DPP v Mercer [2014] VCC 1757 (23 October 2014)

County Court of Victoria

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DPP v Mercer [2014] VCC 1757 (23 October 2014)

Last Updated: 12 November 2014

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS
v
SCOTT MERCER (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 October 2014
CASE MAY BE CITED AS:	DPP v Mercer
MEDIUM NEUTRAL CITATION:	[2014] VCC 1757

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms C Burnside
For the Accused	Mr I Polak

HER HONOUR:

1. Scott Mercer[1], you have pleaded guilty before me to five charges of common law assault, one charge of intentionally causing injury, one charge of threatening to inflict serious injury and one charge of false imprisonment.
2. The facts underlying your offending are as follows. You have been in an on-and-off relationship with the victim in this matter, Amy Nichols[2] - and I just make the point that pseudonyms will be inserted in this matter. That is why I am using the true name of the victim at this time - for about 12 months. You were 29 and she was 21. At the time of this offending the two of you had been living in a house in Carrum Downs for about two and a half weeks.
3. On the afternoon of April 14, 2012 you began accusing her of trying to return to Morwell, where she had been living. You took her handbag and mobile phone and left the house. The next morning you came back, kicking open the door, breaking off part of it which contained the lock and chain. Soon after, you began smoking ice in the kitchen, abused the victim and left again. When you returned, you charged at Ms Nichols with the part of the front door you had previously broken off. She ran out and was consoled by friends who had arrived for a barbecue at the house. That barbecue continued until after 10 pm, during which time people generally drank alcohol, you at one stage going with two others into the bathroom for about 45 minutes, where it is understood you used drugs.
4. Once the guests left, you accused Ms Nichols of concealing drugs and ordered her to strip naked. She did this and you then searched her body in the process, inserting your fingers in her vagina. You pulled her into the bedroom, saying to her repeatedly "I will find out what you're hiding, you cunt. Just you wait." You continued questioning her, becoming increasingly angry and aggressive, demanding that she tell you where she had got drugs from. In the course of this questioning you slapped her to the face on a number of occasions; these actions underlying Charge 1 on the indictment, common assault.
5. You then punched her to the head with a clenched fist specifically to the left side of her face area; these charges underlying Charge 2, intentionally causing injury.
6. Ms Nichols was, by then, in a foetal position on the side of the bed, protecting her head. You picked her up by the hair and threw her back on the bed. She then sat up and put her feet on the floor and you stood on them. These actions underlie Charge 3 on the indictment, common assault.
7. You then took a wire coat hanger and said to Ms Nichols, "This is what it comes to. Is this what you're making me do because you can't tell the truth?" and whipped her across the hand; these actions underlying Charge 4 on the indictment, common assault.
8. You kept slapping and whipping her while Ms Nichols begged you to stop, in the course of this, losing control of her bladder and urinating on the bed, you having earlier refused her request to use the toilet. You then threw her on the couch and questioned her about her relationship with a friend who had been at the barbecue. She denied any relationship, and you grabbed her hair and banged her head into the wall, saying, "I'm gonna knock you out, then wake you up and see what your answer is. You also said, "I will cut your bush off, cunt. Do you think I won't?" These threats underlie Charge 5 on the indictment, a threat to inflict serious injury.
9. You then punched Ms Nichols with a clenched fist to the stomach; those actions underlying Charge 6 on the indictment, common assault.
10. She moved towards the bedroom, where you pushed your knee into her chest while she was lying on her back on the bed, preventing her from breathing. These actions underlie Charge 7 in the indictment, common assault.
11. In the course of this, the bed base was damaged and you jumped up and grabbed Ms Nichols by the hair and took her to the kitchen, then back to the bedroom, where you told her to get down on her belly. She complied with this. You then became distracted upon hearing something and went to the window, and Ms Nichols still naked, ran outside to a neighbouring house some doors away, raising the alarm. By this stage she had been confined by you to the premises for several hours.
12. These actions underlie Charge 8 on the indictment, false imprisonment. Apparently once Ms Nichols got out, she just kept running in order to get away from you until she arrived at No.81, a house about 20 houses away from yours. The young woman who answered the door was unknown to her. She gave her a sheet to cover herself, and Ms Nichols immediately asked her to call police and lock the doors.
13. Ultimately Ms Nichols was taken to the Frankston Hospital, where she was noted to have suffered a black eye, multiple small bruises to her forehead, bruising on the cheekbone and jaw, bruising on the inner part of her ear, a laceration in her ear, bruising on her arms, wrists and elbows, an abrasion on her ribcage and bruising on her buttocks, upper and mid thigh, abrasions on her knees and tenderness to the toes.
14. You later visited a former girlfriend, Ms Jackson, telling her you had used your fist to hit Ms Nichols in the face because she would not do what you wanted her to, stating that you had "Hurt her bad" and you could not stop hitting her. You then passed out on the kitchen table, Ms Jackson observing that you were "off his head on ice and alcohol."
15. The next morning, while still at Ms Jackson's place, you asked to be dropped off at Carrum Downs to meet your brother, saying you needed to "do a runner from the cops" because they were after you for what you had done to Amy. You told her not to tell anyone where you were going or that she had seen you and to tell police you were going to Tasmania, when in fact you were actually going to Queensland.
16. On May 10, 2012 you were arrested in Cloncurry, Queensland. You conducted a largely "no comment" record of interview with police, but in the course of it, said Ms Nichols had "told a whole heap of lies."
17. The maximum term of imprisonment for common law assault is five years; the maximum term for intentionally cause injury is ten years' imprisonment; the maximum term for threatening to inflict serious injury is five years' imprisonment; and the maximum term for false imprisonment is ten years' imprisonment.
