addition to admitting that you intended to run Mr Yanner over because you "snapped", "lost it" and saw "pure red", you spoke about him in extremely derisory terms. Notwithstanding what you had just done to him, you expressed your regret that you had not killed him.
2. You sought to blame the police for what had occurred and accused them of having failed to act in response to Mr Yanner's threatening behaviour towards you and your girlfriend. You also said Mr Yanner had told every person in town you were the reason your friend killed himself and that you should die.
3. Your description of what you had done was chilling. You said that from the time you turned the car around, you had decided you were going to kill Mr Yanner. You said you "gunned" at Mr Yanner and when he moved off to the side, you turned the steering wheel to the right to make sure you hit him. You also demonstrated to police how you did this. You said that, at the time you hit him, you wanted him dead. You said you got out of the car to make sure that Mr Yanner was dead, and hoped that he was.
4. As for Mr Salter-Fear, you did not know who he was and said you had no idea you had hit him. In contrast to your malice towards Mr Yanner, you told police you had no intention to hit Mr Salter-Fear, and described him as an innocent bystander. In relation to what you had done to him, you said you would "own up to it 100 percent".
5. Your counsel contended that the level of honesty you displayed during this interview and in your engagement with police more generally, which was said to facilitate the course of justice, should be taken into account in your favour. While this submission has some merit, it was also properly accepted that your frankness reflected the callousness of your conduct, which you continued to display after the terrible consequences of your attack were known.
6. You still show no remorse for running down Mr Yanner, despite the serious injuries you caused him and the ongoing suffering he endures.[12] This is not an aggravating circumstance, but is a factor that reduces the possible mitigating circumstances in your favour.

1. The car you were driving was examined. Under the front passenger seat, a snap-seal bag was found containing cannabis. By your guilty plea, you admit that you were in possession of this illicit substance.
2. The blood sample taken from you was analysed and found to contain 7 nanograms per millilitre of delta-9-tetrahydrocannabinol. Any amount of this illicit substance is a prescribed concentration of drugs for the purposes of the Road Safety Act 1986 (Vic).[13]

1. You are 36 years old, having been born in Victoria on 29 December 1987. You were raised in the township of Rushworth. You left school at the age of 16. You attended Federation University in Ballarat where you studied automotive mechanics for approximately 6 months. You then had various jobs in hospitality, before heading to the United States in your early twenties with your then partner. You had a son together, but the relationship broke down and you have had limited contact with your son since.
2. Upon your return to Australia, you engaged in jobs in hospitality as well as working in an abattoir and as a delivery driver. You later developed fibromyalgia and ceased working.
3. You have a limited criminal record. Given its nature and that it is so dated, it is of minimal relevance for sentencing purposes.
4. Amongst others, you have the support of your mother and girlfriend, both of whom attended the plea hearing. You are an only child. Your father died in a truck accident when you were very young.
5. A number of character references were tendered on your behalf. Each of them portrayed you in a very good light. Indeed, you appear to have had a very positive effect on the lives of numerous other people.

1. Three victim impact statements were tendered.[14]
2. Mr Yanner, who was 53 years old at the time you drove into him, gave extensive details of the adverse ways in which his life has been impacted. He explained how your conduct has destroyed his life mentally and physically.
3. Mr Salter-Fear, who was 31 years old when he was struck, gave a short statement outlining the serious consequences of your offending, including ongoing issues with memory loss and his dependency on others.
4. Ms Kennedy has provided details of her emotional trauma as a result of what she witnessed and her inability to be at peace with what occurred. She also noted that she was nearly struck by the car.
5. Each of the statements demonstrate the severe impact your conduct has had upon them. They have been taken into account in determining the appropriate sentence.

1. The only purposes for which a sentence may be imposed are prescribed in the Sentencing Act 1991 (Vic).[15] These purposes include to punish the offender to an extent and in a manner which is just in all of the circumstances; to deter the offender or other persons from committing offences of the same or a similar character; to establish conditions which may facilitate rehabilitation; to manifest the denunciation of the offending conduct; and to protect the community from the offender.[16] In sentencing you, I must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.[17]
2. I must also have regard to a number of other considerations, including but not limited to the maximum penalty prescribed for the offence, any current sentencing practices, the nature and gravity of the offence, your culpability and degree of responsibility for the offence, the impact of the offence on victims, and the presence of any aggravating or mitigating factors.[18] Through a process of instinctive synthesis, I must balance these factors, which may point in different and conflicting directions, in order to arrive at a sentence that is just in all the circumstances.[19]

E.2 Current sentencing practices and comparative cases

1. Both the offence of attempted murder and of negligently causing serious injury occurred in somewhat unique circumstances. Although the court was referred to a limited number of authorities,[20] it was not contended that there had been a comparative case or that a current sentencing practice was materially relevant to either offence.[21]

1. Your plea of guilty was entered at a relatively early stage of the proceeding, and has considerable utilitarian value. You entered a guilty plea before any witnesses were required to be cross-examined. You were arraigned and pleaded guilty on 30 August 2024 following a sentence indication hearing.[22]
2. Despite your lack of remorse with respect to Mr Yanner, you are undoubtedly sorry for what has happened to Mr Salter-Fear. This position was reflected as early as your record of interview with police.[23]

