R v SCOTT

A trial commences at Wollongong District Court

1. Scott was charged with a number of serious offences arising out of the three incidents. He said that he was not guilty. The matters were listed for back to back trials, initially in June 2018. The first trial could not commence until June 2019.
2. Before trial Scott accepted responsibility for one count relating to the Cringila incident, using an offensive weapon with intent to commit serious indictable offence being the intimidation of Mr Camara: 33B(1)(a) Crimes Act 1900 (NSW). He put in dispute however the nature of the weapon used.
3. A jury was empanelled to hear the three remaining counts relating to the Woonona incident: use offensive weapon in company with intent to commit an indictable offence, s 33B(2) Crimes Act, assault occasioning actual bodily harm; s 59(2) Crimes Act and attempted robbery armed with an offensive weapon; s 97(1) Crimes Act.
4. Although Mr Hoare, his counsel, did not open to the jury, it soon became apparent that Scott's case was that he did not at any time have a shortened firearm: Rather he went to the Sargeson home looking for Mick Sargeson, and on being told to leave he did so. His case was the Sargeson family escalated the incident and started the scuffle in their driveway.
5. On his arrest Scott's phone had been seized by police. It was examined. A photograph of Scott holding a shortened firearm was downloaded from it. Also downloaded was a short video of him firing such a weapon.
6. On day 3 of the trial objection was taken to the tender of these items. I allowed the tender. Scott asked for time.

Late guilty plea

1. On 20 June 2019, day 4 of his trial, leave was sought and given to the Crown to present a fresh Indictment, which included the 33B(1)(a), 33B(2) and 59(2) Crimes Act offences and replaced the attempted robbery armed with a charge of offensive weapon; s 97(1) with a demand money in company with menaces with intent to steal count; s 99(2). The jury were discharged on the old indictment and Scott entered pleas of guilty to the four counts.
2. After those guilty pleas were entered Scott through his counsel indicated that it would not be necessary for a jury panel to be called in the next trial relating to the incidents involving Ms Russell.
3. On Monday 24 June 2019 a fresh indictment relating to Ms Russell's allegations was presented. Scott said he was guilty to two offences; intimidate Ms Russell; s 13(1) Crimes (Domestic and Personal Violence) Act 2007, and intentionally damage a glass window and flyscreen; s 195(1)(a) Crimes Act.
4. Scott had already been sentenced in the Local Court for a breach of apprehended violence order relating to Ms Russell. Today, he accepted his guilt in relation to two other offences, which occurred when he was arrested; custody of a knife in a public place and possess prohibited drug. These matters were put on a s 166 Criminal Procedure Act 1986, certificate. Also on the s 166 certificate was an offence of driving motor vehicle during a disqualification period. This relates to the incidents of 9 November when he was seen to be driving the SUV. Guilt was admitted in relation to those matters and I will deal with them as part of the aggregate sentence
5. The maximum penalty for an offence pursuant to Crimes (Domestic and Personal Violence) Act is five years imprisonment. For destroying and damaging property, s 195(1) Crimes Act, the maximum penalty is also five years. For using an offensive weapon with intent s 33B(1)(a), the maximum is 12 years imprisonment. To use an offensive weapon in company with intent to commit an indictable offence, carries a maximum of 15 years imprisonment. Assault occasioning actual bodily harm, s 59(2), carries a maximum penalty of seven years imprisonment. Demand property in company with menaces with intent to steal carries a maximum penalty of 14 years imprisonment.
6. Close attention is always necessary to maximum penalties. They provide one guide to the exercise of my very broad sentencing discretion.

