Director of Public Prosecutions v Sebbens

[2023] VCC 1226

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-01846

DIRECTOR OF PUBLIC PROSECUTIONS

v

MITCHELL SEBBENS

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2023 and 18 July 2023
DATE OF SENTENCE:	18 July 2023
CASE MAY BE CITED AS:	DPP v Sebbens
MEDIUM NEUTRAL CITATION:	[2023] VCC 1226

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Charge of causing serious injury recklessly and summary offence of committing an indictable offence on bail – victim assaulted in home with wine bottle – relevant criminal history – Aboriginal – plea of guilty – reasonable prospects of rehabilitation

Legislation Cited:     Sentencing Act 1991

Sentence:Total effective sentence of 42 months’ imprisonment with non-parole period of 30 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Ms S. Gillahan	Farrelly Legal

HIS HONOUR:

Introduction

1On 16 June 2023, I gave a sentence indication, which was accepted later. You then pleaded guilty to a charge of causing serious injury recklessly and the summary offence of committing an indictable offence on bail. My indication was given in the absence of a victim impact statement. One has now been produced.  

Circumstances

2The victim is Travis Knight. You know him, having lived together at an address in Hamilton.

3On 31 August 2021, Mr Knight woke as someone was throwing water on him. He could not identify the person. He noticed his wooden walking stick was broken and tree branches were left in his room. As his bed was wet, he went to a couch in the living room to sleep. He ensured the doors to the house were locked and then fell asleep. He then woke to hear you calling out that all the doors were locked. He went to the door to let you in, but you had left the property. He went back to sleep.

Charge 1 – Causing Serious Injury Recklessly

4You returned to the property at lunchtime and entered through the back door. Mr Knight was on the couch. You repeatedly struck him to the head with a McWilliams port bottle. He tried to protect his head from your blows and you continued to strike him about his head and forearms. You accused him of being in a relationship with your girlfriend.

5Mr Knight escaped into the hallway and held the door closed. You punched the door. When he reached the front door, you struck him with a tennis racquet. You followed him outside to the front lawn, continually striking him with the tennis racquet as you were standing over him. While he was on the ground, you threw water on him, kicked him in the head and punched him.

6Neighbours witnessed you attacking Mr Knight on the front lawn and intervened so you would stop. Police members attended a short time later and arrested you. You were interviewed by police and told them you had a dispute with Mr Knight as he would not move out of your house and had threatened you with a knife.

7Your phone was seized by police and analysed. On your phone are photos and video recordings of you berating Mr Knight. You also emailed a graph of him to an associate, showing him lying on the couch, severely injured.  

8At the time of this offending, you were intoxicated and on bail. 

9Mr Knight was taken to the hospital. He had suffered bruising to his eyes, bleeding and a vitreous haemorrhage to the left eyeball, lacerations to his face, broken teeth, bruising to his arms, fracture to his nasal bone and left maxillary sinus and bilateral zygomatic arch fractures. As a result of the injuries to his eyes, he had severely decreased vision. He did not require surgery for his facial fractures were treated conservatively and, by February 2023, his vision has returned to normal.

Victim impact statement

10On 10 July 2023, Mr Knight made an impact statement, consisting of a series of short sentences. In the context of sentencing, he makes three points. He has been withdrawn since the offending, practically  housebound as he does not wish to see anyone. The right side of his face has paralysis. He suffers ongoing head pain.   

Criminal history

11Between 15 July 1998 and 15 January 2020, you have appeared in a criminal court on 23 occasions and have been convicted or found guilty of 105 charges. On 17 occasions, you have been sentenced to a term of imprisonment, whether immediate or suspended. 

12You have a conviction for recklessly causing serious injury, five convictions for recklessly causing injury, two convictions for unlawful assault and 14 prior convictions for offences against the Bail Act 1977. You have contravened community-based orders and suspended sentences.

13In June 2012, you received your longest sentence of 23 months’ imprisonment with a non-parole period of 9 months’ imprisonment for recklessly causing serious injury and other charges.

14Plainly, you are a violent person. To the psychologist, Ms Bovenkerk, you attributed much of your criminal history to drug addiction and associating with an anti-social peer group. Nevertheless, she assessed you as a high risk of violent re-offending. The sentencing purposes of specific deterrence and protecting the community from you are important. 

Personal

15You are 42. You were born and raised in Hamilton of indigenous parents. You are the younger of two children. Your father died when you were 12. His death affected you severely. You began drinking alcohol and using drugs.

16Your secondary education ended when you were 16. It was marked by bullying and your behaviour. You were suspended several times. You then worked in a bakery. For 18 months you lived with an aunt after your mother asked you to leave as you were “a bit of a menace”.

17You went to live in NSW and did fencing work. However, you have had long periods of unemployment due, in your mind, to your drug addiction and criminal record.

18You drank alcohol from 13 or 14, using cannabis from 14 or 15, heroin at 17 and since about 30, methylamphetamine. You use drugs, including prescribed medicines, to avoid feelings of depression and boredom. Valium has been a constant medicine for many years. It has been prescribed.    

