Director of Public Prosecutions v Secombe

[2013] VCC 1326

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01160

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES SECOMBE

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	03 September 2013
CASE MAY BE CITED AS:	DPP v Secombe
MEDIUM NEUTRAL CITATION:	[2013] VCC 1326

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Peters
For the Accused	Ms B. Paridaen

HIS HONOUR:

1James Richard Secombe, you have pleaded guilty to one charge of aggravated burglary, one of making a threat to kill, one of common assault and one of criminal damage.  These charges arose between 30 July 2012 and 1 August 2012. The events are described in detail in the summary of prosecution opening which is retained on the court file.

2On the relevant days you entered the unit belonging to your ex-partner, to whom I shall refer to as "T".  You knew she was present in the unit and you had with you an offensive weapon, a tyre lever, with you when you entered. 

3After you entered, you threatened and assaulted T by head butting her a number of times and threatening to kill her a number of times, grabbed her around the throat, pushed her into a chair whilst using insulting, demeaning language.  On one occasion in that period, when she decided to leave the premises, you followed her and you then kicked and broke the side mirror on her car. .  At the end of these events, just before the matter was reported to police, she was seen to be hysterical, crying and shaking.

4You had entered the unit via an open back door.  You were looking for your brother, with whom you had had a fight and who you alleged stole some money from you. 

5The experience of you entering at about 5 am, assaulting and threatening T and a friend who was sleeping there, was frightful and terrifying.  Though you later denied it to police, she believed you were affected by speed.  You also denied any assault or threat when interviewed.  You were at the unit for a substantial number of hours and, when T's friend left, you again assaulted T.  This conduct was terrifying to the victim .

6In relation to the threat to kill charge,  you are to be sentenced as a serious violent offender as defined in the legislation and I will sentence you with the primary consideration being protection of the community and abiding by the presumption for cumulation which the section requires. I will not however, impose a disproportionate sentence or a wholly cumulative sentence. 

7A victim impact statement was prepared in which T expresses her trauma and the consequences of your actions.  After the event, she says she was forced to move to a refuge for women.  She has experienced significant stress and her self-esteem and self-worth are very low.  She attests to your use of speed as a drug of preference.  She alleged that you were on it at the time of the offence which, as I have said, you denied.  Whether you were affected by any substance, only you can say.  The results of the longstanding habit of self-administering a drug like speed must have been clear to you, and so your drug abuse can have no mitigating effect on your sentence, even if you were affected at the time.

8You have a substantial criminal history.  You are aged 40 and your priors stretch to when you were 18 years of age.  You have many priors for violence and a lot of those matters are incidents of domestic violence towards women with whom you have had some kind of relationship. 

9In 2005, you were sentenced by this court to three years' imprisonment with a non parole period of 18 months for recklessly causing injury, intentionally causing serious injury and recklessly causing serious injury.  At that time, you had admitted 58 prior convictions from 13 court appearances prior to 2005.  You had received prison sentences for many crimes of violence, dishonesty, serious driving offences, wilfully damaging property and making threats to kill, amongst others.  You have been, from time to time, given community dispositions and suspended sentences and you have inevitably moved onto period of incarcerations.

10In October 2005, His Honour Judge Barnett, a very experienced judge of this court, sentenced you in relation to events involving T, the victim in this case.  She was the mother of five children, two of whom were fathered by you.  They were then 17 months and ten weeks old.  You had just been released from gaol for a series of violent offences and you went back to using amphetamines and you went to her address, abused her, struck her in the face, kicked her in the stomach and later threatened to kill her.  You picked up a cricket bat and struck her legs and head, causing serious injuries. 

11Those events are remarkably similar to the events which have led to these charges.  Those crimes His Honour dealt with had been committed by you on T in October 2004.  Before he dealt with you a year later, you again had assaulted her in March 2005, after which you received an 18 month term with a 12 month minimum, but clearly these periods of reclusion had taught you little, in terms of your behaviour towards women, especially when you have taken drugs like amphetamines.