Objective seriousness; 15 October 2017 incident

1. Domestic violence laws and Apprehended Violence Orders exist to attempt, so far as is possible, to prevent those who might be subject to violence by former partners from further inconvenience or attack. The commission of offences in breach of an order is a serious aggravating feature. To use violence and threaten violence against a former partner is a particularly serious offence and involves a breach of the obligations that the person has to a former partner. The courts treat such matters seriously, particularly where they occur in the home of the victim of the offence.
2. Here the offence also occurred in the presence of the offender's son. It is notorious that children exposed to domestic violence can suffer dire consequences. This, I am sure, Scott now realises given his own background. It is also tragic that all too often there is a repetition by those who as a child were subject to or witnessed domestic violence of that very offending against their partners.
3. The offences from 15 October reflect badly on the offender. They show an attitude of self-entitlement toward and control of his former partner, which does him no credit. She was entitled to feel protected by the order. She was entitled to be protected by the order. When such orders are breached and breached in the manner here, those who are meant to be protected never really feel safe. They feel that they have lost control of their own lives. The offence can have particularly deleterious consequences on them.
4. So far as the offence against Mr Camara was concerned, this offender and others attended at his premises, called him over and threatened him with the weapon intending that he be intimidated by it. He was entitled to be treated with respect no matter what prior relationship they may have had. To go about armed in such a situation risks very real escalation of offending. To hold and use a firearm as occurred here puts anyone so exposed to it, including Mr Camara's sister, at potential risk.
5. The fact that there are no Victim Impact Statements, and the fact that Mr Camara did not fully cooperate when he gave evidence at the trial, does not diminish the objective seriousness of what occurred. His sister did give evidence and she spoke of the impact upon her to the jury
6. The incident at Woonona was a particular serious example of its type. A firearm was used. The offender was in company with two others. There was obviously some planning involved. It was, although only the yard and side of the house was entered, a series of offences, which occurred in the home of a family who were entitled to the quiet enjoyment of that home.
7. The impact upon two of the victims has been eloquently set out in the Victim Impact Statements. There were multiple victims. There was an escalation of activity. Ms Sargeson and her mother are not to be criticised for this. While brave, theirs was at times a foolhardy resistance to those who had come to their home armed with a firearm and a knife. That it occurred in ignorance of the nature of the firearm does not diminish the seriousness of what occurred. They were bravely confronting home invaders and are to be commended for their actions.
8. The actual bodily harm to Ms Sargeson was minimal but the circumstances which led to the infliction of it were particularly serious. The events were part of a course of conduct. It would appear its ultimate aim was to extract some money, presumably from brother Mick, who remained inside the house.
9. The Victim Impact Statements that were read to the Court were in keeping with those presently allowed by the legislature and the recent amendment. I have to be careful here however, as the amendments do not apply to those statements.
10. Mr Hoare who appears upon sentence and appeared at trial for the offender fairly did not object to the reading of the documents by the victims themselves. They speak of the harm suffered by both Tannith and Meryl Sargeson. To, the extent that the statements went beyond that which relates to personal harm of the victims, I put that portion to one side. But overall each speaks of the impact of having a home invaded, of realising that they had lost in a sense control of their own homes and their own destiny, and of the potential risk that matters could have been significantly worse, particularly given that a real firearm was used and fired.

