Director of Public Prosecutions v Kruik
[2022] VCC 1589
•9 September 2022 (Offenders Kruik and Seccull)
| IN THE COUNTY COURT OF VICTORIA AT Geelong CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-22-00904
CR-22-01025
Indictment No. M12717001
N10201748
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COURTNEY KRUIK |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW JOHN SECCULL |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Geelong | |
DATE OF PLEA HEARING: | 13 July 2022 (Offender Kruik) | |
DATE OF SENTENCE: | 9 September 2022 (Offenders Kruik and Seccull) | |
CASE MAY BE CITED AS: | DPP v Kruik | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1589 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One charge of home invasion, four charges of theft and four summary charges of trespass (Offender Kruik)
One charge of home invasion, one charge of committing an indictable offence whilst one bail and one charge of unlicensed driving (Offender Seccull)
Legislation Cited: Sentencing Act 1991; Confiscation Act 1987
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: 3 years and 6 months, wih a non-parole period of 21 months. S6AAA: 5 years and 6 months, with a non-parole period of 3 years. (Offender Kruik)
3 years and 6 months imprisonment, with a non-parole period of 2 years and 4 months. S6AAA: 5 years and 6 months, with a non-parole period of 3 years (Offender Seccull).
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Moore | Solicitor for Director of Public Prosecutions |
| For the Offender Kruik | Mr N Rolfe | Rolfe Criminal Law |
| For the Offender Seccull | Mr J Karitzis | Gallant Law |
HER HONOUR:
1Courtney Kruik, you have pleaded guilty to one charge of home invasion, which carries a maximum penalty of 25 years’ imprisonment and four charges of theft, each of which carries a maximum penalty of 10 years’ imprisonment. In addition, you have consented to four summary charges being heard in the County Court and have pleaded guilty to those charges. They are four charges of trespass, each of which carries a maximum penalty of six months’ imprisonment or 25 penalty units.
2The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea.[1]
[1] Exhibit “A-1”
3Andrew John Seccull, you have also pleaded guilty to one charge of home invasion, which carries a maximum penalty of 25 years’ imprisonment. In addition, you have consented to two summary charges being heard in the County Court and have pleaded guilty to those charges. They are Charge 2, committing an indictable offence whilst on bail, which carries a maximum penalty of 30 penalty units or three months’ imprisonment, and Charge 4, unlicensed driving, which carries a maximum penalty of 60 penalty units or six months’ imprisonment.
4The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea.[2]
[2] Exhibit A-2”
5Charge 1, home invasion, to which each of you have pleaded guilty, was committed on 17 December 2021. At approximately 12:30am, you both entered the home of Mr James Charles and his family at Clifton Springs. You gained access via a laundry door and went through various items of property belonging to Mr Charles, his wife and his children, all of whom were sleeping upstairs at the time. This is the basis of Charge 1, home invasion.
6At approximately 4:30am, Mr Charles came downstairs and observed that the lights were on and that clothing and other items were spread around the house. He found that the keys to his blue Subaru Forester wagon were missing and looked outside to find that his vehicle had been stolen. This is the basis of Charge 2, theft of a motor vehicle, to which you, Ms Kruik have pleaded guilty. A couple of weeks later on 4 January 2022, Mr Charles’ Subaru was located, however, the exhaust, SD card, VIN plates and tow bar had been removed and various parts had been painted black and there were multiple small scratches and dents on the vehicle.
7Eight days later, on Christmas Day, Mr Martin Sanders who lived at Canopus Crescent in Lara, awoke to the sound of a vehicle being driven up and down his street. He went outside and observed a blue Ford Falcon sedan which was driven up and down his street twice more before driving off at a fast speed. He subsequently discovered that CCTV footage which depicted you Ms Kruik, creeping along his side fence and approaching his front door and then appearing to walk away distressed when you spotted the CCTV camera. This is the basis of summary Charge 8, trespass, to which you, Ms Kruik, have pleaded guilty.
8The CCTV footage from Mr Sanders’ home shows you and a male associate walking up and down the street shining a torch into Mr Sanders’ house and other houses.