19In prison, you work as a peer educator. You are undertaking a cleaning operations course. You paint and your works have been exhibited. You are on a methadone maintenance programme. You have undertaken intensive drug treatment programmes and some drug and alcohol counselling. You are on a waitlist for group-based drug and alcohol programmes.

20Your first significant relationship was an “on and off” arrangement, lasting 10 years. The relationship produced a son, who is now 20. You have had some contact with your son, who has his own mental health issues. At one stage, he lived with you.

21Despite being in prison, you are in a relationship with Lauren and have been for 2 or 3 years. You contact each other through phone calls and letters. You hoped to continue the relationship when released. 

Psychologist

Bovenkerk

22Marlese Bovenkerk is a forensic psychologist. At the request of your solicitors, she interviewed you on 13 and 21 February 2023[1].

[1] Report dated 6 March 2023.

23Based on her interviews with you and the results of tests she administered, Ms Bovenkerk diagnosed you as suffering from recurrent episodes of a Major Depressive Disorder, which was in remission, a cannabis and a stimulant disorder, both in remission because you are in prison. She did not diagnose a personality disorder and noted the possibility of an acquired brain injury.

24Using a standardised test, she assessed your risk of physical violence as high where the categories are low, moderate and high. The “high” category means you are a greater risk than the average violent offender.

25Among her recommendations was neuropsychological testing regarding a possible acquired brain injury. She also recommended, principally, offence-specific treatment and drug and alcohol counselling.      

Sinclair

26Kelly Sinclair is a clinical neuropsychologist. She assessed you on 31 May 2023 at the request of your solicitors[2]. Mainly, she explored whether you have an acquired brain injury. 

[2] Report dated 13 June 2023.

27Dr Sinclair did not diagnose you as suffering from the effects of an acquired brain injury. Your cognitive abilities were largely intact. Although you experienced weaknesses in visual intellectual skills and aspects of executive functions, she thought the possibility of an acquired brain injury causing them was low.

Discussion

28Each of the sentencing purposes is relevant to you. My sentences should represent just punishment after considering the other purposes of general and specific deterrence, denunciation of your offending and protecting the community from you.

29S 5(2) of the Sentencing Act 1991 list matters which I must consider if they are relevant to your case.

30The maximum penalties for causing serious injury recklessly is 15 years’ imprisonment and committing an indictable offence while on bail, a fine of 30 penalty units or 3 months’ imprisonment.

Nature and gravity of the offending

31Your attack upon Mr Knight was frenzied and short-lived. It was inspired by your belief about his behaviour with your partner. Your version of Mr Knight threatening you with a knife after you asked him to leave is inconsistent with your acceptance of the contents of the prosecution’s opening and I reject it.

32There are two aspects of Mr Knight’s injuries revealed in his impact statement. When he refers to “paralysis”, I assume he means numbness. I am uncertain by what he means by “head pain” unless it includes headache. That it is nearly two years after the infliction of the injuries would imply those condition will continue into the foreseeable future.

33The symptoms of your Major Depressive Disorder has no direct effect on your offending. The disorder may adversely affect your ability to make proper decisions. But this possibility is insufficient to reduce your culpability for the offending from high.   

Guilty pleas

34In terms of timing, your guilty pleas have come in the second half of the process starting with the laying of the charges and ending with the verdict of a jury. 

35By pleading guilty you have taken responsibility for your offending. Your guilty pleas have the practical effect of assisting the criminal justice system by creating space for those proceedings which genuinely require a trial. This avoided the need for witnesses to give evidence in this Court, including the victim. Even though the problems caused by the virus to the criminal justice system have waned, they have not disappeared. Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times.

Rehabilitation

36Your relationship with Lauren has continued despite being in prison. You hoped to continue the relationship after your release.  

37In prison, you work as a peer educator. You are trusted to help newer prisoners. You are undertaking a cleaning operations course. You are on a methadone maintenance programme. You have undertaken intensive drug treatment programmes and some drug and alcohol counselling. You are on a waitlist for group-based drug and alcohol programmes.

38You paint and your works have been exhibited. I was shown seven of your works. To my untutored eye, they are fine works. Some have sold for significant amounts. Where you used drugs because of boredom, painting seems a productive way of spending your time.

39Even though the psychologist considered your risk of violent re-offending as high, your artistic activities show a different side of you. You are now 42, an area of engagement is now available to you. It gives more meaning to your life. I consider your prospects of rehabilitation as reasonable. 

Sentence

40On charge 1, a charge of causing serious injury recklessly, I sentence you to 41 months’ imprisonment.

41On the summary charge of committing an indictable offence while on bail, I sentence you to one months’ imprisonment. 

42The sentence on the summary charge will be served cumulatively upon the sentence on charge 1. The total effective sentence is 42 months’ imprisonment. I will set a non-parole period of 30 months’ imprisonment.

43I declare the 696 days of your pre-sentence detention as time served under my sentences. That period excludes today.   

S 6AAA

44If you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to a maximum effective sentence of 60 months’ imprisonment.  

Disposal order 

45I will make the disposal order in the terms sought.

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