IN THE COUNTY COURT OF VICTORIA	 Revised
Not Restricted
 Suitable of Publication	
AT Melbourne
CRIMINAL DIVISION
CR-21-00489

DIRECTOR OF PUBLIC PROSECUTIONS		
		
V		

GEOFFREY SCUTCHEON

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JUDGE:	HIS HONOUR JUDGE BOURKE	
WHERE HELD:	Melbourne	
DATE OF HEARING:		
DATE OF SENTENCE:	13 April 2022	
CASE MAY BE CITED AS:	DPP v Scutcheon	
MEDIUM NEUTRAL CITATION:	[2022] VCC 525		

REASONS FOR SENTENCE

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Catchwords: 	

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ms J. Taylor		
			
For the Accused	Mr A. Hands		

HIS HONOUR:

1	Geoffrey Paul Scutcheon, on indictment C2014003.2 you are to be sentenced for one charge of robbery and one charge of recklessly causing injury.  The respective maximum sentences are 15 and 5 years imprisonment.  
2	You pleaded guilty before me on 11 April.  When interviewed by police on the day of your offending, 1/11/2020, you exercised your right to silence.  There was a committal hearing on 05/03/2021 after which you were committed for trial and entered a plea of not guilty to offences of aggravated car-jacking and intentionally causing injury.  The first trial indictment alleged those offences against both you and your co-offender, Tristian Scutcheon.   There was delay to that trial,  in a  large part caused by Covid 19 restrictions which impacted upon the criminal justice system.  Ultimately, the trial was listed for hearing at this Mildura County Court circuit.  However, your matter and that of Tristian Scutcheon settled on 6 April.  Tristian Scutcheon is your son.  The Crown did not proceed against you on the charge of aggravated car-jacking and intentionally causing injury.  On 11 April you pleaded guilty to these indictable offences of robbery and recklessly causing injury.  
3	You  receive the benefit of your plea of guilty and that level of co-operation in the proceedings.  It is relevant to the timing of the plea that the matter resolved and the Crown did not proceed on the more serious offences.  Particularly  the Crown does not pursue the allegation that you had knowledge of the possession and use by Tristian Scutcheon of a weapon in the offending.  Your plea has facilitated the interests of justice, accepted responsibility and expressed remorse.  The utilitarian benefit of your plea is the greater in the circumstances of the difficulty and impact caused to the criminal justice system by the Covid 19 pandemic and its restrictions.
4	At your plea hearing, which ran on 11 April, Ms Mahady from the Crown tendered a written Crown opening for plea.  Mr Hands, for you, you provided written submissions on sentence.  
5	The circumstances of your offending are comprehensively set out in the tendered Crown opening, which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put on your behalf, not challenged by the Crown.
6	In October 2020, you were living with your family in Linton not far from Ballarat.  You are aged 44.  You had known the victim of these offences, Lucas Hester, since school.  In late October 2020, you and Tristian Scutcheon were staying at his home in Ouyen.  It is clear that by the 1st of November a grievance had developed.  This is apparent in the circumstances of offending and in text messages you sent to him very soon after.  The nature and substance of that grievance is not so clear.  There is reference in the text to what may be a debt, of perhaps $4,000, owed by him to you.  I can make no findings on the certainty or validity of that, although the written submissions provided on your behalf state that you had lent Hester money.
7	You and Tristian Scutcheon had driven a hired vehicle to Ouyen, a red Toyota Corolla.  Lucas Hester owned a green Ford.  On 1 November it was arranged that the three of you, using both cars, would go to and meet in Mildura.  At Mildura, it was further arranged to travel to Merbein.  You told Hester that it was to visit a relative.  Hester had pulled over in a commercial road in Merbein to wait in his car for you and Tristian Scutcheon, in the Corolla;  then to follow you or get instruction about where to go.  This is where the offending happened.
8	The Corolla pulled over nearby.  Tristian Scutcheon went to the driver's side of Hester's car.  He was armed with a crow or jemmy bar.  He swung it at Hester a number of times, striking him.  By arrangement with your son, you had gone to the passenger side and stood against the door there,  preventing Hester from getting out and away.  Ultimately, you let him out.  You and Tristian Scutcheon drove away.  You in the Toyota and your son in the now stolen Ford.
9	A nearby resident saw Hester bleeding from the head.  He, Hester, attended hospital soon after.  He suffered injuries, the main being a gash to the Crown of his head toward the left and rear.  A depositional photograph at p97 shows eight staples.  There is no evidence of further treatment or ongoing symptoms.  There is no victim impact statement tendered.