9At approximately 7:00am Mr Steven Rees, who lived at Canopus Crescent, noticed that his shed door, which had previously been shut, was open and items from within the shed had been scattered across his back yard. His yard was able to be accessed through a side gate. A fishing rod, internet dongle and lighter had been stolen from the shed. This conduct is the basis of Charge 5, Theft, on the indictment, and summary Charge 11, trespass, to which you, Ms Kruik, have pleaded guilty. Mr Rees later found the missing items near a side fence.
10At approximately 10:30am, Renee Davis who lives at a Unit at Campus Crescent, noticed that her shed door, which had been previously shut, was wide open and that her whipper snipper had been stolen. Her shed was also accessible from a side gate which was slightly open, but had been left shut the night before. Boxes of items in the shed had been rummaged through and strewn on the ground. This is the basis for Charge 3, theft, on the indictment, and summary Charge 10, trespass, to which you, Ms Kruik, have pleaded guilty. That evening Ms Davis’s whipper snipper was found by a neighbour near the mailboxes at the front of the units in which Ms Davis lived.
11Also, at around 10:30am on Christmas morning, Samantha Beggs, who lived at Canopus Crescent, noticed that various items of property which she had stored along the side of her house had been disturbed and that an Audio Sonic sound bar had been stolen. This is the basis of Charge 4, theft, on the indictment, and summary Charge 5, trespass, to which you, Ms Kruik, have pleaded guilty. Later that day Ms Beggs’ soundbar was located by a neighbour on their front lawn.
12Mr Seccull, you committed the offence of home invasion while you were on bail for two different episodes of offending. On 24 July 2021, you had been charged with possessing methylamphetamine and granted bail to appear before the Ballarat Magistrates Court on 17 February 2022. Further, on 12 October 2021, you appeared before Geelong Magistrates’ Court on three charges of theft of a motor vehicle, one charge of theft, one charge of possessing GHB and two charges of committing an indictable offence while on bail. These offences had allegedly been committed on 23 and 24 August 2021, and you were granted bail to appear at Geelong Magistrates’ Court on 3 May 2022. In committing the home invasion, you breached each of those undertakings of bail, and this forms the basis of Summary Charge 2, to which you have pleaded guilty.
13Shortly after committing the home invasion on 17 December 2021, you, Mr Seccull, drove the Subaru Forrester wagon, which had been stolen from Mr Charles at an address on Jetty Road, west along the western foreshore road at Geelong and into a drive-through bottle shop in Malop Street, where you exited and purchased alcohol and then got back into the vehicle. Ms Kruik was your passenger. As previously mentioned, the vehicle was ultimately recovered on 4 January 2022 in an altered and damaged condition.
14I shall deal, first, with the plea made on your behalf, Ms Kruik.
15On 30 December 2021, police arrested you at your grandmother’s home. They seized your phone on which you had taken two videos of yourself and Mr Seccull inside Mr Charles’ home and going through property. Your voice can be heard on these videos. There were also videos taken from inside Mr Charles’ Subaru as it was being driven by Mr Seccull along Western Foreshore Road and in Malop Street, Geelong on the same day. In addition, your fingerprints were located on the Audio Sonic soundbar stolen from Ms Beggs’ property.
16Ms Kruik, when you were interviewed on 30 December 2021, you denied knowledge of the offending, claiming that you had spent Christmas Day at Avalon Beach and were at friend’s house, albeit that you admitted that you and a friend “Wayne” did drive down Canopus Crescent at 9:00am on Christmas morning. You denied that it was you depicted in still photographs taken from CCTV footage at Mr Sanders’ house. When shown the videos on your phone, you made up an elaborate story about them having been sent to you. Later, you stated that both of you had just walked in and then out of Mr Charles’ home and, then, Mr Seccull had come along in the stolen car and said, “get in”. You stated that you had exited from the Subaru car after you had a fight, following which Mr Seccull took the car to Ballarat.
17You are presently aged 24 years, almost 25 years, having been born in September 1997. You come before the court with the following criminal history, which you have admitted:
· On 19 August 2019 you appeared before Geelong Magistrates’ Court for careless driving, failing to stop after an accident, being a learner driver without an experienced driver present and driving without “L” plates displayed. Without conviction, the matter was adjourned for a period of 12 months.
· On 10 March 2020 you came before the Geelong Magistrates’ Court for burglary, attempted theft, being a learner driver without an experienced driver being present, committing an indictable offence whilst on bail and theft of a motor vehicle. You were convicted of these offences and ordered to undertake a Community Correction Order for 12 months, which amongst other things, involved a condition that you undergo assessment and treatment for drug abuse and dependency.