1. The circumstances demonstrate that the attempted murder you committed is a grave example of the offence.[24] The salient features include you using a car as a weapon against a person in a vulnerable position who posed no immediate threat to you.[25] Although your crime was not premeditated, it was also far from a reflex response as you had decided what you were going to do as you turned your car around and were a considerable distance from Mr Yanner. Mr Yanner was in a public place within the vicinity of his home where he was entitled to feel safe. Your cruel crime was witnessed by others, who were seriously distressed as result of what they saw.
2. You almost achieved your desired outcome of causing death.
3. Similarly, your crime of negligently causing serious injury was grave in nature.[26] The negligence in question was not a momentary lapse of concentration, but was a byproduct of you intentionally seeking to kill Mr Yanner. In pursuing that outcome, you took a significant risk that you might have seriously injured others who were in the vicinity. Mr Salter-Fear was an innocent and most unfortunate bystander when you deliberately chose to drive off the suburban street and onto the nature strip, and lost control. In these circumstances, you must have fully appreciated your driving was dangerous for others, in particular when Mr Yanner was not alone and in a residential area. Further, you were driving with an illicit substance in your bloodstream.
4. Mr Salter-Fear's injuries were also life-threatening.
5. In short, the injuries you inflicted on both your victims were serious and will have a lifelong effect. Both of them spent extensive periods in hospital to receive life-saving treatment and ongoing rehabilitation.[27] Your counsel properly conceded on your behalf that the injuries they suffered were potentially catastrophic.

1. As is self-evident from what has already been stated, with respect to both the attempted murder and the negligent driving causing serious injury, your moral culpability is high.

E.6 Prospects of rehabilitation, deterrence and other matters

1. While there are some matters that weigh in your favour, there are a number of factors which indicate that the court should be guarded when assessing your prospects of rehabilitation.
2. Albeit the events happened quite quickly, the cold and calculating manner in which you sought to kill Mr Yanner is concerning; even more so when you continue to show no signs of remorse approximately 18 months after that offending.
3. In assessing your rehabilitation prospects as moderate, I have taken into account the matters raised, including your employment in a factory producing prison issue clothing while incarcerated, your abstinence from illicit substances from which you have "broken away", your limited criminal history and your age.
4. There was no issue that general deterrence, just punishment and denunciation of your more serious crimes are primary sentencing considerations. Further, although less significant, I consider specific deterrence and community protection are also relevant factors.

1. Taking each of the relevant matters into account and balancing the factors as best as I am able, on the count of:

(1) Attempted murder, you are convicted and sentenced to be imprisoned for a period of 13 years and 6 months. I treat that as the base sentence.

(2) Negligently causing serious injury, you are convicted and sentenced to be imprisoned for a period of 6 years and 6 months.

(3) Possession of a small quantity of cannabis, you are convicted and fined $250.

(4) Driving a motor vehicle while more than the prescribed concentration of drugs was present in your blood, in circumstances where it is your second conviction for this offence, you are convicted and fined $450.

1. Regarding the second offence involving negligent driving, I direct that a period of 2 years and 6 months be served cumulatively on the sentence imposed on the first offence.
2. That makes the total effective sentence 16 years' imprisonment. I fix a period of 10 years' imprisonment as the period you must serve before you become eligible for parole.[28]
3. For the benefit of Mr Salter-Fear, I note that the relatively modest degree of cumulation should not be taken as an indication of the court's assessment of the value of his suffering or his ongoing loss of enjoyment of life. Rather, it should be seen as the means by which the court has sought to ensure that the total effective sentence of imprisonment represents an appropriate and just response to your offending.[29]
4. Your driver's licence must also be cancelled. I will order it be cancelled and disqualify you from obtaining a further licence for a period of 3 years.[30]
5. I declare that, but for your plea of guilty, if you had been found guilty of attempted murder and negligently causing serious injury after pleading not guilty, I would have imposed a total effective sentence of 19 years' imprisonment with a non-parole period of 14 years.[31]
6. Further, I declare that 596 days of imprisonment, up to but not including today, have been served by way of pre-sentence detention. This period is to be reckoned as a period of imprisonment already served.[32] I shall direct that declaration be noted on the records of the court.

1. Disposal orders, which were not opposed, will be made substantially in the terms sought by the prosecution.

[1] Contrary to the Crimes Act 1958 (Vic), s 321M.

[2] Contrary to the Crimes Act, s 24.

[3] Contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 73(1).

[4] Contrary to the Road Safety Act 1986 (Vic), s 49(1)(bb).

[5] Crimes Act, s 321P(1A).

[6] Ibid, s 24.

[7] That is, where the offence was committed in relation to a quantity of cannabis that is not more than a small quantity applicable to cannabis and where the offence was not committed for any purpose related to trafficking in cannabis: see Drugs, Poisons and Controlled Substances Act, s 73(1)(a). A penalty unit at the time of your offending was for the amount of $184.92: Treasurer (Vic), 'Monetary Units Act 2006 - Notice under section 6 - Fixing the value of a fee unit and penalty unit' in Victoria, Victoria Government Gazette, No G 16, 21 April 2022, 1924, 1943.

