Director of Public Prosecutions v Sell

[2023] VCC 1764

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MILDURA

CRIMINAL JURISDICTION

CR 23-00776

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEIGH SELL

---

JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Mildura
DATE OF HEARING:	26 September 2023
DATE OF SENTENCE:	28 September 2023
CASE MAY BE CITED AS:	DPP v Sell
MEDIUM NEUTRAL CITATION:	[2023] VCC 1764

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW SENTENCE

Catchwords:                    Sentencing – persistent contravention of Family Violence Order, aggravated burglary – person present, common-law assault.

Legislation Cited: s6AAA Sentencing Act 1991

Cases Cited:DPP v Meyers [2014] VSCA 31, Skeates (A pseudonym) v The King [2023] VSCA 226, Bugmy V R (2013) 302 ALR 192, Boulton v The Queen [2014] VSCA 342

Sentence:Imprisonment , total effective sentence 4 years and 6 months, non-parole period 3 years and 2 months,

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Caruso	Ms J. Carpenter, Office of Public Prosecutions
For the Accused	Ms M. Greener	Mr H. Middleton, Martin Middleton, Oates Lawyers

HIS HONOUR: 

1Leigh Sell, you have pleaded guilty to one charge of persistent contravention of a family violence order, one charge of aggravated burglary, and one charge of common assault.

2In addition, you pleaded guilty to a related summary offence of committing an indictable offence whilst on bail.

3The facts of your offending are set out in Exhibit A, the prosecution plea summary.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and sentence you on the basis of the facts set out therein.  There is no need therefore to extensively deal with the facts.

4Briefly stated, you were the subject of an intervention order made on 2 May 2022.  You were prohibited from committing family violence against your victim, Isla Bennett[1]and your two-year-old son, Ethan[2].

[1] A pseudonym

[2] A pseudonym

5Between 26 December and 27 December 2022, you persistently contravened that order by:

(i), telephoning your victim 69 times on 26 December, leaving voice messages including one 'you dumb fucking cunt, I'll jump all over your head Isla, you fucking rat';

(ii), attending at her home and banging on her door;

(iii), reattending her home, banging on the front door, banging on the window, and attempting to force your way through the rear door;

(iv), threatening your victim during your offending; and

(v), making a further 79 phone calls on 27 December to your victim.

6On that day you attended at your victim's home at 4 pm.  You knocked on the front door, then ran to the rear door and kicked it in, dislodging the frame and breaking the latch.  You then went inside.  This constitutes Charge 2, aggravated burglary person present within intent to assault.

7Once inside, you assaulted your victim by:

(i), grabbing her in a bear hug;

(ii), hitting her in the throat;

(iii), grabbing her by the hair and forcefully hitting her in the face;

(iv), you followed her into her bedroom and grabbed her by the hair again, hit her head on a bed frame and hit her in the mouth, causing it to bleed.

8Your two-year-old son Ethan told you to stop hitting his mother.  Your victim managed to escape the house and call police before being taken to hospital in an ambulance for treatment.

9You were arrested and interviewed on 4 January 2023.  You admitted an argument with your victim on 26 December but denied the 27 December offending.  You have been in custody since that time including two subsequent sentences of seven days and one month for contraventions of the intervention order and breach of community corrections order.

10Your victim provided a victim impact statement to the court.  She read it to the court.  She outlined the damage your crimes have caused your now three-year-old son.  She has undergone counselling and managed to deal with Ethan acting out, conduct he observed from you.

11She has suffered significantly as a result of your crime: she has nightmares and difficulty sleeping, she is hypervigilant, she suffers from anxiety and panic attacks, her physical and mental health have been ruined.  She said, 'you traumatised your child and treated me as if I was your property'.  Ms Bennett was clearly highly distressed when reading her victim impact statement and her trauma, fear and anxiety were evident.  I take the contents of the victim impact statement into account in sentencing you.

12You have admitted a limited but relevant prior criminal record.

