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District Court 30 August 2024

R v Scroop

[2024] NSWDC 515

Assault & violenceDrugsDomestic & family violence

Citation: R v Scroop [2024] NSWDC 515
Court: District Court of New South Wales
Date: 30 August 2024
Judge: Haesler SC DCJ

Background

The offender was arrested in March 2023 following a complaint by a woman who had been in a brief relationship with him at Port Kembla. Police found her in an extremely distressed state with visible injuries. She reported a sustained campaign of physical and verbal abuse across multiple incidents between February and March 2023.

The offending included six assaults causing actual bodily harm, the use of a machete-style knife with a threat to kill, and the cultivation of two cannabis plants at the offender's premises. The assaults ranged from striking the victim with a fishing pole and throwing a can of bourbon at her face, to biting her ear (leaving permanent scarring) and placing fingers in her throat to obstruct her breathing.

The offender had an extraordinarily lengthy custodial history. He first entered custody in 1993, was released briefly, committed murder, served a significant sentence, and had spent only approximately three of the preceding 33 years in the community. His most recent parole, granted in November 2021, represented the longest he had lived outside custody as an adult.

  • How to assess the objective seriousness of each offence, individually and as part of a pattern of domestic violence
  • What weight to give the offender's prior criminal history, including a previous conviction for murder, in circumstances where proportionality to the current offending must be maintained
  • How subjective factors, including severe institutionalisation, deprived and abusive childhood, mental health issues, and drug dependency, should affect the sentence
  • Whether special circumstances existed to justify extending the parole period beyond the statutory norm
  • How to treat the cannabis-related offences given their relative minor nature alongside the violent offending

Decision

Haesler SC DCJ assessed each offence individually before arriving at an aggregate sentence through the process of instinctive synthesis. His Honour declined to place each offence on a notional scale of objective seriousness, finding that approach unhelpful, and instead focused on the nature of each act and the harm caused. The domestic context of all offending, the targeting of a single victim, and the pattern of power and control were treated as significant aggravating features. The threat to kill with a machete, the assault causing permanent scarring, and the obstruction of the victim's breathing were identified as the most serious individual acts.

The offender's criminal history was considered under the principles in Veen v The Queen (No 2), which permits a more severe penalty to be imposed where an offender's history shows the current offending is not an aberration but a continuation of violent conduct. However, the Court was careful to note that the history could not produce a sentence disproportionate to the gravity of the current offending. A 25% discount was applied to each indicated sentence in recognition of the utilitarian value of early guilty pleas. His Honour expressed doubt that the offender possessed sufficient insight to characterise his attitude as genuine remorse, describing it instead as regret at having failed again in his attempts to reintegrate into the community.

The Court engaged in considerable analysis of the offender's subjective circumstances, drawing on the principles in Bugmy v The Queen. His Honour acknowledged the offender's deprived and institutionalised upbringing, including childhood sexual abuse in institutional care, his long-term drug dependency, and his significant mental health difficulties. These factors were treated as relevant to moral culpability but were noted not to diminish the seriousness of the harm inflicted on the victim. His Honour observed that the extended supervision the offender received during his most recent parole period had been the single most effective factor in keeping him offence-free, and that once that supervision reduced in intensity, he reoffended.

A finding of special circumstances was made, extending the parole period beyond the standard ratio. The rationale was that a longer supervised period in the community, replicating the intensive support structure that had previously worked, offered the best prospect of protecting the community and assisting the offender. The cannabis cultivation offences were dealt with under section 10A of the Crimes (Sentencing Procedure) Act, recording a conviction with no further penalty, given their minor nature relative to the overall offending and the limited utility of any additional order.

Orders Made

  • Cannabis cultivation offence and cannabis possession matter on the Form 1: conviction recorded, no further penalty (s 10A Crimes (Sentencing Procedure) Act 1999)
  • Sequence 4 (assault with fishing pole): indicated sentence of 1 year and 10 months
  • Sequence 9 (use of offensive weapon with intent, including Form 1 matters): indicated sentence of 2 years and 3 months
  • Sequence 7 (unprovoked punch to head): indicated sentence of 9 months
  • Sequence 8 (throwing bourbon can at victim's face): indicated sentence of 9 months
  • Sequence 13 (biting causing permanent scarring): indicated sentence of 1 year and 10 months
  • Sequence 14 (grabbing hair, bra and top causing bruising): indicated sentence of 9 months
  • Sequence 15 (pushing from chair and obstructing breathing): indicated sentence of 1 year and 6 months
  • Aggregate sentence: 4 years imprisonment, commencing 22 March 2023
  • Eligible for parole consideration: 21 September 2025
  • Parole period: 1 year and 6 months (special circumstances found)
  • Total sentence expiry: 23 March 2027

Key Takeaways

  • An offender's lengthy history of violent offending permits a heavier emphasis on retribution, personal deterrence, and community protection at sentencing, but cannot produce a sentence disproportionate to the objective gravity of the current offences, consistent with Veen v The Queen (No 2).
  • Subjective factors such as severe institutionalisation, a deprived and abusive childhood, and long-term drug dependency retain mitigating relevance under Bugmy v The Queen, even where the offending is serious and persistent.
  • A finding of special circumstances, extending the parole period, may be made where the evidence shows that intensive community supervision has previously been the most effective mechanism for preventing reoffending.
  • Obstruction of breathing during an assault was identified as a particularly serious feature, on the basis that unintended fatal consequences can result, even where the charge is assault occasioning actual bodily harm rather than a more serious offence.
  • Where cannabis-related offences are relatively minor in the context of overall proceedings and would not have attracted a custodial sentence if dealt with in the Local Court, the District Court may record a conviction with no further penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 33B(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 10A
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(1)(a)

Cases
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Munda v State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
- Ridgeway v R [2024] NSWCCA 152