R v Scott

Supreme Court of NSW|2015-05-29|Before: Wilson J

Judgment

Michael Vincent Scott (the offender) was arraigned on 10 March 2015 upon an indictment which charged him with the murder of Riley Dehn, on 5 April 2013, at Cessnock in this State. He entered a plea of not guilty. A jury was empanelled and his trial commenced.
On 30 March 2015 the offender was re-arraigned before the jury at his own request. He pleaded as follows: I plead not guilty to murder, but guilty to manslaughter based on the grounds of self defence.
The plea to the alternative charge of manslaughter was not accepted by the Crown in discharge of the indictment, and the trial continued.
The jury was sent out on verdict on the afternoon of 7 April 2015. A verdict of guilty to murder was returned on 10 April 2015.
Section 19A of the Crimes Act 1900 provides a maximum penalty of life imprisonment for murder. The Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 fixes a standard non-parole period of 20 years. These are the statutory guideposts that the Court must take into account, along with the other facts and circumstances relevant to the assessment of sentence.
Under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 the Court is to sentence an offender convicted of murder to life imprisonment if: "… the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence."
The Crown does not submit such a finding should be made and s 61 has no application in this matter.

Events After the Stabbing

Having gotten into the car that stopped to pick him and Ms. Orchard up, the offender asked the driver to take him to Hunter Avenue at Cessnock. The offender must have picked up the shirt that he had torn off before the fight with Connor Young before leaving the swimming pool car park, but he abandoned it in Hunter Avenue, on the footpath a short distance from the block of units in which he was staying.
The offender went to the unit, and awoke the occupants, Russell Payne and Carole Myles. The offender told Mr. Payne, "I stabbed someone", and gave him the multi-tool, asking him to wash it. Mr. Payne did as he was asked and washed the blade, which was some seven or eight centimetres in length, in the kitchen sink. Soon after the offender told Mr. Payne to take the knife and get rid of it. Mr. Payne thereafter took the knife out of the unit and went to some garbage bins located in the unit block's utility area. He dropped the tool into a garbage bin.
On returning to the unit Mr. Payne told the offender he had put the knife in a bin. The offender told him that this was too close to the units, and directed him to go and get the knife, and take it further away from the unit block. Mr. Payne retrieved the knife and eventually disposed of it in a storm water drain adjacent to the showground at Cessnock.
For what remained of that night and over the following day the offender evaded police.
There followed a number of actions by the offender which were intended by him to interfere with evidence of his crime. At his behest, Kayla Houston recovered the multi-tool from the storm water drain and, with the apparent assistance of another friend of the offender, disposed of it in such a way that it has never been found.
The offender additionally sought to have Melanie O'Neil, Russell Payne and Carole Myers dissuaded from giving evidence of their knowledge of the events, and endeavoured to have Kayla Houston make a false statement to the effect that the offender was unarmed when he left her home in the early hours of 5 April 2013.
The offender himself gave the police a false account of events when he was interviewed on 6 April 2013, going so far as to imply that Hayley Orchard may have been responsible for Mr. Dehn's death.
Even during the course of his trial the offender made an apparent attempt to interfere with evidence to be given to the jury, taking the considerable risk of passing a letter to Kalya Houston in the courthouse cells, urging her to "say the right things" in her evidence so that the offender could "beat this trial".
The Crown relied on evidence of the offender's attempts to interfere with the trial process as consciousness of guilt. It is of relevance in these proceedings only insofar as it is relevant to determining the facts of the offence for which the offender is to be sentenced, consistent with the jury's verdict. Having regard to this evidence, the jury plainly rejected the offender's version of events, as it was ultimately given by the plea entered by him on 30 March 2015. The jury doubtless had regard to the offender's conduct and lies following the stabbing in rejecting the veracity of the version implicit in the plea to manslaughter.
The offender's conduct after the stabbing cannot, in the circumstances that apply here, make the gravity of the murder any greater. In that regard I have set the post-offence conduct entirely aside. The offender may well face charges over some aspects of his conduct, but there are no charges before this Court.