· At Geelong Magistrates’ Court on 31 May 2020, you were found to have breached that Community Correction Order and no further order was made on the breach. However, you were also before the court for possessing amphetamine, dishonesty assisting in the retention of stolen goods and possessing a controlled weapon without excuse. You were convicted of those other three offences and again placed on a Community Correction Order for a period of 12 months which, amongst other things, included a condition that you undergo assessment and treatment for drug abuse and dependency, as well as for your mental health.
18It is an aggravating feature of the offending for which I must sentence you that you were on a Community Correction Order at the time of such offending. That order had been made on 31 May 2021. Indeed, prior to this offending, you were aware that contravention proceedings in relation to that Order were to be taken. A Contravention Report dated 19 November 2021 is most uncomplimentary about the extent to which you were motivated to comply with the conditions of that order. It notes multiple failed appointments for supervision, as well for unpaid community work; a lack of action in relation to obtaining a mental health care plan; an indication that you did not like discussing your substance abuse problems and wanted to have your Community Correction Order moved to Queensland, together with an assertion that the order was not a priority for you and was a barrier to you moving to Queensland. The report authored by your Case Manager, Nishasiva Sivaji, and co-authored by Toni Kaden-Brunne, Court Assessment and Prosecutions Officer, recommended that the order be cancelled.[3]
[3] Exhibit “B”
19The plea hearing conducted on 13 July 2022 in the County Court at Geelong was frustrating on a number of bases. Mr Rolfe conceded that a report which he had tendered from Ms Gina Cidoni, dated 4 July 2022, detailing a psychological assessment of you[4] was seriously deficient in a number of respects. It diagnosed generalised anxiety disorder, Major Depressive Disorder and Post-traumatic Stress Disorder but had not addressed what symptoms were present, nor had it identified how the diagnostic criteria for each of those conditions were met. There was reliance based upon Ms Cidoni concluding that your cognitive function “appears to be borderline to low average” but it was plain that only two of the sub-set tests of the Wechsler Adult Intelligence Scale had been administrated by Ms Cidoni. She seemed to consider that you had an immaturity in respect of consequential thinking but the most crucial test which would have thrown some light on this, namely a perceptual reasoning scale or perhaps a processing speed scale test, had not been administered by Ms Cidoni. Ms Cidoni diagnosed you as having a substance abuse problem with a history that, at the time of offending, you had been taking each day 0.5mg of methylamphetamine, 20mg of GHB, five to six Valium pills and one to two Xanax tablets. She stated that this polysubstance abuse would disturb thinking and compromise both cognitive and emotional functioning and impair attention or control, response inhibition, decision making, self-awareness and emotional insight. However, she nevertheless determined that there was a significant causal link between your underlying mental illness and your offending. Curiously, that conclusion was reached by way of bare assertion even though Ms Cidoni stated, “It is difficult to separate individual factors or symptoms”.[5]
[4]Exhibit “D1-1”
[5]Op cit, page 6, paragraph [72]
20Although I accept that you appear to have suffered some form of general anxiety, for which you were medicated with a daily dose of 20mg of Escipane for the first time after being remanded in custody following your arrest on 30 December 2021, your counsel conceded that the evidence from Ms Cidoni was not sufficient to attract principles one to four of Verdins or to satisfy any of the exceptions to the term of imprisonment mandated for home invasion by s5(2H) of the Sentencing Act because of your self-induced intoxication.
21Mr Rolfe urged the Court to note that you had indicated your intention to plead guilty at a committal mention on 27 May 2022, which is conceded by the prosecution to be an early plea of guilty. Further, he asked the court to note that you were only 24 years of age at the time of offending and that your period spent on remand since 30 December 2021, is your first ever time in custody. He stated that you had used this time beneficially by becoming involved in horticulture at Dame Phyllis Frost Centre working Monday to Friday at this occupation as detailed in a prisoner education summary report dated 12 July 2022.[6] It became apparent that whilst in custody you had undertaken a number of. Mr Rolfe sought an adjournment in order to obtain further material relating such courses and to your mental health. It was considered desirable to adjourn the further hearing of your plea to 5 September 2022, to be heard at the same time as the plea on behalf of Mr Seccull.