Three incidents

1. There are three incidents. They involve separate victims and separate crimes. Within the Woonona incident are a number of offences. There is a need to accumulate each at least partially to acknowledge the harm done by each incident.
2. So far as the Woonona incident is concerned there was a course of conduct, and no sentence for one offence could comprehend all of the others, so there must be some accumulation within that incident.
3. Public confidence in the administration of justice requires there be no suggestion that multiple offences will be punished in the same way as one or two offences. Those considerations must of course be balanced against the general principle that an aggregate sentence does not exceed that which is called for in all the circumstances of the offending. The accumulation of all the sentences must be just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295.
4. I have already noted that the offences were committed while subject to a bond and that the November offences were committed while on bail for the October offences. Those matters aggravate the sentences that must be imposed.
5. Scott can draw no comfort from his criminal record. He has been before the Children's Court. He has been before the Local Court. His Children's Court offences involved matters of violence. There have been multiple domestic violence type offences dealt with in the Local Court. There has also been driving matters and breaches of Apprehended Violence Orders.
6. So far as his general record is concerned he can draw no comfort from it and he can be afforded no leniency because of it. So far as the domestic violence matters are concerned, his continued disrespect for those who are meant to be protected by such laws and for the orders of the Court, means that greater weight must be given to retribution, and here specific deterrence, when I formulate the appropriate sentence for the first incident.
7. It is obvious that the offender himself is focused primarily upon the offence at Woonona. He wrote a letter to the Court, which I read to the Court. Judges must be very sceptical about such letters, particularly if they are not supported by evidence on oath. But even if evidence is given on oath judges are entitled to be sceptical. There are many people who give evidence and profess to be truly and sincerely remorseful, but simply have no such beliefs.
8. I have received a letter from the offender: exhibit 1. It appears to be sincere. It appears to have come after reflection. He has had many days, in fact years, in his cell on remand to reflect on his crimes. The letter was addressed primarily to the victims of his offences, and to his family, children and current partner. He says he is prepared to accept his punishment and do what he can to change so that he can be a father to his children in the future, a proper partner, and not repeat the mistakes he has made time and time again.
9. His present partner, Ms Kakahi provided an affidavit to the Court: exhibit 2. She stands by him. She spoke of their plans which were interrupted when he was arrested for these offences. She notes that he is withdrawn and depressed at times while he is in custody. She also reflects that given his unsettled past history she is concerned that the routine of the gaol may mean that he is ill‑equipped for life in the community. She is concerned that he might spend too long in custody and have difficulty adjusting on release. She also believes that, deep down, there is a man who has an opportunity to turn his life around and be a positive role model for his children and her children. She speaks of his desire to stop using prohibited drugs; something that needs to be addressed.
10. When he was first arrested the offender spent 153 days on my calculation in custody. He was allowed bail to go to Oolong House, a respected drug and alcohol live-in rehabilitation centre in the Nowra area. He was only there for a few days before leaving. I am told that there was some difference with another inmate. But he chose, rather than accepting responsibility for himself, not to come back to the Court. He did not to seek another placement. He did not to do what I'm sure his partner advised him to do. Rather, he absconded, although he was shortly thereafter returned into custody.
11. The sentence will be adjusted back to when he first came into custody, and adjusted again to take into account time served, which on my calculation requires a backdate in the aggregate sentence to 8 June 2018, which is 153 days back from when he first returned to custody.
12. During that period he served two months relating to a breach of apprehended violence order. Given I have taken that matter into account when I came to formulate the appropriate sentence for the s 31 Crimes (Domestic and Personal Violence) Act offence, I am not going to adjust the sentence further. I will treat that matter as being served concurrently.
13. There is a Justice Health report before me: exhibit D. It indicates that he has had a number of injuries which reflect his frustration with his predicament in custody. It is also noted his record has some fighting matters and drug matters on it. He has been assessed by a drug and alcohol nurse and would be advised to take up their advice and take up any programs that are available while in custody. I am advised that he has Hepatitis C, but he has not completed a course of treatment. Again, it would be in his interests and his family's interests that this be dealt with while he is in custody.
14. It would appear from the other material before me that he often takes the advice of older, hardened prisoners. Speaking directly to you Mr Scott: The experience of this court that advice has always been wrong. There are sensible people in your life, your lawyers, your partner, family members. Take the advice of people who are not leading lives of crime, not from people who are spending most of their lives in custody. And my advice to you, for what it is worth, is if you are genuine in turning your life around you will take advantage of every course, every health intervention that is offered to you.