10	You are to be sentenced as forming and/or joining an arrangement with your son to assault Hester and steal his car.  Your role was to prevent his immediate escape.  You knew that Tristian Scutcheon was going to assault and likely injure Hester.  You did not know he would have a weapon.  It must be found that there was some pre-planning.  It cannot be found that it was very long;  for example, measured by days before the offence.
11	The jemmy bar must have been taken to Hester's car by Tristian Scutcheon.  However, it cannot be found that you saw or knew about it.  
12	You were intercepted and arrested later that day on the Sunraysia Highway, south of Birchip.  You were driving the Toyota. 
13	I also heard Tristian Scutcheon's plea on 11 April.  He has been remanded for sentence on charges of armed robbery and intentionally causing injury.
14	There were some discussion between myself and counsel about the relevance of three text messages sent by you to the victim very soon after the offending.  They are recounted at paragraphs 32 to 36 of the tendered Crown opening.  They make reference to video footage of the assault, or Lucas Hester soon after, presumably being taken on your phone.  There is reference to this at paragraph 23 of the Crown opening.
15	Ultimately, Ms Mahady from the Crown did not put that these texts are circumstances aggravating your offending.  Also ultimately, I find, as stated earlier, their meaning and purpose to be not sufficiently clear.  They evidenced grievance and anger; also perhaps that (seen in combination with the phone video, which is not in evidence) there was a desire to humiliate your victim.  However, this becomes speculative.  I am not satisfied, consistent with the Crown concession that there are threats not to go to the police.  I find the texts and phone video neither aggravate nor mitigate your offending its circumstances.
16	You are a 46 year old man,  still living in Linton with your long term partner and 16 year old daughter.  You have four children, aged 16 to 27 years.  You own the house subject to a mortgage.  The relationship with your partner has had a number of separations, but has now lasted 28 years.  You were raised and educated in the Mildura area.  Since school, you have worked consistently in truck trailer manufacturing, tile manufacturing, cloth dyeing work and in food processing.  You can in the near future start work as a handyman with a property maintenance business.  I accept that you have worked consistently over time and acquired on the job a range of work capacities and skills.  
17	Mr Hands raised a serious accident when working on a car in 2011.  You suffered burns to 20 per cent of your body.  There were skin grafts to your neck and upper chest.  You instruct that you suffered depression in the wake of this.  I accept that as likely.  You were not treated.  It is also stated on your behalf that, in this situation, you began to use methamphetamine which continued for some years.  You reformed and became drug free, I was told, from about 12 months prior to this offending.  
18	Your criminal record is very limited and over 20 years up to almost 30 years old.    There are two pieces of offending conduct;  burglary and theft for which you received a bond without conviction in August 1993.  You were then aged 17.  You also received another non-conviction bond for cultivating cannabis in January 1995, aged 18.  Your criminal record is of very low,  I would find really no relevance.
19	Robbery and causing injury in the course of that is serious offending.  The circumstances of offending here make relevant sentencing considerations and purposes of your moral culpability,  particular here  general deterrence, condemnation of the offending and proportionate punishment.  A sentence of imprisonment is very common and what can be called a prima facie position. Here a man was attacked in a cruel and brutal way.  He was significantly injured.
20	However, there are also important moderating factors in your case.  They include the following.  
21	(1).   Your plea of guilty.  
22	(2).   What can be described as good character over many years, really the whole of your mature adult life, now being aged in your mid-40s.  Consistent with this you can be seen as a resilient,  consistent worker who has helped raise a relatively large family.  You have overcome difficulty such as what presents as a serious injury suffered in 2011 and the aftermath of that.
23	(3)  Consistent with these things, I see you as having good prospects of rehabilitation.  
24	(4)   There has been some delay since the offending.  
25	(5)   I also bear in mind the provisions of s5(4) of the Sentencing Act;  to be properly imposed an imprisonment must be the only way of meeting relevant sentencing purposes.  
26	(6)   This is given some further force by the consideration of the additional hardship to those imprisoned and presently caused by the Covid 19 pandemic.
27	Ultimately, I have come to the view that the relevant sentencing purposes here can be met by sentencing you to a community corrections order.  Bearing in mind the seriousness of your offending, that order should include significant punitive as well as rehabilitation conditions.  I have received the report of Glen Poleny of Community Corrections.  You are suitable for such an order.  Excuse me.  I am sorry.  I am wrong about the name of the author.