[6] Exhibit “D1-2”
22At the adjourned plea hearing on 5 September 2022, Mr Rolfe relied upon the history detailed in his previous filed Amended Outline of Defence Submissions[7] and also in the report of Ms Gina Cidoni.[8] You were raised in Hervey Bay, Queensland, until your parents separated when you were aged 12 years, following which you moved to Victoria. Apparently your parents had an alcohol-abuse problem and, once in Victoria, you resided for much of the time at Lara with your maternal grandparents, with whom you had a good relationship.
[7]“MFI - D1”
[8]Exhibit D11
23Unhappily, you had begun using cannabis at age 15 and developed a habit of daily use until you were aged 17 years. Subsequently, you engaged in weekend use of cocaine and ecstasy and developed a regular methylamphetamine habit by 18 years of age. By then, you had left school (during Year 11 at Lara Secondary College), and also ceased living with your grandparents in order to reside with a young man by the name of Ashley Cocks. Your use of methylamphetamine and GHB, as well as the prescription drugs Valium and Xanax escalated whilst in that relationship. You were subjected to domestic violence by him. and Intervention Orders were taken out under the Family Violence Protection Act on 4 July 2017 for a period of 12 months, 25 January 2019, for a period of approximately six months and, again on 20 August 2019, for a period of two years.[9]
[9]Exhibit D1-7
24It would appear that you developed a significant problem with drug addiction and, at one point in November 2019, you underwent a seven-day detoxification, from which you were transferred directly to the Bendigo Bridge Program in order to undergo a residential alcohol and drug program, but you exited from it after a period of approximately five to six weeks.[10] You were still in a relationship with your drug-addicted, violent partner, which stretched out over a period of four years.
[10]Exhibit D1-6, letter from Bendigo Bridge Program, dated 5 September 2022.
25After the relationship with Ashley Cocks ultimately ceased, you met your co-accused, Mr Seccull, in 2021, when you were homeless, as your grandparents had refused to have you back living with them because of your drug use. The physical abuse from your former partner apparently resulted in you being diagnosed with depression and anxiety in about 2020, however treatment for these conditions was interrupted by your drug use. In the history to Ms Cidoni, you described self-harming behaviour and, later, suicidal ideation, which appears to predate your abusive domestic relationship, but the history is somewhat confused.
26Your criminal history, which relates primarily to driving, dishonesty and drug offences, appears to be inextricably entwined with your drug addiction. You had been placed on a Community Correction Order on 10 March 2020, but contravened it. Subsequently you were given a further Community Correction Order on 31 May 2021, which included assessment and treatment for drug and mental health problems but, as previously mentioned, the Contravention Report,[11] details a significant lack of engagement with the conditions of the Order which you were supposed to have been completing at the time you committed the offences for which I must sentence you.
[11]Exhibit B
27Ms Kruik, although the Contravention of Community Correction Order Report, dated 19 November 2021, shows that you were not motivated to do anything of substance to address either your mental health or drug-abuse problems, I accept that you were not functioning well at that time due to your escalating drug problem, unstable housing and underlying untreated anxiety and depression. You appear to have been in a drug affected state when you committed the offending for which I must sentence you, which is of a seriously antisocial, brazen nature.
28The seriousness with which Charge 1, home invasion, is regarded, is reflected in the maximum penalty of 25 years’ imprisonment, as well as the mandatory term of imprisonment which applies where, as is the case with you, an offender is unable to establish any of the exceptions set out in s5(2H) of the Sentencing Act 1991. Although there are no Victim Impact Statements in this case, the statement made by Mr Charles to police[12] leaves one in no doubt about how unnerving it must have been for him to come downstairs at his home at 4.30am, to discover lights on and items in disarray, showing that intruders had been present, and then discovering that his vehicle had been stolen. He describes his anxiety over criminals having been in his home and the thought that his partner or children may have come downstairs while you were present. He describes feeling upset in his own home and disgusted that the safety of his family was at risk, and the inconvenience occasioned by the theft of his vehicle which, although recovered on 4 January 2022, had had parts removed and other parts damaged, and he suffered further inconvenience by having to wait for its repair.
