Director of Public Prosecutions v Seccull

[2024] VCC 263

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01785

DIRECTOR OF PUBLIC PROSECUTIONS

v

JON SECCULL

JUDGE:	JUDGE DAWES
WHERE HELD:	Ballarat
DATE OF HEARING:	Trial: 18 October 2023 – 2 November 2023 Plea: 22 February 2024
DATE OF SENTENCE:	13 March 2024
CASE MAY BE CITED AS:	DPP v Seccull
MEDIUM NEUTRAL CITATION:	[2024] VCC 263

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:  Rape; make threat to inflict serious injury

Legislation Cited:  Sex Offenders Registration Act 2004 (Vic)

Cases Cited:Chia v R [2023] NSWCCA63; Astbury v R (No 2) [2020] VSCA 158; R v Verdins [2007] VSCA 62; Sayer v R [2018] VSCA 17

Sentence:  9 years 9 months’ imprisonment

NPP 6 years 10 months

Sex Offenders Register for life

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Brown (plea) Mr J. Coulter (sentence)	Office of Public Prosecutions
For the Accused	Mr J. Gullaci SC (plea) Ms S. Locke (sentence)	Emma Turnbull Lawyers

HER HONOUR:

1Jon Seccull, on 2 November 2023, you were found guilty by jury verdict of four offences that were committed between February 2014 and September 2015, namely:

Charges	Offence	Maximum penalty
6, 7 and 8	Rape	25 years’ imprisonment.
9	Threat to inflict serious injury	5 years’ imprisonment.

2The 12 charges on Indictment H12898686.2 related to four alleged incidents of offending.  You were acquitted of all charges from the first incident that was said to have occurred on 23 April 2011, being three charges of rape (Charges 2, 4 and 5) and two charges of common assault (Charges 1 and 3). You were also acquitted of three charges of rape from the fourth incident, alleged to have been committed on 13 September 2015 (Charges 10, 11 and 12).

3I will summarise the facts of this case in accordance with the trial evidence and the jury verdict.

4You met the victim, Michelle Skewes, in 2000.  You married in 2003, and had four children together, one of whom died in an accident in 2011. Your relationship with Ms Skewes ended when you separated in 2016. You were divorced in 2019.

5In the course of your relationship, you encouraged your wife to engage in a lifestyle that involved sexual activity with other men. While she initially rejected your suggestion, she changed her mind in 2008. She agreed to participate in sexual conduct with others and as you described it, your open relationship commenced in 2011.  Ms Skewes' evidence was that sometimes you organised for her to engage with other men, and other times she arranged it herself.  As long as she was happy with the selection, Ms Skewes was prepared to sexually engage with others and livestream the activity to you, for your own sexual gratification. 

The second incident

6Ms Skewes gave evidence that she had been encouraged by you to find someone with whom to have sexual activity.  She started to communicate with a man called Sam[1] on the 'Wobbly Legs' Facebook page.  They engaged in sexual discussion and you were privy to their communication.  Sam resided in Queensland, and after a while he paid her airfare, so that Ms Skewes would travel to see him. They had agreed to be sexually active together and send videos back to you. You were initially happy with the arrangement, but your attitude changed as it got closer to the time. You called Ms Skewes a whore, as she had been paid to have sex with someone.

[1]        A pseudonym.

7Ms Skewes travelled to Queensland on Friday, 14 February 2014.  Her sexual activity with Sam was sent to you, via livestreaming on webcam and video.  In her evidence she said that you sent her messages throughout the time she was there, calling her names and saying that she would not be supported by you anymore as 'it was over'. She was quite concerned about coming home.

8When she arrived on Sunday, she said that you were not happy and gave her the 'cold shoulder'.  Later that evening, she went to bed.  You told her that she had to make up for what had happened, and that she was a 'stinking little whore' and a 'fucking slut'.  You grabbed her head and shoved your penis into her mouth.  You continued to penetrate her mouth and she thought that she was going to choke, as she could not breathe.  You made her perform oral sex to the point of vomiting and told her that she would be punished (Charge 6).  You then held her ponytail, turned her around, and placed your penis inside her anus until you ejaculated (Charge 7).  You then told her to 'Clean yourself up, clean this up', and walked off to the bathroom.  Ms Skewes stripped the bed, as there was vomit in it. She remade the bed and then had a shower in the bathroom before she sat on the floor in there and cried.