18. I now turn to your personal circumstances. You are 31 years old, the youngest of four children born to your parents, who emigrated to this country from Lebanon. Your father, who is now retired, previously worked in the insurance industry and operated some food businesses, and your mother assisted in the family business. Neither parent has ever been in trouble with the law. Your two older brothers, now aged 37 and 34, have run food businesses and restaurants. Both have been gaoled previously for various offences, including drug use, though your counsel informed me their last periods of incarceration were about ten years ago. You have a 35 year old married sister living in Lebanon.
19. Your parents were apparently strict and authoritarian, and the family returned to live in Lebanon for about two years when you were in Grade 5 and 6. You then attended the Mordialloc-Chelsea Secondary School to Year 8 when you were told to leave after being involved in a fight, then attended Frankston TAFE for a year, the equivalent of Year 9, undertaking a food and beverage course. At age 15 you started to work with family friends in the hospitality industry, then worked with your father at a pizza shop in Seaford and, on his advice, became the owner of a pizza shop in Dandenong, though a brother was the primary operator.
20. In your mid-twenties you worked at Coca Cola then left because of a drug habit you had refused, since then intermittently working as a carpenter's labourer in the building industry up to the time of this offending in April 2012. You have remained in custody since committing these offences.
21. In terms of your drug history, you began smoking cannabis when you were 14, which you thereafter used daily. At age 16 you began smoking and snorting amphetamines, and at age 17 began experimenting with ice, ecstasy and LSD. By your early twenties you were using ice daily or every second day, then for a period of about two and a half to three years you remained drug-free, during which time, as I have said, you worked for Coca Cola and became very involved in attending the gym. You then resumed ice on a daily or second daily basis, which habit continued up to the time of this offending.
22. You told psychologist, Jeffrey Cummins, whose report dated 21 August 2014 was tendered on the plea, that you regularly engaged in five to six day ice binges, stopping for a day or two in between sessions. You recalled once spending about six days undergoing drug and alcohol detoxification at a facility in Abbotsford in 2010 or 2011, but otherwise could not recall any rehabilitative treatment.
23. You also told psychologist, Bob Ives, whose old report dated 18 April 2011 was also tendered on the plea, that for many years you had a problem with alcohol, upon which you said you became very dependent, leading to repeated drink driving charges.
24. You have a fairly extensive prior criminal history which began in 1999 with a shoplift charge, which was dealt with by the Frankston Children's Court.
25. In 2002 you received 12 months' detention in a youth training centre for armed robbery and theft, which your counsel informed me involved a group of youths, of which you were one, holding up a person with a pair of scissors. You had no memory of what was taken.
26. In 2007 you were placed on a community-based order and suspended sentence for driving whilst disqualified and criminal damage.
27. In 2009 you were placed on a 12 month intensive corrections order for unlicensed driving and refusing to accompany police for a breath test.
28. In 2011 you were placed on a suspended sentence by the Latrobe Valley Magistrates' Court on charges of driving whilst disqualified, refusing to accompany police for a breath test, speeding and use of an unregistered vehicle.
29. In August 2011 you were fined $500 by the Melbourne Magistrates' Court for recklessly causing injury, which was an assault you apparently became involved in whilst drunk. You were also, around this time, were placed on the Court Integrated Services Program, which you did not complete.
30. Then in December 2012 you were ordered to serve the unexpired portion of an intensive corrections order, which you had breached, amounting to 361 days. You were also dealt with for breach of suspended sentence, and the effective total term of six months was reimposed and you were sentenced to six months' imprisonment as well on the breaching charges of driving whilst disqualified and refusing to undergo a breath test.
31. In August 2013 you were sentenced to a total effective sentence of four months for charges of shop theft, intentionally damaging property, contravening a family violence order, which apparently involved Ms Nichols, failing to answer bail and criminal damage.
32. Finally, in July of this year you were fined $1,000 on charges of affray and attempted possession of amphetamine.
33. As I have said, you have remained in custody since your arrest on May 11 2012.
34. According to Mr Cummins, who interviewed you in gaol on August 17, 2014, you did not present as having an antisocial personality disorder or antisocial personality style, but presented with a dependent personality style and did acknowledge some of the characteristics of a borderline personality disorder. You reported feeling reasonably settled in the prison environment.
35. You have also undergone some significant medical difficulties, specifically a heart attack, at which time you were being held in Fulham Prison and spending four days from 6 to 10 January 2014 in St Vincent's Hospital, where two stents were inserted into your arteries.
36. You are working as a kitchen billet. You told Mr Cummins the heart attack had made you very conscious of your health. You also told Mr Cummins that you had been an intermittent but heavy gambler on pokies and via the TAB since you were aged about 18, admitting you also probably had a gambling problem.
37. You have had three main relationships, the first lasting for about seven years, from ages 19 to 26 with Ms Jackson, and for two years with a woman named Abby, who left you to resume a relationship with her ex-partner, and then Ms Nichols. You were in a relationship with her for about 12 months. Your parents have apparently disapproved of each relationship. You told Mr Cummins that Ms Nichols, Abby and Ms Jackson were frequent drug users, that is, users of cannabis, amphetamines and ice. As I have said, you were dealt with for contravening a family violence order Ms Nichols had taken out against you.
38. You told Mr Cummins that at the time of the offending against Ms Nichols, you snapped, “lost it”, were drunk and under the influence of ice. You said you were ashamed and very remorseful, that you deserve to be punished and deserve to sentence in relation to this. You also told Mr Cummins you believed the main reason you offended was because of the influence of drugs and alcohol but believed the relationship itself had become quite turbulent, which you attributed to Ms Nichols’ drug use.
39. Mr Cummins concluded:

"At interview he repeatedly emphasised there was no excuse for his offending behaviour. In my opinion, he appeared to be genuinely and rigorously remorseful concerning his offending."

40. Indeed, he described your contrition and embarrassment as "the most striking aspect" of your presentation. He believed you may be suffering from a drug and/or alcohol-related acquired brain injury. Ultimately it was Mr Cummins' view that your life had been significantly adversely affected by your chronic dependency on alcohol and drugs. You told him you were adamant you did not wish to resume illicit drug use and that you had decided to stop drinking alcohol for the rest of your life.
41. There was a report of an adjustment disorder with depressed mood which Mr Cummins believed was triggered directly by your feelings of guilt and shame over your offending against Ms Nichols. He also noted you had memory difficulties.
42. Mr Cummins stated:

"In my opinion, drugs and alcohol would have had a disinhibiting effect at the time of his offending and he may at that time have been experiencing a heightened level of paranoia which was drug and/or alcohol-induced. Nevertheless, his offending occurred against a relationship background which was clearly characterised by turbulence."

43. You have completed a violence intensive program in custody and Mr Cummins said that based upon his assessment of you, your "prognosis would appear to be guardedly favourable." He did believe, however, that your ultimate prognosis was very much linked to whether or not you returned to alcohol and drug use. He believed you suffered from chronic low self-esteem, both as a result of your parents' disciplinarian attitudes and because, whilst you were in Lebanon, as a child you were sexually abused, a matter about which you had told no-one.
44. The offending, of course, is extremely serious. Whilst the injuries suffered by Ms Nichols were not in and of themselves, or even in combination, such that you have been dealt with for the infliction of serious injury, they were nevertheless numerous, widespread over her body, inflicted in a humiliating situation, where she was confined and forced to strip naked over a period of hours and you caused her such terror that she ran naked from her home, running in this condition for a distance of about 20 house blocks before seeking help from people previously unknown to her. This was a very nasty and serious example of domestic violence, and when you told Mr Cummins that you deserved to be dealt with by way of a sentence of imprisonment, you were absolutely correct.
45. In her victim impact statement, Ms Nichols said she had suffered a huge emotional and psychological impact as a result of your offending. She continues to experience what she described as vivid and frightening nightmares of being trapped and about to die on at least about a monthly basis. She suffered extreme depression and, shortly after this attack, experienced her first panic attack, having then gone on to suffer close to ten panic attacks in the subsequent two years. On a couple of those occasions she has ended up in hospital. She has developed major anxiety, finds it difficult to socialise with friends and family, finds it difficult to cope in public places and detailed one occasion where she suffered a panic attack in a bank for no reason. She stated she was healing well and was a stronger person today but would never be the same again. She said the physical injuries she suffered healed about a month after the crime. I should add that the