[12]Statement of James Charles dated 17 March 2022, Depositions at pages 22-23
29It is trite to say that a person’s home is a place where they should be entitled to feel safe. What you and Mr Seccull have done is to invade that sense of security. Having said that, I acknowledge there was nothing sophisticated or premeditated about this offending. Insofar as I have been able to glean, it was a fairly quick ransacking and going through of possessions in the kitchen, before stealing the vehicle and taking off with it. There is no suggestion that you confronted the occupants of the house or that you were armed with a weapon. Nevertheless, the Court must denounce your conduct and emphasise the principle of general deterrence, which means sending out a clear message to the community that such a serious violation of someone’s home, while they are present, asleep upstairs in the early hours of the morning, will not be tolerated and will be appropriately punished. Unhappily home invasion has become a prevalent offence. It is plain and, indeed, conceded by your counsel, and Mr Seccull’s counsel, that the only appropriate sentence is one of a head sentence and a non-parole period.
30I have already commented on the inconvenience occasioned by your theft of the vehicle. Obviously, a vehicle is a relied upon by its owner in everyday life, for all sorts of essential purposes. Cavalierly helping yourself to someone else’s vehicle must be denounced and punished, as must your trespass, and theft of items on Christmas Day at several different properties in Lara. The latter, again, was brazen conduct and must have made for an unsettling Christmas for the residents of those properties, even though the stolen property was later recovered. You committed these offences because you are a drug addict. That in itself, is not a mitigatory factor, particularly where you have been given opportunities by courts in the past to undertake drug rehabilitation. I do take into account that you have had some unhappy childhood experiences, as well as being subjected to domestic violence, but your drug addiction seems to have made you unable to address your psychological problems, or to accept the help which was sought to be given to you under the Community Correction Orders.
31It is to your credit that you have pleaded guilty to the offences. You indicated your intention to plead guilty at an early stage at a committal mention on 27 May 2022, within six months of your offending. Your plea has utilitarian value, in that it spares victims having to give evidence, and spares the State the cost of a trial. That value is enhanced, given the difficult times occasioned by the pandemic restrictions, which have made the running of trials in the State of Victoria a challenge.[13] I also take into account that, after you were remanded in custody on 13 December 2021, you would have been required to undergo 14 days of isolation which would have been confronting for someone like you who was in custody for the first time. In addition, there have been, at times, ongoing restrictions in the prison environment, which have made being in custody more onerous. This is particularly so given that you suffer from some mental health issues which have required you to be medicated while in custody and that, as previously mentioned, it was your first time in custody.
[13] [2021] VSCA 169
32It is also to your credit that you have apparently remained free of illicit drugs while in custody and taken some rehabilitative steps. These include referring yourself for counselling to the Western Region Centre Against Sexual Assault, based at Dame Phyllis Frost Centre. A report from West CASA, dated 18 February 2022[14], states that, at your intake appointment, you engaged extremely well in taking the brave first step to voluntarily commence addressing significant and multiple traumas that you have experienced in your life. It is unclear to what extent you have undergone any further counselling. However, you have used your time productively to undertake some short courses in April this year relating to “adapting”, “taking stock”, healthy living, relationships with family friends and community, and housing issues.[15] You have also undertaken some external study at a TAFE this year by way of a unit in hygienic food safety and another unit on providing cardiopulmonary resuscitation.[16] As already stated, you have also engaged in horticulture. You told the Court that, since shortly after going into custody, you had been involved in planting, watering and pruning work most days between 9.00am and 3.00pm from Monday and Friday, and have hopes of undertaking a Certificate II in Horticulture. You also told the Court that your time in custody had enabled you to learn ways to manage your emotions and to connect with family support, and, apparently, you now enjoy a better relationship with your mother and younger siblings, and have reconnected with your grandmother. You stated that you have telephone contact with them every few days.
[14] Exhibit “D1-5”
[15]Certificates comprising Exhibit “D1-3”
[16] Certificates comprising “Exhibit D1-4”
33I am mindful that you are still young, but I am also aware that your long-term addiction lies just below the surface and that your rehabilitative steps are very early ones, with your depression and anxiety and trauma symptoms also needing attention.[17] As recently as last year you were assessed by your community corrections case officer and her supervisor as “being at a high risk of re-offending with very high criminogenic needs”. It has effectively taken a period of enforced abstinence from illicit drugs in custody to get you to embark upon rehabilitation. You have a long way to go and I consider that you will need a great deal of supervision and support by the time you are eventually released into the community. Apparently your grandmother is prepared to have you live at her home again, provided you abstain from illicit drug use. At this stage, I regard your prospects of rehabilitation as still being somewhat guarded, but the rehabilitative steps you have made in custody, coupled with your youth, cause me to set a non-parole period which will allow for your release into the community with a relatively-long period of supervised parole to help you transition back into life outside of custody and build on the gains which you have made in custody.