The Self-Defence Issue

The offender's case at trial was, as I apprehend it, that he acted as he did in self-defence. From 30 March 2015, his case was that he acted from a reasonable belief that he had to act in the way that he did to defend himself, although acknowledging that it was not a reasonable response to the situation as he perceived it to be.
The offender did not give evidence before the jury, but a recording of his police interview was in evidence as Exhibit AD. In his interview the offender admitted having become involved in an altercation with "a big tall skinny fella" [Connor Young], an "Islander girl" [Ms. Uaongo] and a "few" others, who had, collectively, gotten "stuck into" him. He said that there had been a "wrestle", after which he had walked away, saying "Mate, I don't need the trouble". He claimed to have no knowledge of how a young man had been stabbed that night.
Later in the interview he expanded that account, referring to "another young fella" with whom he had had a "wrestle" in the vicinity of the low wooden fence, the young man having approached him when he was standing near the black gates with Ms. Uaongo. He continued to deny any knowledge of a stabbing, or of how such a thing could have occurred.
The offender told the police that he did not own a Leatherman or similar tool, unless there was one in his tool box, and he specifically denied being armed with any kind of blade during this incident.
The jury plainly rejected that version, as it had to in light of the offender's plea to manslaughter entered on 30 March 2015.
By its verdict, the jury also rejected the assertion inherent in the offender's plea to manslaughter, that he acted from a belief that it was necessary to take action in his own defence, albeit excessive to what was required.
The jury necessarily accepted the evidence of Leina Uaongo and that of other witnesses as to the circumstances in which Mr. Dehn was stabbed. That is, the jury must have accepted that the offender, having become angry at a perceived insult to Hayley Orchard, picked a fight with Connor Young, and assaulted him. At a point when Connor Young was on the ground, having been knocked down for the second time by a blow struck by the offender, and in a position to do no more than kick his legs out in the offender's direction, the offender pulled the multi-tool from his pocket and, with a deliberate motion, flicked out the blade. He armed himself in this way even though Mr. Young posed no immediate threat to him, and despite Leina Uaongo having quite bravely placed herself between the offender and Mr. Young in an attempt to stop any further violence.
Implicit in the jury's verdict is the conclusion that the offender flicked out the knife at that point, when he was not under attack and had already bested Connor Young, intending to use it. When the deceased approached him, he swung the blade in an upwards motion, causing the wound to Mr. Dehn's left forearm. He thereafter swung the knife towards Mr. Dehn's torso and thrust it into his chest with considerable force, sufficient to penetrate bone and the heart muscle.
The offender submits that the jury may have concluded that the fatal wound was inflicted later in the course of the altercation, when the offender was being punched repeatedly by Mr. Dehn but, had that been the jury's conclusion, then it seems to me there must have been a verdict for manslaughter, on the basis of excessive self-defence.
In my view, the partial defence of excessive self-defence was available to the offender later in the course of the altercation. It was not so available at the very early point, when Ms. Uaongo saw the offender produce the tool, flick open the blade, and use it to wound Mr. Dehn. For the facts to be consistent with the jury's verdict, the fatal wound must have been inflicted at that point.
Inherent in an act such as that in light of the whole of the evidence is an intention to cause grievous bodily harm to the deceased.
Despite the wounds, Mr. Dehn then rapidly got the better of the offender, and there was no further use by the offender of the knife. The fatal blow had already been struck.