consequences she has described are utterly unsurprising to this court and are commonly experienced by victims of nasty domestic violence such as this.

46. She also detailed the financial impact of your offending, stating that about a week after she left her home for about that period of time, when she returned home, all her belongings had gone, from small personal effects, including photographs of her children, to expensive furniture. Her daughter's photograph, birth certificate and jewellery were gone. Ms Nichols’ daughter died when she was four months old, so this was a particularly tragic loss to her. Apparently Ms Jackson contacted her later and said she had some of Ms Nichols’ belongings, but she has never gone to get them back again. Her identification documents were stolen and her bank account accessed and money taken. She had previously owned a house which she had sold weeks prior to this offence and lost all moneys from this. She said, "I'm not sure I'll ever have a normal happy relationship with a man again."
47. In relation to the loss of her possessions and her money, no charges have been laid against you in relation to this and I cannot find that you are responsible for them, but I am satisfied that Ms Nichols’ most unsurprising absence from her home after your brutal attack upon her and during which all these items were taken was caused by your offending against her and created an opportunity for the removal and permanent loss to her of these possessions and money by whomever took them.
48. The plea was entered at a very late stage, essentially just before trial. A contested committal was conducted and I have had access to the intercept material, namely to telephone conversations you had with other persons from the gaol, and the way in which you spoke of Ms Nichols on some occasions does not line up with the embarrassment and remorse you expressed to Mr Cummins.
49. You sought to flee the consequences of your actions, were unco-operative with police in your interview and sought to blame Ms Nichols. I do not necessarily express the expressions of remorse you made to Mr Cummins. You have a long history of drug and alcohol abuse. You have a persistent offending history and I accept Mr Cummins' view that your prospects of rehabilitation must be judged to be guarded.
50. It may be that the extended period which you have spent in prison and the suffering by you of a heart attack at such a young age will lead you to desist from drug and alcohol abuse, only time will tell.
51. I do accept you are ultimately presented on charges, significantly less serious than those contained on an earlier indictment, and that by your plea, you have saved the community the time and expense of a trial, and saved Ms Nichols from the ordeal of giving further evidence.
52. You have also used your time in gaol fairly productively, undertaking courses and I received three urine analysis certificates dated 8 July, 21 August and 17 October 2012 which proved negative for illicit drug use.
53. I do accept the attack you unleashed upon Ms Nichols occurred whilst you were under the influence of drugs and alcohol, but this is not the first time you have appeared in court charged with offending arising from your relationship and mistreatment of her. I refer to the contravention of the family intervention order and the property damage charges for which you were dealt with in 2013.
54. Generally speaking, the courts are expected to take a very stern view of nasty, violent, domestic offending in this case, aggravated by the false imprisonment you imposed upon Ms Nichols, together with the humiliation of her circumstances. As I have said, this is a serious example of such offending behaviour.
55. In my view, and it was not seriously argued otherwise, there is no other appropriate disposition other than a term of imprisonment to be immediately served. To date, you have spent about 22 months in prison. In my view, this does not appropriately reflect the seriousness of your offending. I therefore sentence you as follows, could you stand up please.
56. On Charge 1, you are sentenced to nine months imprisonment. On Charge 2, you are sentence to 18 months imprisonment. On Charge 3, you are sentenced to three months imprisonment. On Charge 4, you are sentenced to three months imprisonment. On Charge 5, you are sentenced to nine months imprisonment. On Charge 6, you are sentenced to nine months imprisonment. On Charge 7, you are sentenced to three months imprisonment, and on Charge 8, you are sentenced to 18 months imprisonment.
57. The base sentence will be the sentence imposed upon Charge 2. I order that you serve four months of the sentence imposed on Charge 1. One month of the sentences imposed on Charges 3, 4 and 7. Four months of the sentence imposed on Charge 5. Four months of the sentence imposed on Charge 6, and nine months of the sentence imposed on Charge 8, cumulatively to the sentence imposed upon Charge 2 and all other sentences.
58. The total effective sentence is therefore three years and six months, and I order that you serve a minimum term of two years and six months before becoming eligible for parole.
59. Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would sentence you to a term of imprisonment of four years, and order that you serve a minimum term of three years. I think that is all that I need to attend to. Now can we just check that my maths is right. There's 18 months on Charge 2. Add to that four months on Charges 1, 5 and 6. One month on each of Charges 3, 4, and 7.
60. MS BURNSIDE: Yes.
61. HER HONOUR: And nine months in relation to Charge 8.
62. MS BURNSIDE: Yes, Your Honour. In so far as previously served detention.
63. HER HONOUR: Yes, that's right. What is it?
64. MS BURNSIDE: That figure, we'll just get it for you, Your Honour.
65. HER HONOUR: Is it the disposal order that I need to change?
66. MS BURNSIDE: Yes, the disposal orders of the wooden lock and various other matters, Your Honour.
67. HER HONOUR: Pardon? I mean some of it was a sentence imposed whilst he was in gaol.
68. MS BURNSIDE: Yes. So, Your Honour, it's the previously served detention amount is that of 290 days not including today.
69. HER HONOUR: All right. I declare that you have already served 290 days of the sentence by way of pre-sentence detention. Yes, thank you, I have signed the disposal order. You can take Mr Mercer down, thank you. Perhaps you better stay sir, they are still arguing over them. All right, I have got another matter and this actually should have been sorted out before I came on the Bench.
70. MS BURNSIDE: Yes, Your Honour. Could we please have a few minutes to make sure this is right?
71. HER HONOUR: Well does Mr Mercer need to stay in the dock? Mr Polak, does Mr Mercer need to stay in the dock whilst this is done?
72. MR POLAK: I suppose not, I'll be seeing him downstairs.
73. HER HONOUR: All right. I'll stand it down whilst this is done.
74. MS BURNSIDE: Yes, Your Honour.