13On 30 November 2020 you were before the Mildura Magistrate's Court for contravening a family violence intervention order, assault, possessing methylamphetamine and cannabis, and possession of ammunition.  You were fined a total of $900.

14I was informed that all your prior offending involved Ms Bennett.

15On 14 December 2020 you were again before the same court on three charges of contravening an intervention order, committing indictable offence on bail, intentionally causing injury and wilfully damaging property.  You were sentenced to a 12-month community corrections order.  You breached that order and a further 12 months CCO was imposed on 8 November 2022.

16The breaching offences were wilfully damaging property and breach of intervention order.  You were sentenced to seven days' imprisonment for those offences. 

17I was informed that on 19 April this year you were sentenced to a further month in prison for breach of an intervention order and assault and bail offences, that you committed on 13 July 2022.  This is not of course a prior conviction for offending for which I am to sentence you but is relevant to pre-sentence detention and totality principles.

18All three of the offences to which you have pleaded guilty are serious criminal offences.  The maximum penalties demonstrate how seriously such offences are viewed.  Aggravated burglary in particular carries a maximum penalty of 25 years' imprisonment.

19Your offending on Charge 1, persistent contravention of an intervention order represents in my view a serious example of that offence.  Your breach was protracted, involved different forms of prohibited conduct, and involved threats and intimidation. 

20Your aggravated burglary offence, Charge 2, is in my view a mid-level example of that offence.  Having regard to the factors identified in the DPP v Meyers[3] by the Court of Appeal as relevant to the assessment of offence seriousness.  You intended to assault your victim, you violently kicked in a door, and you terrified someone particularly frightened of you, with good reason, as demonstrated by your criminal record.

[3]DPP v Meyers [2014] VSCA 31

21On the other hand, you were alone, you were not carrying a weapon, and your offence occurred in the afternoon.

22Significantly you were the subject of an intervention order and on bail at the time and you well knew that you were acting in breach of the intervention order, and that your victim was terrified of you.

23The Court of Appeal has stressed the need for stern sentences for family violence offences.  Recently in Skeates v The King[4] the Court of Appeal said:

The Court has made it clear that acts of violence in a domestic setting, and in particular by men towards women, are utterly abhorrent and unacceptable.  The strength of the language used in these statements is not accidental.  Family violence is contemptible.  It warrants both condemnation and appropriate punishment.  As is plain from these authorities, the fundamental importance of general deterrence in arriving at the appropriate punishment does not diminish the value of specific deterrence and the protection of the community as sentencing considerations.  As the gravity of family violent offences will be aggravated if it breaches an extant Family Violence Intervention Order or is committed in front of children.

[4]Skeates (A pseudonym) v The King [2023] VSCA 226

24Your assault offence, Charge 3, is also an upper‑level example of that offence.  It was a protracted assault and an ongoing assault.  You are indeed fortunate not to be facing a more serious charge.  Your offending occurred in the context of family violence and in the presence of your young child.  It involved multiple blows to your victim's face, head and throat and pulling her hair on two occasions.  Your conduct was cowardly and totally unacceptable.

Personal Circumstances

25You are now 30 years of age, being born in June 1993.  Your history is set out in Exhibit 2, the report of psychologist, Christine Kennedy, and summarised in your counsel's submissions, Exhibit 1.  You identify as indigenous on your mother's side.  You have two younger siblings.

26You report to have grown up in a dysfunctional and violent childhood.  You say that your mother was an alcoholic who regularly beat you, and that your father was physically and verbally aggressive and abusive to both you and your mother.

27Your parents separated when you were six years of age and you continued to live with your mother until you were 12, when you went to live with your father. 

28You claim to have been sexually assaulted by a friend of your father and thereafter lived on the streets until you were taken in by the parents of your first partner when you were about 15 years of age.  You were with that partner for 11 years and have two daughters from that relationship.