28	MS TAYLOR:  Yes.  It's James Jackson.
29	HIS HONOUR:  I have received the report of James Jackson of Community Corrections you are suitable for such an order. 
30	Having considered and weighed what I see to be the relevant matters, I sentence you as follows.  
31	On both the offences of robbery and recklessly causing injury, you are convicted, and I impose a community corrections order of three years duration.  The usual terms apply.  The additional terms are as follows.  That you perform 300 hours of unpaid community work.  Program hours can be set up against that.  That you be under supervision of a community corrections officer; that you receive treatment for drug abuse.  That you receive mental health treatment as directed.  That you take part in programs as directed specifically relating to this offending.
32	Had you not pleaded guilty, I would have imposed a sentence of two and a half years - sorry, two years with a minimum term of 12 months.  Are there other orders that need to be made in relation to any items or materials?
33	MS TAYLOR:  No, Your Honour.
34	HIS HONOUR:  All right.
35	MS TAYLOR:  Not that I am aware of.
36	HIS HONOUR:  Yes.  All right.  I presume that the weapon will be - something to be deposed or in the sentence of Tristian Scutcheon?
37	MS TAYLOR:  Of Tristian Scutcheon.
38	HIS HONOUR:  Yes, thank you.  All right.  That community corrections order is going to be printed out in a moment.  Stand up please.  This order will last for three years, so it starts today and ends on 12/04/2025.  The usual and compulsory terms are that you do not commit another offence for which you could be imprisoned during that time.  You must comply with a regulation that prohibits you from attending any appointment, programme or work site affected by alcohol or drugs or in possession of illegal drugs.  You must report to and receive visits from Community Corrections.
39	You must report to the relevant Community Corrections Centre at Ballarat within two days of the order starting.  You must let Community Corrections know within two days of a change of address or job.  You must not leave Victoria without getting their permission.  You must obey all lawful instructions of Community Corrections.  The additional conditions are that you perform 300 hours of unpaid community work over that three years.  All hours of treatment and program, treatment and/or rehabilitation undertaken can be set-off against that.  You must be under the supervision of a Community Corrections officer for that period.  You must undergo assessment and treatment for drug abuse or dependency as directed.  You must undergo mental health assessment and treatment as directed.  You must participate in programmes that particularly address factors related to this offending as directed.  You understand all of that?
40	ACCUSED:  Yes.
41	HIS HONOUR:  Do you agree to it?
42	ACCUSED:  Yes.
43	HIS HONOUR:  All right.  Well, I will get you to sign the order and then I will sign it.  All right.  Good.  Thank you.  I will sign and the other copy can be given to the relevant people.  Was I wrong about Leighton?  Is Leighton the town on the way to Avoca is it, from Ballarat?
44	MR HANDS:  Pardon?
45	HIS HONOUR:  Is Leighton the town on the way to Avoca from Ballarat, is it?  Or is it on the way to Hamilton?
46	ACCUSED:  It is on the way - well, from Leighton to - - - 
47	HIS HONOUR:  Well, if you start up at Ballarat, you would go to Linton and keep going and you get to Avoca?
48	ACCUSED:  No.  No.
49	HIS HONOUR:  It is on the Hamilton Road, is it?
50	ACCUSED:  Yes.  Yes.  (indistinct) that highway.
51	HIS HONOUR:  Good.  Thank you.  All right.  You can give him the order and he can come out of the dock.  All right.  Well, you have got that.  You are free to go now, Mr Scutcheon.
52	ACCUSED:  Pardon?
53	HIS HONOUR:  You can go now if you wish.  He can leave, can't he?
54	MS TAYLOR:  Yes.  Yes, Your Honour.
55	HIS HONOUR:  Yes.  All right.  Now, is there - yes, thank you Mr Hands for your assistance.  We will turn you off.
56	MR HANDS:  Thank you very much, Your Honour.
57	HIS HONOUR:  Good.  Thank you.  Now, is there anything else that we need to do today?
58	MS TAYLOR:  No, Your Honour.  That's it.
59	HIS HONOUR:  All right.  What is the usual to adjourn the remaining matters on the list to a next circuit?
60	MS TAYLOR:  Yes, Your Honour.
61	HIS HONOUR:  Which is when?
62	MS TAYLOR:  August.
63	HIS HONOUR:  The registrar is of the view that it might be July.
64	MS TAYLOR:  Well, we have been adjourning I think until August.
65	HIS HONOUR:  We have, I know.
66	MS TAYLOR:  Yes.
67	HIS HONOUR:  I will adjourn or make it to the next circuit.
68	MS TAYLOR:  To the next circuit.  Yes, Your Honour.
69	HIS HONOUR:  All right.  Thank you for your assistance during the course of this circuit.
70	MS TAYLOR:  Thank you, Your Honour.
71	HIS HONOUR:  And could you pass on my thanks to Ms Mahady?
72	MS TAYLOR:  I will do, Your Honour.
73	HIS HONOUR:  And thank you, Ms Taylor for your help.  All right.
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