9Ms Skewes said that before she left Queensland, she had told Sam that she was scared about going home. The following day she had contact with him and told him what happened when she returned.  She communicated with him on a different Facebook account that she had made up under a false name, so that you would not have access to the messages.  She also had contact with him on the phone.  In her evidence, she said that she told Sam that you made her vomit, that you had arse fucked her and that she was punished.

10Sam gave evidence in the trial that he spoke to Ms Skewes after she returned to Victoria. She told him that you had raped her and made her perform oral sex to the point of vomiting.

Third incident

11On 30 April 2015, you were at home drinking beer with Ms Skewes. She said that you drank a lot; she had four beers that night, which was more than she would normally drink. She received a phone call from a friend whose car had broken down nearby, who asked if Ms Skewes could come to pick her up.  Ms Skewes was unable to do so, as she would have been over .05. She felt awful for not being able to help her friend.  You ended up having an argument, as your relationship was volatile at the time. You were really angry that she did not want to drink with you, which you said was ridiculous and that she was fucked up for not wanting to. Ms Skewes soon left to go to the bedroom and told you that your chance of getting anything tonight was zero, making a circle with her finger and thumb.

12After Ms Skewes went into the bedroom, you soon came in, taking a video of her on your phone.  You were standing in the doorway, speaking calmly. When she realised that you were filming her, she became really angry. She lashed out and threw a metal jewellery box at you. You told her that you were glad that you were recording, that she was a fucking little psycho and a fucking little cunt. You then walked away, after the door was slammed shut. Ms Skewes went to bed, wearing her underpants.

13Later, as you returned to the bedroom, you talked to yourself, saying what a horrible person she was and that you had to put up with so much. Ms Skewes pretended to be asleep as you climbed onto the bed.  You pushed her into the middle of the bed, pulled her underpants off, pushed her legs apart, and climbed on top of her. You placed your penis inside her, until you ejaculated (Charge 8). You ranted at her throughout this event, saying that she was a horrible, vindictive person and that she would go to the police and say that you hit her and raped her. You then rolled over and went to sleep.  Throughout this time, Ms Skewes did not try to push you off, as she pretended to be asleep and did not want to deal with you. After the offence occurred, Ms Skewes rolled over and cried herself to sleep.

14Ms Skewes did not specifically say that you penetrated her vagina with your penis in her evidence. The prosecution relied on her account that you penetrated her and the evidence of complaint to a good friend of Ms Skewes, who was told on a later date that you penetrated her vaginally. 

15On 2 May 2015, Ms Skewes sent a Facebook message to a man called Bill,[2] with whom she was having a relationship and who resided in Sydney.  She complained about the alleged conduct, providing a full description of everything that happened that was both favourable and unfavourable to her.  In that message she said:

“I pretended to be passed out and as he fucked me, I listened to a tirade of how I’m a nasty vindictive violent person and he knows I’m going to tell people he hit me, and I’ll likely go to the cops and tell them he raped me and he has sure fallen for that trap.  I shouldn’t have hit him.  I shouldn’t have got drunk.”[3]

[2]        A pseudonym.

[3]        Exhibit C.