15. I am told, and accept, although I could not get from the authorities appropriate confirmation of it, that he has engaged with a psychologist while in custody and is benefiting from that treatment.
16. Scott's background is set out in a report of Raymond Hudd, which was tendered today: exhibit 1. There are no self-serving comments in that report that go to the objective seriousness of his offending. The material sets out a background which is tragic but uncontroversial, and the results of the author's testing, so far as psychological and other conditions are concerned. The report appears objective and fair and makes recommendations that are soundly based.
17. In brief summary it notes that Mr Scott, now 27, is an Aboriginal Australian was born in Moruya. He has grown up in many locations. He went to too many schools. His early life was very disrupted. He had only been to school to year 9 and has not benefited greatly from his schooling. He was he says, and I accept, subject to bullying at various times while at school.
18. The oldest child of his parents, he has a half-sister and brother from their previous relationships. It would appear that drugs have blighted the life of most of his family members.
19. His father is still around but they are not close. His mother was murdered when he was a young boy. I am prepared to accept that not only does he think of her regularly, but he also thinks about the way she died, and that is one reason for the anger which has blighted his life to date.
20. He has a number of children, some of which he still has contact with. They include the children of the victim of the domestic violence matter. It is to Ms Russell's credit that she, despite the commission of these offences, is prepared to cooperate in allowing contact. It is important the children have a father in their lives> It is important that eventually Mr Scott earns the respect of his children.
21. Ms Kakahi also has children, and this offender has the prospect of being a father to them.
22. The background of this young man meant that he had few, if any, of the advantages that most in the community expect. It was a background of deprivation. It was a background that left him with few, if any, resources for living a normal community life. He was using, and abusing, illicit drugs when he was still a teenager, well before he had an opportunity to make any rational choices. His life has been affected by drug use ever since.
23. It is clear that he has a significant anger management issues that need to be addressed. Again, they can be explained by the tragic background he had as a child.
24. Those matters must be given full weight; they do not diminish over time. They mean his moral culpability is less than a person whose life was not so blighted. This is not to say that they are an excuse for his offending behaviour, far from it. The mental health matters that are revealed in the report of Mr Hudd were not specifically operating at the time of the offending. To the contrary it seems, as he said in his letter, that he was heavily affected by a cocktail of different drugs and his thinking was clouded by them.
25. The use of illicit drugs prior to the commission of an offence is not a mitigating factor. At best, it helps me understand why he committed the offences and why he has trouble admitting to himself that he committed the offences. His background explains why he resorted to the use and abuse of illicit drugs and has had considerable difficulty in coming to grips with that significant problem.
26. Psychometric testing reveals a number of factors which indicate that his background has impacted on him in a significant way. Mr Hudd refers to repeated traumatisation during childhood. He sets out some common symptoms and behavioural characteristics, which are reflected in the other material before me. He also concludes that the offender has, what is commonly called, a borderline personality disorder, but perhaps better described here as an emotionally unstable personality disorder, which often involves symptoms such as fear of abandonment, intense anger and irritability, idealisation and devaluation of others, and substance misuse.
27. All of these matters require that the offender get, while in custody and on release, significant psychological help, not just for his own benefit but for the community's: because he must be released into the community. His need for ongoing therapy and drug rehabilitation programs are paramount.
28. If this offender is to fulfil his promise to his family, the Court and his victims to change his life, he will need considerable help. It is clear to me that he has never lived a normal community life and he must learn and receive the skills and the treatment to enable him to do so.
29. For those reasons, while I have taken into account the mitigating factors both in formulating the non‑parole period and the head sentence, I have so far as I am able determined a parole period which is I believe the maximum which the law allows, taking into account the purposes of sentencing. It also allows for a significant period of time for him to be supervised and assisted in the community. Hopefully he can be sent from gaol to a rehabilitation facility so that he can learn the skills that to date he has failed to learn.
30. How then to synthesise all these matters? There were multiple victims, both so far as the three incidents are concerned and so far as the Woonona incident is concerned. The victims of violence must be vindicated. Community protection is a particular concern here. Community protection can be obtained by removing a person from the community, but also by setting him up to progress back into the community by way of rehabilitation services, and by ensuring that he is supervised on release.