12In 2008, you received a sentence for an aggravated assault on a female in breach of an Intervention Order.  In 2010, you contravened a Family Violence Order, for which you were fined and the matter was adjourned to 2011.  Despite compliance with your undertaking, by the year 2012 you have again assaulted T. 

13The learned judge in 2005 had noted that your prior convictions then clearly limited the degree of leniency that would be extended to you at that time.  He expressed strong concerns in relation to your ability to rehabilitate. 

14These offences with which I am to deal with display a disregard for T which, in view of your history, is absolutely breathtaking.  Despite having fathered two children with her, you continue to effectively deal with her in the most abhorrent and appalling fashion. 

15Neither your anger at your brother over a matter of stolen money, nor his use of the car , can excuse the way in which you continue to assault and threaten the victim.  Such instances of domestic violence are unfortunately prevalent in our community, and the community looks to the court to offer protection generally and deter your specifically.  This sentence must adequately denounce your conduct and endeavour to deter you by stern punishment. 

16General deterrence is also an important factor which I take into account.  I consider that your prospects of rehabilitation are poor and I have recited your criminal history not because I am going to punish you again for any of those offences, but because such history is a clear indicator of your prospects.

17I was properly told of other matters which occurred in December 2012, after the incident which I am dealing with, and which in March 2013 led to yet another sentence of imprisonment for 20 months, with a non parole period of ten months.  These matters involved three women as your victims.  One sustained a laceration to her head after an argument.  You threatened another, the mother of the first victim who stepped in to help, and you pushed a third woman, causing a large cut to her head. 

18You were also, on that occasion, dealt with for other offences which you committed in September 2012, in which you committed a stalking offence and a threat to kill.  Another woman with whom you had broken up in July 2012, and who is mentioned in the charges before me was the victim on that occasion.  You said to her, "What I did to T was nothing to what I will do to you."  You threatened to kill her again after you were bailed by police.

19These matters, though they are not priors, are relevant in confirming that your disposition towards women and your propensity to violence towards them displayed on the occasions with which I am concerned are not isolated, but they demonstrate, together with your priors, that you are probably a recidivist violent offender and the primary consideration in this sentence must be specific deterrence of you. 

20Aggravated burglary is a very serious criminal offence, as are criminal damage, threat to kill, which both carry ten year maximums, and assault, which has a maximum of five years.  Aggravated burglary carries a maximum 25 years.  By these range of penalties, the law intends to indicate the relative seriousness of these offences and in my view these offences with which I am dealing with are grave examples of each of these offences.  They describe a course of conduct over the course of some days and in relation to the assaults and threat to kill are rolled up counts. I consider there should be some cumulation as indicating the commission of separate offences during the course of the conduct.

21I take your plea into account.  I will accord it a discount for its utilitarian value of having saved the state the cost of the trial and spared your victim further stress and trauma of giving evidence.  I find little evidence of any remorse.  You vehemently denied your offences to police and though the summary was said to be accepted in court by your plea, you visibly disagreed with much of what the prosecution put as a summary of your offending.

22I take into account your personal circumstances.  You are 40 years old, an Aboriginal man.  You are said to be intelligent, articulate and insightful to some extent, though that insight seems not to extend to how to behave towards women who are in relationship with you.

23You were born and raised in Horsham.  Your mother passed away when you were 33 in 2006.  Your father passed away in 2000 when you were 27.  You mother had re-partnered and your stepfather died in 1983 when you were 13 years old.  You have four older half-siblings born to your mother.  You considered your stepfather as your real father figure and endured a warm and loving relationship with him, while your mother appears to have cared little for you.  She had problems with alcohol and often displayed violence towards your stepfather and the family generally.

24You were interviewed by Warren Simmons, a psychologist, who wrote a report of that assessment.  You told him you had been sexually abused by an older brother who was later gaoled for abusing his own children.  After your stepfather's death, your life became less stable and you occasionally lived on the streets.  You left school after Year 10 and had work in the manufacturing industry and since that time you have had many labouring jobs for various periods.