The fourth incident

16Later that year, on 13 September 2015, Ms Skewes returned from an arranged 'craft beer' function in Sydney. You did not want her to go and said that the only reason she went was to fuck Bill. While she was away, you messaged each other. You were angry when she unexpectedly booked a hotel room and you messaged her, asking 'how many blow jobs are in $175?'. When she arrived home, she joined you at the Western Hotel. You drank between 8-9 pints while she was there. She did not drink any alcohol that night. You gave her 'silent treatment' at the hotel and she left and returned home. She was concerned for her safety that night. When you arrived home, your volatile relationship was evident. You stroked her hair and described her as useless and a selfish cunt. You continued to touch her and an argument commenced. Ms Skewes ran out to the caravan parked outside your home and locked the door. You ended up pushing in the bottom panel, so that you could unlock the door and go in. You continued to yell at her. She soon left the caravan and drove away before she later returned home. She went into the house and you were drinking in the kitchen. She walked straight past you, put her headphones on and went to bed.

17In her evidence she said that you were ranting to yourself outside before you came into the bedroom holding a firearm.  You chambered a bullet, before ejecting it and threw it at her on the bed.  You said, 'I hope you’re happy holding the last thing that’s going to go through my head'.  You did not point the rifle at her at any time.  You then stepped towards Ms Skewes and said that you were going to smash her fucking head in and put her in the ICU (Charge 9).  You said that you would shoot yourself in the driveway, so that the kids could find you and she would have to explain that it was her fault. Ms Skewes said that she was absolutely petrified when you said you would smash her head in.  You then left the bedroom.

18Ms Skewes’ good friend gave evidence that on 6 November 2015, Ms Skewes told her that you threatened to bash her and put her in the ICU.

19Your offences were committed in the context of an enduring atmosphere of hostility and tension towards your wife, which must have made each incident terrifying.  Your degrading and volatile conduct resulted in a significant and fundamental breach of trust. Your offending occurred on three separate occasions over a period of 19 months. You had time to reflect on your conduct yet chose to persist with it.  I consider that your moral culpability for all the offending is high.

20Sexual offences are crimes of violence that cause harm to victims. Any sexual activity that takes place without consent is wrong and must be denounced.  The seriousness of your offending has been conceded.  You accept that your misconduct warrants the imposition of a substantial term of imprisonment on each charge of rape.

21It is conceded by your counsel that the second incident is the most serious of the offences for which you were found guilty. It was a crime of violence that degraded the victim, for your own gratification.  I consider that it was dreadful and abhorrent offending, although I note that the offences were committed as part of a single incident. The prosecution submits that you knew that Ms Skewes was opposed to anal sex and this aggravates the serious of the offence of anal rape. The defence referred to Exhibit 1, to support your position that Ms Skewes had allowed you to have anal sex with her during the marriage.[4] In all the circumstances, I am not satisfied that an aggravating feature is made out. Notwithstanding that, the offences of Charges 6 and 7 are violent and offensive.

[4]         Exhibit 1 includes JS: “I thought it was just for me”. MS: “It doesn’t turn me on. I don’t enjoy it… I’m happy to leave it just for you.”

22The third incident is also conceded to be a serious offence, given the gravity of the underlying breach of trust in your marital relationship.

23The final offence of threat to inflict serious injury occurred in circumstances where you acted aggressively towards Ms Skewes and she was absolutely petrified. I note that no subsequent offending is a relevant consideration here.

24Ms Skewes initially contacted police on 27 May 2016 and applied for an intervention order.  She was in contact with them on three separate occasions until her first statement was made on 7 September 2016.  After a further discussion with police, a second statement was made on 3 February 2017.  A third statement was then made on 17 April 2017.

25On 2 March 2017, you were arrested and interviewed by police in relation to the third and fourth incidents.  You denied threatening Ms Skewes on 13 September 2015.  You stated that you have never had sex with Ms Skewes when she has been asleep.  You could not recall the third incident occurring.

26

You were released pending further investigation and charged on 16 October 2017.  Your case proceeded as a contested committal in the Ballarat Magistrates' Court on 25 October 2018.  A number of witnesses, including Ms Skewes, were

cross-examined at the hearing.  You were committed to stand trial and entered a plea of not guilty to the charges. Ms Skewes provided a further statement on the same day.

27Your trial was initially listed in September 2019.  At that time, Ms Skewes made a further extensive statement where the first and second alleged incidents were described.  In those circumstances, the trial date was vacated and adjourned to a subsequent hearing.

