Director of Public Prosecutions v Seddon

[2018] VCC 386

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01949

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS JAMES SEDDON

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 March 2018
CASE MAY BE CITED AS:	DPP v Seddon
MEDIUM NEUTRAL CITATION:	[2018] VCC 386

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr E. Thompson
For the Accused	Mr N. Goodfellow

HIS HONOUR: 

1Nicholas James Seddon, you have pleaded guilty to one charge of using
a firearm whilst prohibited; one charge of make threat to kill; one charge of rape; and one charge of sexual assault. 

2You have admitted you criminal history, which includes, amongst other matters, a conviction for indecent assault and a conviction for make threat to kill.  Remarkably, given your admissions to Martin Jackson, neuropsychologist, there are no convictions for drug matters.

3A victim impact statement of Ebony Muirden[1] was tendered and she was present in court.  It movingly sets out the consequences of your offending and the breach of trust that was involved. 

[1] “Ebony Muirden is a pseudonym”

4You are to be sentenced as a serious sexual offender on Charge 4 and
a serious violent offender on Charge 2. 

5The facts of the matter are set out in the prosecution opening upon plea, Exhibit 1.  Any reader of these reasons can refer to those facts to place the sentence in its full factual context, it was not disputed by your counsel. 

6Briefly stated, you were aged 28 at the time of the offending. Ebony Muirden was 47.  You were a friend of her partner's, Beau Turley[2].  You phoned him, asking to come over to his place to play pool and have a few drinks. Turley collected you and took you back to his home.  At about 3.30, you and Turley drank some Jim Beam and played pool.  At around 5.30, Ms Muirden arrived home.  She had known you for some two to three years.  Pizzas were ordered and the night continued. 

[2] “Beau Turley is a pseudonym”

7Around ten you asked Turley to drive you home.  He refused, as he had been drinking and it was agreed that the complainant would drive you home at around 10.20 to 10.25.  You got into the car with her and gave her directions, which after a complicated route, finished up on a dirt road.  At a bend in the road, at one stage, you put the handbrake on in the car, causing it to halt.  She saw you had a gun and you were pointing it in her direction. 

8You told her to get out of the car.  There was a struggle over her mobile phone and you overpowered her.  She complied with your demand to get out of the car.  Once out of the car, you forced her to the ground.  You still had the gun in your hand.  She kept asking you, "What are you doing?"  She feared for her life.  You had your left hand around her throat and you were holding the gun in your right hand.  You said, "Get them off."  She said, "What do you mean?"  You said, "Get your pants off, it's what you want, it's what youse all want."

9She was trying to get your hand off her throat, but you kept gripping it more tightly.  She screamed.  You bashed the gun into her left thigh a couple of times and said, "I'm going to use this and put you in the boot of your car."  The gun discharged.  You said you were going to kill her.  You pointed the gun at her head and said, "I'll kill you." 

10You put a finger inside her vagina and sucked on her left breast.  She was pleading with you during the entire incident.  You said, "You're not my friend, you're going to dob me in.  You are just like the rest.  I'm going to end you now."  You were fondling both of her breasts.  She went to grab for the gun, but you seized it.  You lifted her legs straight up and started rubbing your penis up against her vagina.  She was screaming loudly, "Why are you doing this?  Don't hurt me, we're friends.  You're Beau’s friend."  You kept saying, "I'm sorry,
I fucked up."  At the end you said, still holding the gun, "Why have I done this?  Don't tell anyone."

11Early pleas of guilty were entered in this matter and I accept that. 

12On your behalf, your counsel filed an outline of submissions and made oral submissions.  He tendered a report from Martin Jackson, neuropsychologist, dated 16 February 2018. 

13In mitigation, Mr Goodfellow relied on:

(1) Your early pleas of guilty; 

(2) Your personal circumstances and background;

(3) Your intellectual disability;

(4) He submitted you had guarded prospects of rehabilitation; and

(5) He submitted that I should consider the issue of totality.

14In relation to the serious violent offender and serious sexual offender findings, you are to be sentenced as such.  Thus protection of the community is an important consideration. The prosecution are not seeking a disproportionate sentence.

15I have had a look at the relevant provisions of s.6 of the Sentencing Act and have considered the principles of totality and proportionality. I have taken all the submissions made by your counsel into account. 

16Your dysfunctional childhood is comprehensively set out in Mr Jackson's report.  It would seem that you had very little proper childhood.  Your father did not want you.  Your step-father was a bad drunk.  When you were around eight to ten, you were made a Ward of the State and moved constantly between foster families. 

17You have only ever attended primary school to the end of Grade 6.  You have no formal qualifications.  You have had labouring work, but the last time you worked was a long time ago, you told him. 

18You became part of a gang culture in Gippsland and in fact, you told him you operated a gang of some 25 people.  You began using drugs around the age of 13 to 14.  You started using cannabis at the age of 11 and have used ecstasy and cocaine, plus you have a history of heavy alcohol abuse. 

19Mr Jackson conducted a number of tests upon you and came to the conclusion that you have an IQ level of 60, which he classifies extremely low and your perceptual intellectual abilities were low/average to average. 