Victim request for mercy

1. I am heartened by the merciful conclusions to both the Victim Impact Statements. They show that each of the authors have considered not just the harm that was inflicted upon them and the consequences of the Woonona offending, but have also reflected on the interests of the community. Those interests can be served by the offender being given an opportunity to prove himself. I will give him that opportunity after he has served the minimum time that the purposes of sentencing and the particularly objective seriousness of his crimes require. But a court cannot simply take into account a victim's merciful conclusions. The Court has to impose appropriate, and in these instances, condign, punishment.

Parity

1. I have regard to the sentences imposed on Stephens, his co‑offender. Stephens pleaded guilty in the Local Court. He had three offences, two of which were in common, one which was a lesser equivalent. He received indicated sentences for those matters of 18 months, 22 months and 30 months and an aggregate sentence of four years with a significant finding of special circumstances.
2. There is no way direct parity is or should be applied here. Mr Hoare freely acknowledges that there are differences, both in their backgrounds and criminal histories, and role in the commission of the offences. Nevertheless, while like must be compared with like, there must be some proportionality between the sentences imposed on both co-offenders.

Synthesis

1. I am sentencing a young, immature man who has had a history that left him with few resources. If he is to break the pattern of offending which has blighted his life then he must take the opportunities offered. At the same time there must be a further period in custody to reflect the seriousness of what he did.
2. So far as the Woonona incident, while each of the offences are separate and require separate punishment, there is some considerable overlap between them. There must be some additional punishment for the Cringila incident and the Lake Illawarra incident.
3. So far as the Lake Illawarra incident is concerned the plea came late, but at least his former partner did not have to give evidence. I will reduce the otherwise appropriate sentences by 10%. So far as the Cringila matter is concerned it had some limited utilitarian value and I will reduce the otherwise appropriate sentence by 5%. So far as the Woonona matters are concerned there was no utilitarian value in the late plea.
4. During the course of material put before me his partner, Ms Kakahi, indicated that one reason he chose not to plead guilty was advice received from prisoners in the gaol. I have already commented on that. He is not to be punished for putting the Crown to proof or waiting till the last minute. But an early plea of guilty would here have meant significant reduction in the otherwise appropriate sentences and the overall sentences.

Orders

1. Having regard to all those matters I would indicate the following sentences: 1. damage property, s 195 offence I indicate a sentence of 11 months. 2. stalk and intimidate, s 13 offence I indicate a sentence of one year ten months. 3. using an offensive weapon with intent, s 33B(1)(a) offence at Cringila, I indicate a sentence of two years and ten months. 4. use offensive weapon in company with intent to commit an indictable offence s 33B(2) at Woonona. I indicate a sentence of four years and six months. 5. assault occasioning actual bodily harm, Section 99(2) offence I indicate a sentence of a sentence of two years and nine months. 6. drive while disqualified offence I indicate a sentence of two months; driving disqualification of 12 months. That driving disqualification will only take effect when he is released from gaol. If you drive after you are released from gaol that would be a breach of your parole. Do you understand?
2. For the two other matters on the s 166 certificate, the possess prohibited drug and custody of a the knife, it is inexpedient to impose further penalty, they will not be part of the aggregated sentence and are dealt with pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.
3. The stalk and common assault matters, on the s166 are dismissed as they are backup charges.
4. The total aggregate sentence is seven years and three months imprisonment . The sentence will commence on 8 June 2018. There will be a non-parole period of four years and three months. He will be eligible for consideration for release to parole on 7 September 2022. Reflecting on my significant finding of a need for special circumstances there will be a three year parole period. The total sentence should expire on 7 September 2025.
5. Mr Scott, parole has to be earned. You will not be released to parole unless the State Parole Authority take the view that you are safe to be released and the community can be protected from you. Your behaviour in custody will be a significant measure of whether or not you get parole. If you do not get parole you could end up serving the entirety of your sentence in custody, do you understand that? Is there anything further you require Madam Crown? HUGHES: No your Honour. HIS HONOUR: Mr Hoare? HOARE: No, your Honour. SHORT ADJOURNMENT
6. HIS HONOUR: I just pointed out that I made an error and I may have led you, Madam Crown, into error. I thought that the contravene apprehended violence order on the s 166 certificate was the matter that had been dealt with in the Local Court for which he received a two month sentence, but it is a different matter. HUGHES: Yes, your Honour. HIS HONOUR: And it relates to the stalk and intimidate. HUGHES: Yes, your Honour.
7. HIS HONOUR: In those circumstances seeing in my judgment I took it into account as an aggravating feature of the stalk and intimidate it would not be expedient to impose another penalty because that would involve double counting. So I will have that matter dealt with pursuant to s 10A. I do not think Mr Scott needs to be brought up for that to be changed. HOARE: No your Honour, I'll go down there.

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