28Your first trial eventually proceeded in 2021.  You were found guilty of 12 offences on a 15 count indictment, being nine counts of rape, two counts of assault and one count of threat to inflict serious injury.  On 18 October 2021, you received a total effective sentence of 15 years' imprisonment with a non-parole period of 10 years and six months. I have been provided with and read the sentencing remarks of Judge Gucciardo.

29

A conviction appeal proceeded and a retrial was granted on 30 September 2022. You were released from custody on bail. The second trial commenced on

18 October 2023. You remained on bail until the jury verdict on 2 November 2023.

30Your defence in the current trial was that you never engaged in sexual penetration with your wife that was not consensual.  You denied that you had ever had sex with her when she was asleep or supposedly asleep.  You denied threatening or assaulting her at any time.  The jury by their verdict rejected your defence in relation to four charges, and you were found guilty of them. As I said earlier, you were also acquitted of eight charges on that day.

31You have denied your offending since the matters were first raised and continue to do so.  You have run a trial and are not to be penalised for that.  In those circumstances, however, there is no acceptance of responsibility for your misconduct, and I am unable to conclude that you have shown any remorse whatsoever. 

32Ms Skewes produced an updated Victim Impact Statement which she read out to the court. She referred to the saying that no one truly knows what goes on behind closed doors.  She said she has fought to avoid being 'systematically destroyed' by your consistent denial of wrongdoing. She describes the quandary she faced in outlining the long-lasting, substantial yet inexplicable effect your offending has had on her.  The abuse she suffered has been difficult for her to manage as she believed that she deserved to be treated in the way you chose. She said she has been exhausted by the ongoing battle to overcome abuse from the man she loved. She 'was left a shell' of who she previously was and still questions her worth, every day.  Reliving the atrocities perpetrated against her has been extremely difficult, especially as she was required to recount the events multiple times, as you have not accepted responsibility or shown any remorse for what you have done.

33She also said that hearing the word guilty uttered by a second jury has given her hope. You have been held to account for the damage that you have inflicted. I consider that your conduct has had a profound effect on Ms Skewes as she struggles to rebuild her life. I hope that she will achieve a positive future for herself and her family. I take the relevant parts of the Victim Impact Statement into account.

34You have previously been imprisoned for the four offences that remain before the court. On 18 October 2021, you were sentenced to eight years on each charge of rape and to 12 months on the charge of make a threat to inflict serious injury. The base sentence was eight years' imprisonment. You were ordered to serve nine months for the further offences of rape, and six months for the offence of threat to inflict serious injury cumulatively upon the base sentence and upon each other.

35There is no dispute that as a general rule, when an offender runs a successful conviction appeal, the sentence imposed after the retrial should ordinarily be no longer than the sentences imposed following the first trial. That is, the 'ceiling principle' applies and you should not be worse off after running a successful appeal.[5] If the same sentences with the same level of cumulation were imposed in this case, the total effective sentence here would be 10 years' imprisonment.

[5]        Chia v R [2023] NSWCCA63.

36

It is submitted on your behalf that when resentencing, this court should not exceed the individual sentences imposed or the orders for accumulation set by

Judge Gucciardo.  The prosecution position is that the appropriate degree of cumulation in the current case is different from the task that Judge Gucciardo faced, as he was required to impose a total effective sentence that was proportionate to 12 offences. You are to be sentenced for four offences here.

37I accept that totality is an important consideration in the resentencing exercise. While it can compress the sentence, the sentence that I will impose needs to be commensurate with the overall offending before this court, taking all the relevant circumstances into account.