[8] Road Safety Act, s 49(3AAA)(b).

[10] The vehicle remained in yaw for approximately 19 metres.

[11] Similar comments were also made before the record of interview was conducted.

[12] See Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354, 364-366 [34]-[41] (Maxwell P, Harper JA, Forrest AJA) regarding the relationship between a plea of guilty and the concept of remorse.

[13] Road Safety Act, ss 3 (definition of "prescribed concentration of drugs" and "prescribed illicit drug"), 49(1)(bb).

[14] The statements were only relied upon to the extent they contained admissible material: see Sentencing Act 1991 (Vic), s 8L(6).

[15] Section 5(1).

[16] See also Veen v The Queen (No 2) (1988) 164 CLR 465, 476.8 (Mason CJ, Brennan, Dawson and Toohey JJ).

[17] Sentencing Act, s 5(3).

[18] Ibid, s 5(2). See also R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391, 405 [45]-[46] (Warren CJ, Maxwell P and Redlich JA). The weight and emphasis to be given to various factors is a discretionary exercise which depends on the facts and circumstances of each case: Director of Public Prosecutions (Victoria) v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 434 [7] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ); Markarian v The Queen (2005) 228 CLR 357, 371 [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[19] Director of Public Prosecutions (Victoria) v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 434 [5] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ), citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ). See also Markarian v The Queen (2005) 228 CLR 357, 373-375 [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[20] Byast v The Queen (2021) 98 MVR 266; Director of Public Prosecutions v Jensen [2019] VSC 327; Papachristodoulou v The Queen (2017) 82 MVR 27.

[21] Noting that the utility of sentencing statistics is limited, for the period from 1 July 2018 until 30 June 2023, the shortest sentence for attempted murder was 7 years' imprisonment and the longest was 16 years' imprisonment, with a median of 11.67 years' imprisonment: Sentencing Advisory Council, 'Attempted murder: Higher courts sentencing outcomes, 1 July 2018 to 30 June 2023' (accessed online, 17 July 2024).

[22] On 26 August 2024, I indicated that if you were to plead guilty at the earliest opportunity to charges 1, 3 and 6 the subject of the indictment filed 5 April 2024, together with the charge of driving a motor vehicle while more than the prescribed concentration of drugs, namely delta-9-tetrahydrocannabinol, was present in your blood, as set out in the notice of related summary offences filed 22 December 2023, I would impose a total effective sentence that would not exceed 16 years' imprisonment with a non-parole period of 10 years, together with a total fine that would not exceed $700.

[24] Compare Director of Public Prosecutions v Jensen [2019] VSC 327 (and the table of "comparable cases" set out in the appendix to those reasons).

[25] See Director of Public Prosecutions v Coleman [2001] VSCA 59; (2001) 120 A Crim R 415, 420 [14] (Tadgell JA, with whom Winneke P and Buchanan JA agreed) regarding the use of a motor vehicle as a weapon.

[26] Compare Harrison v The Queen [2015] VSCA 349; (2015) 49 VR 619, 628 [42], 629 [44], 638 [82] (Maxwell P, Redlich and Tate JJA).

[27] Mr Yanner was in hospital from 15 to 27 March 2023. His injuries included placement in an induced coma and intubation with artificial ventilation, collapsed lungs, left and right bronchopleural fistulas, tension pneumothorax, respiratory deterioration, right shoulder injury, fracture to the right outer forearm and fracture to the right wrist bone, amongst other injuries. Mr Salter-Fear was in hospital from 15 to 28 March 2023. He was then transferred to the Epworth Rehabilitation Centre and Acquired Brain Injury Unit, where he remained until 19 April 2023. His injuries included intercostal chest drains, a large and deep laceration to the right side of his neck, bruising and swelling to both knees, a closed traumatic brain injury which included a life-threatening increase of brain pressure due to bleeding and brain tissue swelling which required the insertion of an intracranial pressure monitor and placement of Mr Salter-Fear in an induced coma, behavioural and cognitive disturbances caused by his brain injury, concussion, neck fracture, broken shoulder blade and the collapse of both of his lungs, amongst other injuries.

[28] Sentencing Act, s 11(1). Your counsel invited the court to order a non-parole period fixed at less than "the traditional 'two-thirds' approach". However, it was also accepted that such an approach is more prevalent in sentences with imprisonment of less than 10 years: compare Kumova v The Queen ([2012] VSCA 212; 2012) 37 VR 538, 545 [27] (Redlich and Osborn JJA). In fixing the non-parole period of 10 years, I have taken into account the circumstances of the case, including the objective gravity of your offending.

[29] Director of Public Prosecutions v Marino [2011] VSCA 133, [53] (Kyrou AJA, with whom Buchanan and Nettle JJA agreed).

[30] Sentencing Act, ss 87P(b), 89(1)(a), 89(2)(b).

[31] Ibid, s 6AAA.

[32] Ibid, s 18(1) and (4).