(Short adjournment.)

75. HER HONOUR: Yes, thank you.
76. MS BURNSIDE: Your Honour, thank you for that period of time.
77. HER HONOUR: Yes.
78. MS BURNSIDE: Your Honour, I note that already within the course of your sentence you had said I've taken into account the fact that you have been in gaol since 10 May 2012.
79. HER HONOUR: Yes.
80. MS BURNSIDE: I note that, that you've said that, and as per s.18, that amount of time needs to be specified, and I'm reliably instructed that that period is that of 896 days.
81. HER HONOUR: Yes.
82. MS BURNSIDE: Now, part of the portion of that which relates to this offending.
83. HER HONOUR: Yes.
84. MS BURNSIDE: Is that of 290.
85. HER HONOUR: Yes.
86. MS BURNSIDE: I think that was specified before. The other figure therefore is 606 days. That is a total for which he was in custody for other matters.
87. HER HONOUR: Other matters. All right, so it's 800.
88. MS BURNSIDE: It's 896 days, Your Honour.
89. HER HONOUR: Yes.
90. MS BURNSIDE: In total.
91. HER HONOUR: Right.
92. MS BURNSIDE: The entire period of incarceration, it's 290 of previously served detention, specific to - - -
93. HER HONOUR: Yes, that's fine.
94. MS BURNSIDE: This incident, and therefore it's 606 days.
95. HER HONOUR: Yes.
96. MS BURNSIDE: For other matters.
97. HER HONOUR: Yes, thank you.
98. MS BURNSIDE: Also Your Honour, before we close, my learned friend has a misgiving about I think parole and whether or not that was taken into account as well, the fact that he lost his opportunity for parole whilst serving time.
99. HER HONOUR: It was never ever mentioned to me on the plea. So I don't see why I - - -
100. MR POLAK: It was, Your Honour.
101. HER HONOUR: I don't think it was, Mr Polak. All right, well I will state the following.
102. MS BURNSIDE: Yes, Your Honour.
103. HER HONOUR: I note that you have been in custody since your arrested in 2012, and that you have therefore been in custody for a period of 896 days, 606 days of that was served as a sentence for other offending. That means there is pre-sentence detention of 290 days.
104. I note that you lost your opportunity for parole because of these matters. These are all matters that I have taken into account in determining the appropriate sentence in this matter.
105. MS BURNSIDE: Yes, Your Honour. Your Honour pleases.
106. HER HONOUR: Thank you.
107. MS BURNSIDE: May we be excused?
108. HER HONOUR: We'll stand down to 10.30, thank you.

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[1] A pseudonym

[2] A pseudonym