The Gravity of the Offence

The gravity of the offence of murder, and the reason the legislature has specified a maximum penalty of life imprisonment for it, is in the taking of a human life.
There could be no more moving and eloquent demonstration of why the offence of murder carries such a significant maximum penalty than the two victim impact statements received by the Court this morning. Debra Dehn, Riley's mother, and his grandparents, Ronald and Delma Dehn, have shared with the Court their pain and loss, and the pain and loss of others who have been terribly affected by this crime, including Riley Dehn's father and his young daughter.
That loss, and that pain reflects the loss to the community as a whole of the life of one of its members. That Mr. Dehn was greatly loved, and that those who love him suffered and suffer still, does not make this murder more serious than any other; it is why all murders are viewed so seriously.
Beyond that commonality of the loss of life, there are a wide range of circumstances in which the offence of murder may be committed.
The task of this court is to determine where on the spectrum that is represented by the range of penalty culminating in life imprisonment this offender's culpability falls. The assessment of culpability must be made according to the laws of sentencing that bind this Court. There is a complex interrelationship between the principles that govern sentencing, general and personal deterrence, punishment, retribution, the protection of the community and the rehabilitation of the offender. The purposes of these principles overlap and none can be considered in isolation from the others.
It must be acknowledged at the outset that to those who loved Riley Dehn the process of assessing the gravity of the crime of his murder must seem both incomprehensible, and even offensive. For Mr. Dehn's family and friends there could be no worse crime than the murder of their loved one, and yet the lawyers speak of a range, and the Court engages in the exercise of assessing the gravity of the offence.
For Mr. Dehn's family, the principles of sentencing that perhaps most represent their interests in these proceedings are those which seek to make the offender accountable for his crime, to punish him, and to visit retribution upon him. Those considerations are balanced by others however, some of which, such as the need to consider the offender's rehabilitation, must seem entirely counter-intuitive to Mr. Dean's loved ones. It is understandable that they might expect to see the depth of their loss, pain, and grief reflected in the sentence imposed. That is unlikely to occur simply because no sentence that this Court can impose could ever truly compensate them for that loss.
Acknowledging that the process of assessing the objective gravity of the crime for which the offender is to be sentenced is likely to distress those present to represent their lost loved one, the Court endeavours in this assessment to inform the offender and the public, including Mr. Dehn's family, of the reasons for the sentence to be imposed.
This was a crime committed in the early hours of the morning in a public place when a number of people were in the vicinity.
Whilst the Crown case as it was put to the jury included a contention that the offender had gone to the area of the Cessnock Hotel in an angry mood and looking for a fight because of disparaging comments supposedly made by security guards about him and conveyed to him by Hayley Orchard, I cannot draw that conclusion beyond reasonable doubt.
It is at least as likely that the offender went to the area of the Hotel for no reason other than to collect Hayley Orchard. It would have represented no great detour in his journey from Aberdare to Hunter Avenue Cessnock to do so and, since Ms. Orchard had repeatedly asked him to collect her, and the offender had not been able to persuade her brother to undertake that role, he may have gone to the location simply to take her home.
Ms. Uaongo was clearly in error in identifying the offender as the man with a stick, at the point at which she first saw him, and so I cannot conclude beyond a reasonable doubt that it was the offender whom she was referring to when she described the man with the stick as seemingly angry, agitated, and pacing about before the dispute broke out.
After arriving there, however, the offender quickly became angry because of comments that he understood Connor Young to have directed to Ms. Orchard. He involved himself in the aggression of his then partner to the extent of challenging Mr. Young to fight. His willingness to engage in violence in a public street when people were milling about sets the scene for what followed.
The offender was armed, but in the circumstances of this case I do not think that his possession of a blade prior to the point at which he withdrew it from his pocket increases the gravity of his crime. A multi-tool is an implement carried by many people for legitimate purposes, and the mere possession of an implement of this nature cannot establish that the offender was going about the streets armed in the way that phrase is ordinarily applied in the criminal law. A multi-tool can be used as a weapon, but equally it can be used for many wholly legitimate purposes. Carrying a multi-tool is not an offence, unlike the act of carrying a cutting implement.
Mr. Payne gave evidence that the offender generally carried a Leatherman tool in a brown case that was ordinarily looped onto his belt. Given that the offender was described as someone who frequently rode a pushbike, carrying a tool of this type on his person could be readily attributable to the sort of running repairs cyclists on occasion have to make. I cannot conclude that he carried it for nefarious purposes.
The fact that the offender was willing to quickly resort to the use of a knife blade on the tool is, however, a feature which heightens the criminality of this offence in my view. The appellant introduced a weapon into what had been a fist fight, and he showed a ready willingness to use the weapon with lethal force against an unarmed man.
The Crown submitted that the Court should not have regard to the use of a knife as an aggravating feature pursuant to s.21A(2) of the Crimes (Sentencing Procedure) Act 1999. Mr. Flynn for the offender made the same submission, but additionally submitted that the use of the knife did not make this particular offence of murder more serious, and the Court was not entitled to have regard to it.