38There is no dispute between the parties that the delay in this case has been extraordinary and is a significant mitigating factor. You first spoke to police in March 2017 and were charged seven months later.  It is accepted that the delay in disclosure by Ms Skewes was lengthy and caused the first listing of the trial to be vacated.  Issues related to the COVID‑19 pandemic also resulted in an interruption to court proceedings and your first trial did not commence until May 2021.  After the trial, your conviction was overturned, and the retrial commenced in October 2023. The delay of approximately six and a half years between the first time you became aware of your situation and the finalisation of this case is not solely due to the fact that you elected to contest the charges.  I accept that the lengthy delay has been a source of anxiety for you, notwithstanding your pleas of not guilty. You have had the prospect of imprisonment hanging over your head throughout a significant period and have not re-offended while on bail.  I take the delay into account and accept that it requires a level of mitigation. I note that it was taken into account by Judge Gucciardo, although delay has been further extended by more than two years.

39Your personal circumstances have been outlined in two psychological assessments that were conducted by Ms Laura Fleming, at the request of your solicitor.

40You were born on 9 January 1978 and are now 46 years of age.  Your offending conduct was committed between February 2014 and September 2015, when you were aged between 36 and 37 years.  You do not have a criminal history, nor have you committed any subsequent offences.

41You were raised by your parents in a supportive and positive environment.  You are the eldest in a sibship of three.  Your mother and father were present during your trial and plea.  You continue to remain in contact with your parents and expect to have contact with your sister now you are back in custody. Your family continues to support you. You are most fortunate in that regard.   

42Your childhood was not disadvantaged or dysfunctional.  You had friends in primary school and were involved in playing cricket and football when you were young.  Your attended secondary school in Ballarat and completed Year 12.  You had no issues academically, and again, maintained a close circle of friends.

43After completing school, you worked in numerous forms of employment as a labourer, in hospitality and performed some security work. At the age of 21, you obtained employment with Corrections. Your role was terminated upon the jury verdict in the first trial, when you were remanded into custody. The loss of your chosen career is accepted to be a mitigating factor. You have not been employed since your release in 2022 and have been in receipt of unemployment benefits.

44You met Ms Skewes and married in 2003 and had four children together, one of whom tragically died when he was three years of age. You stated that between you and Ms Skewes, you mutually decided to have an open relationship from 2011 as your own relationship was 'stale'.  You denied that any sexual violence occurred between you and that it was a surprise to you when your relationship ended. You were officially divorced in 2019.  You have not engaged in any further romantic or intimate relationships since that time. 

45You were diagnosed with post-traumatic stress disorder after the death of your son and engaged in psychological therapeutic intervention for around 12 months.  You continue to experience grief, loss and traumatic symptoms following his tragic accident. I am told that you still experience chronic poor sleep and nightmares related to this incident.

46When your son died, you and your wife decided to donate his organs.  You then became a representative on a Federal Government board for paediatric tissue donation over a period of five years, based on your own experience.

47Following your separation, your relationship was initially amicable with shared care of the three children, although the contact you soon had became limited. You have had no contact with your children since you were first remanded into custody.  Shortly after you were released on the last occasion, you learnt that your other son experienced a medical episode, which caused you extreme fear and concern.  As you have not resumed contact with them, you are unaware of any details that he currently faces. The lack of relationship adds to your ongoing sadness and grief.

48You deny any history of illicit substance abuse and state that you socially consume alcohol.

49I have received the psychological assessments conducted by Ms Fleming, the first dated 21 July 2021 and the second dated 18 December 2023. In her updated assessment, Ms Fleming writes that you presented as low in mood and unhappy in your current circumstances. She has made the following observations and findings:

·        You continue to experience poor mental health, which has deteriorated since the previous assessment in 2021.  You require treatment and support.

·        You continue to present with post-traumatic stress disorder symptoms following the death of your son and have ongoing grief and anger. These symptoms have been exacerbated by the health issue experienced by your other son when you were previously in custody.

·        When released on bail between your first and second trial, you have used excessive amounts of alcohol as self-medication to deal with your circumstances.  You now meet the criteria for an alcohol use disorder.

·        Your mental health has been affected by your recent experience of the court process.  This has resulted in the development of a major depressive disorder, with poor coping. You have not engaged in any treatment for this issue.

·        You continue to be at a low risk of general recidivism.