[17] Exhibit B, p2
34On Charge 1, home invasion, you are convicted and sentenced to be imprisoned for a period of 3 years.
35On Charge 2, theft of a motor vehicle, you are convicted and sentenced to be imprisoned for a period of 12 months.
36On Charges 3, 4 and 5, all charges of theft, you are convicted and sentenced to an aggregate sentence of six months’ imprisonment.
37On Summary Charges 5, 8, 10 and 11, all charges of trespass, you are convicted and sentenced to an aggregate period of six months’ imprisonment.
38The base sentence is that of 3 years imposed on Charge 1 on the Indictment. I direct that three months of the sentence imposed on Charge 2 on the Indictment, two months of the aggregate sentence imposed on Charges 3, 4 and 5 on the Indictment, and one month of the aggregate sentence imposed on the Summary Charges 5, 8, 10 and 11, be served cumulatively upon the sentence imposed on Charge 1 and upon each other.
39The total effective sentence is 3 years and 6 months imprisonment.
40I direct that you serve a period of 21 months imprisonment before becoming eligible for parole.
41I declare a period of 253 days of pre-sentence detention to be reckoned as time already served under the sentences imposed this day.
42Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 5½ years’ imprisonment, with a non-parole period of three years.
43On Charge 2, theft of a motor vehicle, all licences to drive are cancelled and you are disqualified from obtaining a licence for a period of 12 months.
44On Charge 1, home invasion, I order, pursuant to s78(1) of the Confiscation Act 1987, that one white Apple iPhone, one black/yellow glove, one pair of brown/white Ugg boots and one black left-handed glove, be forfeited to the State, and I further direct that such property be placed in the custody of the Chief Commissioner of Police, and be held by him until 28 days from this date, or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
45I shall now deal with the plea made on your behalf, Mr Seccull.
46You were arrested on 5 January 2022 and remanded in custody. On 25 January 2022, the informant in these matters contacted your solicitor, who authorised for your matters to proceed without you being interviewed. At a committal mention on 9 June 2022, the matter resolved, with you indicating an intention to plead guilty to the matters upon which I must sentence you.
47You are presently aged 36 years, having been born in March 1986. You come before the Court with a criminal history dating back to 10 August 2004. From that date, up until 22 September 2021, you have been before the Court for a number of driving offences, including six charges of either driving whilst disqualified or driving whilst authorisation was suspended, careless driving, four charges of either exceeding the prescribed concentration of alcohol/drugs within three hours of driving a vehicle or failing an oral fluid test within three hours of driving, three charges of breaching an alcohol interlock condition, four charges of contravening a Community-Based Order or Community Correction Order, failing to answer bail, two unauthorised possession of firearm charges, three charges of contravening a fine default unpaid Community Work Order, two charges of assault, two charges of using an unregistered motor vehicle on a highway, criminal damage, one charge of dishonestly receiving stolen goods, one charge of fraudulently using a document, failing to answer bail and criminal damage. Over the years, you have been given a significant number of opportunities to undertake rehabilitation by way of community-based dispositions, all of which you have breached. In 2008 and, again, in 2009 you received sentences of 1 months imprisonment, and in 2018 you served a prison sentence of 120 days in combination with a Community Correction Order. You served a further 14 days’ imprisonment in 2020.
48In a plea on your behalf, Mr Karitzis told the Court that you were raised in the Ballarat area and that your father had been employed as a policeman and, subsequently, as a publican. You attended Ballarat High School, but left prior to commencing Year 10 and began, but did not complete, a couple of apprenticeships. Your work history has been a limited and intermittent one and the last position that you held was one installing blinds, which was some two years ago. You had a relatively-short relationship of some 12 months with a partner by whom you have one 13-year-old daughter, however you have no contact with her, as there are Family Violence Intervention Orders in place. Subsequently you had another relationship of some ten years’ duration, by which you have two children aged 12 and 10 years respectively. Approximately five years ago, this relationship ended when you arrived home to find that your partner and children had moved out. A report containing a psychological assessment of you by Ms Laura Fleming, dated 22 August 2022,[18] noted that you had been using methylamphetamine prior to your partner and children moving out, and that they had located interstate and you had only managed to speak with your children occasionally by telephone.