20It was a comprehensive report. Sometimes it confused me, but I understand his assessment of you.  You said that you reported a history of low frustration tolerance.  You said that you had little idea of what would occur to you once you were released from custody.  It would seem that you will straightaway become homeless.  He classified your disability as a mild intellectual disability.

21In relation to how you would cope in custody, at p.15, Point (f), he said he was unable to give a prognosis with regards to any neuropsychological condition in the event of you being sentenced to imprisonment, as the exact nature and severity of your neuropsychological condition, at this point in time, is not known.  He said you had a long history of problems with anger and frustration, as well as your mental health condition, they were all contributors to your behaviour, as well as the likelihood of re-offending. 

22I note that you have now spent a considerable period of time in custody, awaiting resolution of these matters, but there is no material before me that suggests you have had any serious medical issues because of that. 

23You counsel conceded that this was serious offending.  It was an isolated area and aggravated by the use of a firearm.  He said you had been drinking heavily and using ecstasy and ice and had no memory of what occurred.  He told me that upon release, you will be homeless.  He pointed to the gap in your criminal history, which ceases from the year 2012 until the time of this offending. 

24You have done some courses in gaol. 

25You have four children.  You have various stages of contact with three of them. 

26In sentencing you, I have to take into account these matters.  The basic purposes for which a court may impose a sentence of punishment:  General deterrence, that is, I have to impose a sentence that tells other people not to commit similar offences; specific deterrence, that is to convince you not to
re-offending when you are released; denunciation; and protection of the community.  I regard all of those matters as important sentencing factors here. 

27In sentencing you, I must have regard to a range of matters, such as, the seriousness of the offending; the culpability for it; your personal circumstances and those of the victim.

28As to you prospects of rehabilitation, I am, to be frank, pessimistic about that, given the type of offending that has occurred here and your lengthy criminal history. 

29In sentencing you, I certainly have taken into account your early plea of guilty.  It is particularly important in crimes of sexual offending, where it saves the victim the trauma of giving evidence at a committal and in front of a jury.  It also saves the community the expense of a criminal trial and you have been given the appropriate discount for the early entry of that plea.

30In discussion during the plea, submissions were made as to how I should consider your very unfortunate background.  I have to weigh up that background, as is set out in the case of Bugmy, which was referred to in discussion.  In my view, you have had a deprived and traumatic childhood and that may constitute a mitigating factor in sentencing you.  The weight to be given to that material and moderating the weight which would otherwise be given to specific and general deterrence and other sentencing considerations, depends on the circumstances of each case, the court said. 

31In my view, because of the seriousness of the offending, although I have given it some weight, it has a limited application because of the nature of that offending here. 

32Ms Muirden, out of the kindness of her heart, offered to drive you home.  She knew you.  You were a friend of her partner's.  She trusted you.  You abused that trust.  Your behaviour was shameful, degrading, extremely threatening and very frightening to her. 

33I have taken into account the principles, as I said, of totality and proportionality.  Weighing all those matters up as best as I can, I have arrived at the following sentences:

34In relation to Charge 1, I sentence you to a term of imprisonment of nine months.

35Charge 2, make threat to kill, I sentence you to a term of imprisonment of
12 months. 

36I fix Charge 3, the rape charge, as the base count because it is the most serious charge and sentence you to a term of imprisonment of six and a half years. 

37In relation to Charge 4, the sexual assault, I sentence you to a term of imprisonment of 12 months. 

38I declare that three months of the sentence on Charge 1; six months of the sentence on Charge 2; and three months of the sentence of Charge 4, be served cumulatively with each other and cumulatively with the base sentence, Charge 3, which makes a total effective sentence of seven and a half years. 

39Just check my arithmetic on that, gentlemen.  That is right.

40MR THOMPSON:  Yes, Your Honour. 

41HIS HONOUR:  I declare that you serve a period of six years, before being eligible for parole. 

42What is the PSD now?

43MR THOMPSON:  Four four two.

44HIS HONOUR:  Four four two.

45MR THOMPSON:  Excluding today, Your Honour.

46HIS HONOUR:  I declare that the time of 442 day you have already served, be reckoned to be part of the term of imprisonment that I have just imposed.

47I declare, pursuant to s.6AAA of the Sentencing Act, always a difficult proposition for me, as I really have no idea what I would do after running a trial and if a jury convicted you, but I am required to make a declaration.  So doing the best I can, I would say that if you had pleaded not guilty and you were convicted of these offences by a jury, you would have received a sentence, at least, of 13 years, with the non-parole period of ten.

48Are there any other orders I need to make?

49COUNSEL:  No, Your Honour.

50HIS HONOUR:  The Sex Offenders Registration Act does not apply, so I do not have to make an order there and I do not have to make any other orders?

51MR THOMPSON:  No, Your Honour.

52MR GOODFELLOW:  Your Honour has already a disposal order, I think, yes.

53HIS HONOUR:  Disposal order, I have made that, yes.  All right, thank you, take Mr Seddon out thank you.  All right, thank you, we will turn you off in the Latrobe Valley and you two gentlemen are excused.

54MR THOMPSON:  As Your Honour pleases.

55MR GOODFELLOW:  Thank you, Your Honour.

56HIS HONOUR:  And I will carry on.  Well, I will come back at ten then. 

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