·        An offence specific risk assessment was not requested, as you continue to deny your offending. You did not pursue any treatment for sexual recidivism upon your last release from custody. I note that your convictions had been overturned at that time.

·        While you may be able to access treatment for the major depressive disorder in custody, you may struggle due to fears of confidentiality.  Your mental health will continue to deteriorate in custody without treatment or support.

·        Your time in custody will be more onerous given your former position of employment and the limitations of placements that this results in, while you are incarcerated.

50You served approximately 16 months in custody after your previous sentence was imposed.  You describe this period as extremely difficult.  Given your history of work within the prison system, you spent a lot of time in isolation. You were in lockdown for 23 hours per day for nearly 10 weeks, while awaiting further placement at the Melbourne Assessment Prison. Measures taken by Corrections to deal with the COVID‑19 pandemic were also in place. You were then moved to the McKenzie Unit at Hopkins Correctional Centre, being a separated unit for individuals who are unable to mix with the general population.  Again, there were lengthy lockdowns due to the pandemic restrictions.

51I take into account that measures taken by Corrections to deal with the pandemic added to your hardship as a prisoner at this time, particularly as this was your first time in custody. The Court of Appeal acknowledged that these hardships justify a sentencing benefit.[6]

[6]        Astbury v R (No 2) [2020] VSCA 158 [33].

52It is submitted by your counsel that the entirety of any prison sentence imposed will be more onerous for you, in light of your previous career.  An affidavit was prepared by Ms Jennifer Hosking from Corrections Victoria, dated 17 September 2021. When you were incarcerated for the first time, you were identified as being in need of protection due to your sexual offending together with your previous occupation.  She confirmed that you were initially held in isolation due to the COVID-19 pandemic and then transferred into a protection unit at the Melbourne Assessment Prison.  You were then moved to a restrictive unit within the Hopkins Correctional Centre.  In that unit you spent 10 hours outside your cell each day and had access to educational and vocational programs and services. I am told that an updated report was not sought, as you have returned to the same unit. 

53There is no dispute that the conditions of your imprisonment have been and will continue to be more onerous given your former employment and that some level of moderation of the prison term imposed should be allowed. You remain fearful and distressed that your previous occupation could result in being targeted while you are a prisoner, and you will need to be careful throughout your sentence.  You have returned to the unit where you were placed previously. It is conceded, however, that the conditions in the restrictive unit are not dissimilar to other prisoners at Hopkins, so the moderation of sentence in this regard need not be significant.

54You have spent a significant portion of your time in protective custody and this is expected to continue.  It is submitted on your behalf that the fifth limb of Verdins[7]  is applicable as you will find your time in custody to be more onerous, given your anxiety about your former employment and your diagnosis of a major depressive disorder. The prosecution does not take issue with the submission that imprisonment will weigh more heavily on you. I am satisfied that it is applicable.

[7]        R v Verdins [2007] VSCA 62.

55Your case previously attracted substantial media interest, as a direct result of the first jury verdict and the subsequent sentence imposed. I am told that the extent of the media reporting in the past has caused you great concern and affected your mental health. This is particularly relevant now, as you have been acquitted of egregious offending in the current trial. In light of these consequences, it is submitted that the substantial media interest is a mitigating factor.

56The risk that any offender confronts is of publicity being part of the criminal process.  Your offending has generated adverse media publicity which has continued after the current trial. This is not a surprising consequence given the gravity of your offending.  I accept that being the subject of public interest has added to the stress associated with these proceedings and to the criminal process overall.  I accept that the media coverage is a mitigating factor, particularly as it has previously related not only to the offences where you have again been convicted, but also to numerous appalling offences of which you have now been acquitted. The prosecution accepts that the media coverage amounts to extra curial punishment.

57The seriousness of your offending has been conceded by your counsel. In light of the gravity of your conduct and your lack of remorse, a lengthy term of imprisonment is the only appropriate disposition. You are to be sentenced on Charge 8 as a serious sexual offender.  While the principle of community protection is a relevant consideration for all charges, it becomes the principal purpose for the sentence imposed on this charge. However, the prosecution has not sought a disproportionate sentence be imposed in your case.