25You began a relationship at age 16 and you have apparently fathered a number of children with whom you have little contact.  In 1998, you commenced a relationship with T.  The relationship lasted over ten years and there are two children of that relationship, both of whom are now in foster care.  In 2011 you had a relationship with another woman, which ended after 18 months, probably as a result of violence.

26You have used alcohol and drugs since a young age and have fluctuated between binge use and measured consumption all your life.  You have used amphetamines since age 15.  By 2006, this use was daily.  You also used methamphetamines, peaking at daily use.  You told Mr Simmons the drugs helped you to control your emotions and give you positive feelings and clarity.  In this belief you are clearing mistaken, if not delusional.

27You have regularly smoked cannabis and you have participated in drug and alcohol counselling at the Grampians Community Health Centre on an intermittent basis.  Mr Henwood for the Centre wrote a letter on your behalf.  In his opinion, your use of amphetamines has led to most of your criminal behaviour.  In his opinion, if you were to abstain from drugs, you are capable of positive change, however your intelligence fails you when drugs are involved.  Mr Henwood says he has worked with you as a group facilitator with the mens' behaviour change program and that you have engaged with him for six years.  Though he and Mr Simmons described you as insightful and intelligent, it is plain that such program engagement has had little impact on your mentality.

28Upon your plea it was put that you have developed unusual and immature attitude towards women characterised by seemingly total lack of understanding and a tendency to blame your victims for what is solely your responsibility.  I take into account what appear to be symptoms of obsessive compulsive disorder and unresolved grief at the loss of your daughter leading to past attempts at self-harm.

29I take into account the principle of totality.  Not only your priors but post-offence conduct indicate that you may be on the brink of institutionalisation, having spent some ten years in custody, a quarter of your life.  I am conscious in fixing a new non-parole period, of the period you are currently serving of some 20 months as a head sentence and ten months non parole period expiring in October of this year.  It may be that drug and alcohol counselling, pharmacotherapy, psychological therapy and grief counselling would over a long period begin to address your issues.  A parole period in which you were given the opportunity to access such programs may capitalise on your intelligence and enhance the currently poor prospects for rehabilitation.  I have not lost sight of such a worthy aim, even if the sentence must inevitably be of imprisonment.  In formulating it , I take into account all the matters, including totality, to impose an appropriate sentence which satisfies punitive and mitigatory objectives of sentencing.  I will partly cumulate individual sentences upon the base sentence, achieve the head sentence and set a new non-parole period accordingly and in doing so I have endeavoured to ensure there is appropriate relativity between the totality of the criminality before me and the totality of the effective length of sentences imposed, including the sentence being served as a consequence of the matters of March 2014 and also the consequences of being a serious violent offender.  Please stand.

30In relation to aggravated burglary, you are convicted and sentenced to three and a half years' imprisonment.  On making a threat to kill, you are convicted and sentenced to 18 months' imprisonment.  On common assault, you are convicted to two and a half years' imprisonment and on criminal damage you are convicted and sentenced to six months' imprisonment.

31I order that six months on Count 2, the threat to kill, and 12 months on Count 3, the common assault, be cumulative on Count 1, the base sentence of aggravated burglary, making a total of five years.  I fix a new non-parole period of 42 months, three years and six months.  I have signed the disposal orders.

32I have ordered that you pay compensation to Carla Taylor of $250.  There is no pre-sentence detention to record in the records of the court and I declare that but for your plea I would have sentenced you to six years with a non-parole period of four and a half years.

33Are there any other orders that I need to make?

34MS PARIDAEN:  No, Your Honour.

35MR PETERS:  Your Honour, the terms, are they cumulative or concurrent with the current sentence?

36HIS HONOUR:  They are concurrent with the current sentence.

37MR PETERS:  Concurrent?  Thank you, Your Honour.

38HIS HONOUR:  Yes, you can remove Mr Secombe.  Ms Paridaen, thank you, I will not retain you further.  Thank you very much for your attendance.

39MS PARIDAEN:  Thank you, Your Honour.

40HIS HONOUR:  All right.  Thank you, Mr Peters.

41MR PETERS:  Thank you, Your Honour.

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