Whilst I accept the former submission, I do not agree with the latter submission. Although I do agree that the use of a weapon per se does not necessarily make a murder any worse in terms of its factual seriousness, it seems to me that that is a question to be determined on the facts of an individual case.
Here, a knife was introduced into a fist fight, and the offender's readiness to introduce a weapon does heighten the offender's moral culpability to a degree in my view. The use of the knife was the means of committing the murder, and to that extent, it cannot make the offence any more serious, but it can and does evidence a readiness to resort to a weapon to solve a grievance that has some relevance to the offender's moral culpability.
The offence was committed spontaneously, with no forethought or planning.
Mr. Flynn submitted that this feature of the matter alone must place it below the mid-range of seriousness, but I am aware of no authority to that effect, and do not accept that that is the law. That an offence was committed without any forethought is simply one of the features to be taken into account in assessing the gravity of the offence. Certainly, it is a feature that can indicate that a particular crime may well fall below a notional mid-point, but it is necessary to consider all relevant features before reaching that conclusion.
Having spontaneously engaged in a fist fight, the offender was angry and, probably equally spontaneously, he drew out the multi-tool with the intention of producing the blade. He flicked it open immediately, intending to use it, probably upon Connor Young or Leina Uaongo, although I cannot be satisfied of that beyond a reasonable doubt. When Mr. Dehn approached him the offender immediately struck out at him, with the knife in his hand. Having caused the wound to the deceased's arm, the offender struck a second, forceful blow, towards Mr. Dehn's torso.
The second blow was struck with the intention of causing grievous bodily harm to Mr. Dehn. Whilst a murder committed with the intention of inflicting really serious bodily harm can place the crime within the middle of any notional range of objective gravity, the assessment in this regard also, must be made in light of all the relevant surrounding circumstances.
Mr. Flynn submitted that the gravity of the crime was diminished by at least an element of self-defence, albeit not sufficient to constitute a defence or partial defence. However, at the point at which the fatal blow must have been struck, the offender was on the offensive. Self defence cannot, therefore, have a mitigating role in terms of culpability.
The offender willingly engaged in a fist fight in a public street where a number of people were present. He quickly resorted to the use of a weapon, which he introduced into a fist fight, and used without hesitation against an unarmed man. He struck two blows towards the deceased, the second of which was propelled by sufficient force to cut through bone, and the heart, a major muscle.
Although he was well aware that he had stabbed Mr. Dehn, since he said so soon after to Mr. Payne, the offender did nothing to render aid to Mr. Dehn, or even to check on his condition. Instead, he left the scene, shouting that he would be back. Mr. Flynn contends that there was some threat to the offender and so he may have felt that he could not stop and render aid to Mr. Dehn. That may be so, but the offender had a mobile telephone, and it would have been open to him to telephone an ambulance, even if he did so anonymously and having left the scene. He took no such action.
The maximum penalty for any offence is reserved for the worst example of that offence. That is, one that is so objectively heinous that matters personal to the offender leave little or no scope for any amelioration of the penalty to be imposed. This offence does not fall within that category. Necessarily, the penalty will be lower than the maximum available.
The Crown has submitted that this offence is one which is at the middle of the range of objective seriousness for an offence of murder. The offender submits that his crime falls below that point.
It is not necessary to express a conclusion as to the objective gravity of the offence by reference to a range. Insofar as language of that nature may make the conclusions of the Court clear however, in my view this matter falls at or very slightly below the mid-point of objective gravity.
In making that assessment, the court acknowledges that it may well do nothing to address the pain Mr. Dehn's family and friends have suffered, not just by the death of their loved one, but also through being subjected to what can be the distressing processes of the criminal justice system itself.
Mr Dehn's mother Debra referred in her victim impact statement to the pain of being instantly caught up in that process, even when seeing her son for the last time. She was prevented from holding her child, because his body was said to be evidence. The shock and grief at such an experience must have been overwhelming.
Since being informed of the death of a son, grandson, father, and loved one, they have found themselves in an unfamiliar environment that may appear to discount them almost entirely. They have had to deal with their grief from within that environment. The giving of a victim impact statement is some opportunity to tell the Court how Riley Dehn's death has affected them all.
As I said a short time ago, the depth of the pain felt by Riley Dehn's family and friends is demonstrative of his loss to the community, the significance of that loss being the reason why murder is viewed as our community's most serious crime. Here, a young man of 21, father to an infant girl, a son, grandson, and friend, has been taken away from his family and the community.
This Court must sentence the offender according to law, acting impartially, with objectivity and by the rigorous application of legal principle. However, no-one could fail to be moved by Ms. Dehn's expression of the impact that this offence has had on the Dehn family, or in hearing of the pain of Mr. and Mrs. Dehn's loss, and that of their grandson's father.