58Your counsel submits that in combination, your age, the fact that you have no criminal history and have not committed any subsequent offences, maintain family support, a strong work history and the fact that you will serve a significant term of imprisonment, ought persuade the court that your prospects of rehabilitation are good.

59Conversely, the prosecution submits that in all the circumstances, given your offending conduct and your lack of remorse, your prospects ought to be assessed as guarded, as they were assessed by Judge Gucciardo.

60When considering this issue, I take into account all of the factors raised. You are entitled to call upon your good character in this case. In your earlier plea, material was provided to the court which has again been relied on, being 11 supportive character references. It is conceded however, that these do not relate to your conduct behind closed doors, so while they are relevant, they are not of exceptional weight.  Further, your participation on the Board of Governance for organ donation was previously taken into account in your credit.

61The overall assessment made by Judge Gucciardo was based on a significant finding of misconduct, being four separate incidents that were committed over a period of four and a half years; in total, 12 charges, including nine offences of rape. Although you have been found guilty of three separate incidents here, they were committed within 19 months.  I will sentence you on a total of four charges, including three offences of rape. When considering all factors, I find that your prosects are, at best, reasonable.

62General deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and just punishment.  While the sentence I impose will be long, I consider that I must also give specific deterrence some weight in this process, in light of the offences where you have been found guilty. I am also required to balance your prospects of rehabilitation. I note that the standard sentencing legislation is not applicable here.

63I take into account the maximum penalties for each offence and current sentencing practices.  I have considered the sentence imposed by Judge Gucciardo.  In my view, the ongoing delay has become a more significant mitigatory matter, particularly when comparing the ultimate jury verdicts. The principle of totality needs to be considered. I have decided that there must be some, but not total cumulation in the sentences I impose. I have endeavoured to tailor your sentence to ensure that it is proportionate to your criminal conduct overall. In assessing individual sentences, I take into account that Charges 6 and 7 have occurred as part of the one incident.  The proximity of these offences will result in a substantial degree of concurrency.

64Balancing these factors as best I can, I sentence you as follows:

CHARGES	OFFENCE	SENTENCE	CUMULATION
Charge 6	Rape	8 years’ imprisonment	Base sentence
Charge 7	Rape	8 years’ imprisonment	6 months’ imprisonment
Charge 8	Rape	8 years’ imprisonment	1 year imprisonment
Charge 9	Threat to inflict serious injury	9 months’ imprisonment	3 months’ imprisonment

65That is a total effective sentence of nine years and nine months' imprisonment. I will set a non-parole period of six years and 10 months' imprisonment. I direct the records of the court to reflect that you are sentenced as a serious sexual offender for Charge 8.

66I enter in the records of the court that you have served 612 days by way of pre-sentence detention.

67The prosecution has applied for you to be placed on the Sex Offenders Register for life. The application is opposed. The defence does not dispute the legislative regime outlined in the application, including that the court has a discretion to make such an order and if the application is granted, the required length of the reporting period is for life.

68Section 11(3) of the Sex Offenders Registration Act provides:

'The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.' 

67.   This test is a two-stage process.[8] The first step requires the court to be satisfied that you pose the relevant risk outlined above. If so satisfied, the court must determine whether the order should be made in all the relevant circumstances.

[8]        Sayer v R [2018] VSCA 177 [92].

68.   In assessing the risk, I must be satisfied beyond reasonable doubt that you pose a real risk to the sexual safety of one or more persons, or the community, upon your release from custody.

69.   The prosecution relies on a number of factors to establish that you do pose that risk, namely:

·The serious and degrading nature of the sexual offences.

·Two separate incidents occurred, 14 months apart.

·Your offending involved a fundamental breach of trust in a marital relationship.

·Your treatment towards your ex-wife was controlling and belittling.

·The first incident was committed to punish your ex-wife.

·The second incident was committed in anger.