29You left school at Year 10 level and found employment with your first partner's father, moving furniture.  You maintained that employment apparently for 10 years.  You have had no contact with your parents and/or your sisters for 18 years.

30You claim that a school friend committed suicide when you were 25 years old.  You further claim that this distressed you significantly and you commenced abusing methylamphetamine.  Your first relationship broke up and you became estranged from your two daughters.

31You found intermittent casual work after leaving the furniture removal work.  You have also worked apparently in a fruit juice processing plant.

32You say that you were significantly stressed by COVID‑19 lock downs and your ice and cannabis use escalated. 

33Ms Kennedy's report causes me significant concerns.  First, it is based on report from you and there is no supporting evidence of your assertions.  Ms Kennedy acknowledged this when she reported:

As stated above, Mr Sell provided a limited personal history.  Importantly I have no way of confirming his historical details and as such, the possibility of exaggeration, minimisation or confabulation cannot be immediately ignored.

34In this regard, it is important to remember that you lied to the police when you were interviewed about this offending.

35Secondly, at paragraph 1 of her report, Ms Kennedy reported:

He said that prior to his incarceration he was not connected with his Aboriginal heritage.  He said that during his incarceration he has learnt about his culture whilst accommodated in an Aboriginal unit at Ravenhall.

36Under the heading 'Diagnosis', Ms Kennedy states:

Based on his self-reported experiences and medical records, his substance abuse is likely to be a maladaptive coping strategy for life stresses and trans‑generational trauma.

I find it difficult to see how trans-generational trauma could affect you when you only connected with your Aboriginal heritage whilst you were in custody. 

37Clearly, the author of the report is attempting to invoke some aspects of the decision in Bugmy[5], in your case.  As I said during your plea, I have real issues with self-report psychological reports.  I am however prepared to accept that you come from a highly disadvantaged background, with significant violence and alcoholism.  You lived a displaced and fractured childhood.  It is no surprise that you ended up a violent man.  Your history led you to where you are today. 

[5] Bugmy V R (2013) 302 ALR 192

38Whether the principles set out in Bugmy are enlivened is unclear.  I do however take your disadvantaged background into account in sentencing you.  Your childhood issues have impacted your later life. That disadvantage, to some extent, moderates the need for deterrence in your case and also reduces your moral culpability for your offending.

39Your counsel placed heavy reliance on your troubled childhood and the comments of Ms Kennedy at p5 of her report.

Mr Sell has a history of substance abuse, impulsivity, and recklessness.  When things go his way he may be gracious, cheerful, and friendly.  More characteristically his behaviour is guarded, reserved and competitive.  When crossed or pushed on personal matters, or faced with embarrassment, he is likely to respond impulsively and become angry.  The rapidly rising antisocial features of Mr Sell's personality mean that without treatment he is likely to continue to have an indifference to the rights of others, continue to engage in social destructive behaviours, and evade taking responsibility for his actions.  In drug treatment, a person with antisocial personality disorder or significant antisocial personality features is likely to have difficulty obeying rules, staying in treatment, and maintaining abstinence.

40As I indicated on your plea, this report does not bode well for your prospects of rehabilitation.

41Your counsel, Ms Greener, in a well-structured and innovative argument, submitted that your need for treatment to address your antisocial personality traits is clear.  She submitted that specific deterrence, general deterrence, denunciation and just punishment, and importantly protection of the community, could be properly dealt with with the imposition of a further term of imprisonment and a lengthy community corrections order.  Such a sentence, she submitted, would ensure that you obtain proper treatment that would not occur if you failed to get parole.  It is in both yours and the community's best interest for you to be rehabilitated. 

42As I said during your plea, the seriousness of your offending is such that I cannot accede to Ms Greener's submissions.  A sentence of a further 12 months' imprisonment and a lengthy community corrections order would not properly give effect to the relevant sentencing considerations and principles in this case.