The Offender's Personal Circumstances

The offender was born on 13 July 1971 and was 41 years old at the time of the offence. He is now 43 years of age.
Mr. Scott has a lengthy criminal history which commenced in October 1987 when he first appeared at Cessnock Children's Court. He was then aged 16 years. He has been consistently before the courts from that time until this.
By far the majority of the offender's criminal history relates to offences of violence or intimidation. On my calculation from sentence Ex. A, the offender has 22 entries against him for contravening an apprehended domestic violence order (ADVO), such offences often involving violence or the threat of it; 26 entries for assault; thee for assault occasioning actual bodily harm; five for intimidation, and one for intimidation of a police officer; three entries for assaulting police officers in the execution of their duty; and 10 for resisting police in the same circumstances; and one for Aggravated Break Enter and Steal, where the elderly home occupier was assaulted with a weapon.
Eight of the offender's crimes involved the use of a weapon and, on five of those occasions, the weapon was a knife.
His record is such as to disentitle him to a measure of leniency that might otherwise have been extended to him.
Over the years a range of sentencing options have been utilised by the courts, and there are a number of sentences which have required the offender to participate in rehabilitative programmes, including programmes addressing drug and alcohol use, and those seeking to address his obvious problem with anger management and the use of violence to solve difficulties with others.
The offender has been sentenced to imprisonment on more than 25 separate occasions and has seen parole revoked on a number of occasions.
That was the case for parole with respect to the offence of aggravated break enter steal from July 1999 where the offender, in company with another, used an implement to inflict injury upon an elderly man, in the course of taking property from that man's house.
Before the Court as part of Ex. B are two documents from the sentence proceedings relevant to that offence. Although each dates from 1999, and the passage of time diminishes their weight to a degree, they do provide some evidence of the depth to which the offender's problem with violence is ingrained in him.
He has continued to behave violently in prison with his custodial history showing many breaches for violent incidents. In the period March 1995 to April 2015, there are something like eight entries for fighting, two for assault, and others for intimidation, abusive behaviour and the like. In September last year, whilst awaiting trial for this matter, the offender was breached for fighting or other combat. Just last month there was a breach for damaging property.
Those most recent entries can do nothing to demonstrate any positive basis for finding that there are reasonable prospects for rehabilitation.
It is that pattern of violence over many years that has culminated in this offence.
Despite the many opportunities the offender has had to rehabilitate himself with the assistance of the parole authorities, he has not taken advantage of them. A report tendered on his behalf today, Ex 1, suggests that the offender has completed rehabilitative courses in custody but, if so, they do not appear to have aided him in breaking free from a recidivist lifestyle. Of course, in circumstances where the offender has given no evidence, untested assertions to another must be treated with a degree of circumspection.
The offender has a long standing issue with alcohol abuse, having taken up alcohol use at the age of 13.
The offender had a somewhat fractured upbringing, with his parents separating when he was an infant, and he thereafter being raised by his father, grandmother and, later, aunt. The deaths of his aunt and grandmother have been the cause of longstanding grief with the offender telling Dr. Adams that his mood deteriorated following the death of his paternal aunt when he was 12, and his paternal grandmother at the age of 16.
Ordinarily, the offender has told Dr. Adams, his mood is "pretty good" and that his emotional state is reasonably stable. He did concede that he had difficulty controlling anger when someone provokes him. He acknowledged his history of engaging in violence. He did not, however, acknowledge engaging in any aggression without some provocation or, at least what he perceived as provocation.
The offender told Dr. Adams that his father was an alcoholic who physically abused him until, at 13 years, he began to fight back.
He has children, who are now young adults.
There is nothing in the report from Dr. Adams, the only evidence in the offender's case, that establishes that the offender is remorseful for anything other than his own situation. Despite the offender's plea to manslaughter entered on 30 March this year the offender told Dr. Adams "if I did it it was self defence." One can take nothing of remorse from that comment.
The offender has told Dr. Adams, and the doctor appears to agree, that his current mental health is reasonable.
The subjective case for the offender is indeed slight. There is no evidence of any mental health condition which has relevance to either the commission of the offence or to his future prospects and conditions of custody.
There is no basis upon which to make any positive assessment of the offender's prospect of rehabilitation. While such an assessment involves making a prediction of conduct years hence, all of the evidence before the Court would suggest that the offender, having done little to address his offending conduct in the past, may follow a similar pattern. I can make no finding either way with respect to his prospects of rehabilitation.
Mr. Flynn submits that the penalty to be imposed upon the offender should be ameliorated to reflect the utilitarian value of the plea of guilty to manslaughter but it was entered at a very late stage, after the most significant evidence had been called, and it seems to me that any utilitarian benefit was negligible. In those circumstances I do not propose to award any discount.
Neither the Crown nor Mr. Flynn submit that there is any basis upon which to find that special circumstances exist and that is a sensible approach. There will in any event be a significant period of parole in this case by the simple operation of the ordinary statutory ratio of sentence. Such a period should be sufficient to give Mr Scott such assistance as he requires. Whether he accepts and utilises the advantages that that assistance will give him, will be entirely a matter for him.
Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a Court may impose sentence on an offender. They are: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.
I have had regard to each of those purposes, multiple as they are, and in some regards pulling in opposite directions, in fixing the penalty to be imposed on the offender.

Sentence

The offender, Michael Vincent Scott, is convicted.
He is sentenced to a term of imprisonment comprising a non parole period of 18 years which is to date from 6 April 2013 and expire on 5 April 2031. There is an overall term of imprisonment of 24 years which will expire on 5 April 2037. The offender will be eligible for release to supervised parole upon the expiration of the non parole period on 5 April 2031.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2015

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