[18]Exhibit “D2-1”
49Mr Karitzis stated that you had a lengthy history of substance abuse. The history you gave to Ms Fleming was that you had begun drinking alcohol and using cannabis from age 12 or 13 years and, although you claimed that alcohol had not been problematic, you did have ongoing cannabis use, and later commenced taking amphetamine and then methylamphetamine at age 15, around the time you left the family home. You told Ms Fleming that you thought that using methylamphetamine assisted you to concentrate. Although you had had a substantial period of sobriety during the initial part of your relationship with your second partner, you relapsed and stated that, at the time of your arrest, you had a daily habit of 1 gram of methylamphetamine, as well as up to 20 milligrams of GHB and had had periods of “blowouts” relating to such use. You conceded that your limited work history was related to your substance abuse and associated homelessness. Sadly, your relationship with both parents, and your brother, has become fractured.
50Ms Fleming noted that you had reported suffering anxiety and depression some five years ago, after the breakdown of your relationship with your second partner and loss of contact with your children. You apparently engaged in some deliberate self-harm at some stage and spoke with your general practitioner, but it is unclear what treatment ensued and, over the years, you have obviously failed to comply with community-based dispositions with rehabilitative treatment conditions. At some stage in the past, you had been supported on a Court Integrated Services Program whilst bailed in the community, and attended a rehabilitation program at Windana for approximately four months, but became overwhelmed with symptoms of a possible panic attack, were taken to hospital, prescribed Valium, and discharged yourself from Windana.
51Ms Fleming considered that you presented with symptoms of anxiety and depression, which are attributable to an Adjustment Disorder with depressed mood, stemming from your relationship breakdown and the loss of contact with your children. Also, you have abused substances as a coping mechanism throughout your life and meet the criteria for multiple substance-use disorders.
52Ms Fleming’s report is of a general nature, relating to the contribution that any mood disturbance may have had to your offending.[19] I must say that I found Ms Fleming’s report somewhat confusing, in that she noted that, since you had been in custody, you had been prescribed antipsychotic medication (Olanzapine, 20 milligrams per day), but did not report any clear psychotic symptoms, yet you had reported symptoms of psychosis related to your drug use, which she said indicated that your brain has been significantly harmed by such use. She also recorded that, since being in custody, you have been prescribed the antidepressant, Escitalopram, 10 milligrams daily. Again, curiously, you had reported to her that you did not have any suicidal ideation or plan to harm yourself,[20] but went on to fill out a questionnaire relating to the assessment of depression, which gave a result that you were experiencing a severe level of depression, likely Major Depression, including thoughts of suicide in recent weeks. It is difficult to know what to make of your mental health history. Obviously, it is substantially based on your own self-report and, while it is clear that you have had a long-term disorder by way of abusing stimulants, cannabis and sedatives and other prescription medication, your counsel conceded that there was insufficient material to establish that any mental impairment at the time of offending was such as to attract the principle in Verdins’ case. He also conceded that your background was not of such disadvantage or dysfunction as to attract the mitigatory effect of the principles in Bugmy’s case.
[19](Ibid) at page 9, paragraph [90]
[20](Ibid) at page 6, paragraph [60]
53I do take into account in a general way that you have had a difficult background and suffer psychological problems. Also, at the time of this offending, you were apparently homeless and had, at various times, been living in a car. Your counsel stated that your motivation relating to the stolen car was to be able to use it to sleep in. The long and the short of it seems to be that you have been a non-functioning drug addict, who has led a feckless existence for quite some time, although I accept that you have suffered anxiety and depression, particularly after your relationship broke up five years ago and you have not had the ability to see your children. As I have said, I take these matters into account in a general way and accept that your psychological state in custody, which has required prescription medication, makes serving a term of imprisonment more burdensome for you. I also acknowledge that this has been the longest time that you have been in custody and that the conditions have been more onerous because of the COVID-19 pandemic, including an initial 14 days of isolation and then restricted out-of-cell time during lockdown, limitation of programs available to prisoners and a lack of contact visits until recently. I take these matters into account in mitigation of your sentence, along with the fact that your pleas of guilty have enhanced utilitarian value by virtue of having been entered whilst Victoria is still struggling to run criminal trials due to the ongoing impact of the pandemic.