43Each of the offences for which I am to sentence you requires the imposition of a substantial term of imprisonment.  Although the Court of Appeal has recognised in Boulton[6] that even serious offences can be properly dealt with with the imposition of a combined sentence, the totality of your offending makes such a disposition inadequate in your case.

[6] Boulton v The Queen [2014] VSCA 342

44In addition to the matters I have referred to, I take into account in sentencing you your pleas of guilty.  By pleading guilty you have spared the community the time and expense of a criminal trial, and your victim the added trauma of giving evidence in court.  Your pleas demonstrate an acceptance of responsibility on your behalf for your conduct.

45The value of those pleas of guilty is increased because of the effect COVID‑19 has had upon our justice system and you are entitled to a greater reduction in sentence as a result.  I accept that your pleas were entered at a relatively earlier stage, although your victim was cross-examined at committal proceedings in May of this year.  I will return to the effect of the reduction in sentence subsequently.

46I take into account the three references tendered on your behalf, Exhibit 3.  Molly Valos[7] has known you for 16 years. She is your ex-partner's sister.  She says that you were a good and respectful child and were never violent in any way and she promises future support for you.  Philip McNamee has known you for 20 years and states that you are polite, hardworking, and willing to help others.  Your now partner, Emma Powell, has known you for 15 years but only been your partner for four months.  She says she has not seen or heard of you being violent to women.  She described you as a loving and compassionate man, hardworking and trustworthy.

[7] A pseudonym.

47Those references are relevant to my assessment of your prospects of rehabilitation and paint a different picture to the views of Ms Kennedy as to your antisocial traits.  Overall, I have to regard your prospects of rehabilitation as somewhat guarded, given your criminal record.

48You need to use your time in custody to deal with your methylamphetamine use problems.  Your prospects will be enhanced if you stick to your stated resolve to remain drug free upon your release from custody.

49I have had regard to the cases provided by the prosecution to gain an appreciation of current sentencing practices for offending like yours.  Each case obviously depends on its own unique combination of factors.  Unfortunately, I have had to deal with far too many cases of aggravated burglary and assault over the past 20 years.  As I said, nothing but terms of imprisonment are appropriate for each of your offences. 

50Because of the seriousness of that offending, general deterrence, just punishment and denunciation are the principal sentencing factors in your case.  You also need to be specifically deterred from further offending. 

51I need to send a clear message to those minded to breach intervention orders, commit aggravated burglaries, and cowardly and brutally assault women, that stern punishment will be imposed for that offending.  You blatantly ignored court orders, breached community corrections order and bail conditions. 

52I have had regard to the fact that you have been in continuous custody since 4 January this year.  In that time, as I said, you have served short sentences for similar offending against the same victim.  I have read the summary of those offences and have had regard to principles of totality in fixing an appropriate sentence in this case.

53On all charges you are convicted.

54On Charge 1, persistent contravention of a family violence order, you are sentenced to be imprisoned for 12 months.

55On Charge 2, aggravated burglary, you are sentenced to be imprisoned for three years.

56On Charge 3, common assault, you are sentenced to be imprisoned for two years.

57On the related summary offence of committing an indictable offence on bail, you are sentenced to be imprisoned for one month.

58I order that six months of the sentence imposed on Charge 1, and 12 months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 2, which I declare to be the base sentence.  The sentence imposed on the related summary offences to be served concurrently with other sentences imposed.

59That means you have an effective term of imprisonment of four years and six months.  I order that you serve three years and two months of that sentence before being eligible for parole.

60I declare that 230 days, not including today, as already been served of that sentence by way of pre‑sentence detention.

61I indicate pursuant to s6AAA of the Sentencing Act 1991 that but for your pleas of guilty, I would have imposed an effective term of imprisonment of seven years with a non-parole period of four years and nine months.

62Are there any other orders required, Ms Caruso?

63MS CARUSO:  Not that I am aware of, Your Honour.

64HIS HONOUR:  All right.  I terminate this link and I adjourn now till 10 o'clock.

‑ ‑ ‑