·You have pleaded not guilty to the offences, have a lack of insight into your misconduct and have not shown any remorse.

·

While your general risk of recidivism was assessed as being low by

Ms Fleming, a specific sexual recidivism risk has not been undertaken.

·The gravity of the impact of your offending on the victim was significant.

69In response, the defence conceded that while a risk of reoffending exists in light of the convictions, a number of factors are to be considered in opposing the application, namely:

·You have no prior convictions.

·You are now 46 years old.

·You have no subsequent offences, including while you were released on bail after the retrial was ordered.

·The deterrence effect of a lengthy term of imprisonment.

·You are no longer married, nor do you have a current partner.

·Overall, the court should not be satisfied beyond reasonable doubt that there is a real risk in the future to the sexual safety of others.

70The onus is on the prosecution to satisfy the court that you pose the relevant risk, including at the time you are released from custody, beyond reasonable doubt. The seriousness of your offending has been conceded, as has the risk that you pose, based on your convictions. Given your age, the fact that you are not currently in a relationship may change in the future. Your previous offending occurred in the course of your relationship 'behind closed doors'. You have not accepted responsibility for serious offending, nor shown any insight into what occurred. In all the circumstances, I am satisfied on the matrix of factors to the requisite standard that you pose a real risk to one or more persons.

71The second step requires the court to balance the existent risk posed with the obligations which create restrictions on your freedom and autonomy of actions for the remainder of your life. While I accept that reporting conditions and obligations may be onerous and longstanding, I consider that the gravity of your offending and the real risk that you pose to the safety of one or more persons requires the order to be made.

72I grant the order, with a mandatory period of life registration.

73Can I just go through the sentence again and confirm, Charge 6 was an eight year sentence of imprisonment, that is the base sentence.  Charge 7 was a sentence of eight years' imprisonment with six months' cumulation.  Charge 8, the charge of rape, eight years' imprisonment with one year cumulation.  And Charge 9, threat to inflict serious injury, nine months with three months' cumulation.

74MS LOCKE:  Yes, Your Honour.

75MR COULTER:  Yes, Your Honour.

76HER HONOUR:  Thank you.  As I said, I will have a copy of the sentence available quickly. If either of you would like that please contact my associate and we can send you a draft.  I will confirm that the pre-sentence detention for Mr Seccull is 612 days.

77MS LOCKE:  Yes, thank you, Your Honour.  As the court pleases.

78HER HONOUR:  All right. Is there anything further?

79MS LOCKE:  No.

80MR COULTER:  No, Your Honour, thank you.

81

HER HONOUR:  All right, thank you very much.  I will ask if Mr Coulter could leave the court and everyone else and give you a chance

Ms Locke and Mr Brennan to have a word with Mr Seccull online.  Obviously, it is a matter for you how long you talk for, but we have got some time if you need to talk to him about the sentence and about what is going to happen.

82MS LOCKE:  Thank you, Your Honour.

83HER HONOUR:  Thank you.

84In relation to the release of the indictment, given that the charges were the subject of the trial, I don't think there should be an issue with the indictment, but I don't think the prosecution summary for that offending should be available given that the accused was found not guilty of a number of offences.

85MS LOCKE:  Yes, I agree.  I am not sure if there's a way where the indictment can make it clear that the charges on which Mr - I mean obviously Your Honour's sentencing remarks make it clear which charges - - -

86HER HONOUR:  Yes.

87MS LOCKE:  - - - but just to avoid any confusion.

88HER HONOUR:  What we might do is make a notation on the indictment that Charges 6, 7, 8 and 9 were the ones for which he was found guilty and the balance he was found not guilty.

89MS LOCKE:  Yes, thank you, Your Honour.

90HER HONOUR:  So we will mark that on the indictment if there is no problem with that.

91MS LOCKE:  Thank you.

92MR COULTER:  Yes, Your Honour, that sounds appropriate.

93HER HONOUR:  All right, thanks very much.  I will leave the Bench.

94MS LOCKE:  As Your Honour pleases.

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