54Mr Seccull, I accept your counsel’s submission that your prior criminal history does not contain offences akin to the sentence of home invasion and that this offending is an escalation in seriousness, in circumstances where you were homeless and depressed following the breakup of your long-term relationship and inability to see your children, albeit that I consider your substance abuse is the real reason behind your offending.
55In your case, there is some evidence that you had insight into how scared and upset the victim would have been in your history to Ms Fleming,[21] and also a reference from a person, Ms Seok-Nguyen, with whom you had a brief relationship for some six months at the beginning of 2021,[22] as well as your entering into plea negotiations within a relatively short time after being arrested on 5 January 2022 and bypassing a committal hearing. The prosecution have conceded that the resolution at a committal mention on 9 June 2022 is an early plea of guilty. I have already mentioned the added utilitarian benefit attached to such plea by reason of it having been entered at a time when pandemic restrictions are still causing difficulties with the running of trials in the State of Victoria.
[21]Exhibit D2-1, page 6, paragraph [56]
[22]Exhibit D2-2
56It would seem that your time on remand has caused you to reflect on your situation and you told the Court that you had been feeling fitter and healthier and have put on weight after being very thin as a drug addict. You have also utilised your time in custody to undertake the necessary course to obtain a white card, as you would like to work in the construction industry when you are released and, although there have been limited rehabilitative courses available in custody during the Pandemic, in March 2022, you undertook brief courses in “Taking Stock” and “Adapting”.[23] In addition, for the last three months, you have been working five days a week from 8.00am to 2.00pm in a prison job which involves you rolling up rubber hosing for gardening purposes. That supports your statement that you are now in a fitter and healthier state than at the time of offending, and that you are motivated to work.
[23]Certificates for these courses were tendered as Exhibit D2-3
57I have already commented on the sentencing considerations relating to the serious offence of home invasion in the context of dealing with Ms Kruik’s plea in mitigation, and the same considerations apply to you, Mr Seccull. It is a despicable offence, which involves invading the privacy of others in a space where they are entitled to feel safe, and it is an aggravating factor that you committed this offence while on two separate undertakings of bail. Your unlicensed driving of the stolen car represents a further disregard for others’ property, as well as for the law requiring a person to be licensed before they are entitled to drive. Your cavalier disregard for the law in relation to the obligation to hold a driving licence has been demonstrated on many occasions over the last 14 or 15 years.
58As is the case with Ms Kruik, I consider your prospects of rehabilitation to be guarded and it is plain that you will need a great deal of support once you are released into the community. You are thirty-six years old and the father of three children, with whom you have no contact. Thus far, you have wasted your life and been a menace to society and, unless you wake up to yourself and seriously determine that you will reform your ways, cease taking illicit drugs and have a good hard look at yourself, and what sort of treatment might be required for your psychological difficulties, you will go on being a menace to society and having a wasted life. You are twelve years older than Ms Kruik and not entitled to the same considerations in relation to youth and emphasis upon rehabilitation that apply to her and, given that your history of drug addiction and associated criminal offending has been entrenched for a longer period than Ms Kruik, I am more guarded about your prospects of rehabilitation than I am concerning hers.
59On Charge 1 on the Indictment, home invasion, you are convicted and sentenced to be imprisoned for a period of three years.
60On Summary Charge 2, committing a home invasion while on bail, you are convicted and sentenced to be imprisoned for a period of three months.
61On Summary Charge 4, unlicensed driving, you are convicted and sentenced to be imprisoned for a period of three months.
62The base sentence is three years in relation to Charge 1. I direct that each of the sentences imposed on Summary Charge 2 and Charge 4 be served cumulatively upon the base sentence and upon each other.
63The total effective sentence is thus 3½ years.
64I direct that you serve a period of two years and four months before becoming eligible for parole.
65I declare a period of 247 days pre-sentence detention to be time reckoned as already served under the sentence imposed on this day.
66Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 5½ years, with a non-parole period of three years.
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