Secombe v The Queen

[2014] VSCA 28

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0187

JAMES RICHARD SECOMBE

Applicant

v

THE QUEEN

Respondent

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JUDGES	NEAVE and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	12 February 2014
DATE OF JUDGMENT	Judgment 12 February 2014, Reasons 28 February 2014.
MEDIUM NEUTRAL CITATION	[2014] VSCA 28
JUDGMENT APPEALED FROM	DPP v Secombe (Unreported, County Court of Victoria, Judge Gucciardo, 3 September 2013).

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CRIMINAL LAW – Sentencing – Charges of aggravated burglary, making threats to kill, common assault and criminal damage  – Total effective sentence of five years imprisonment with a non-parole period of three years and six months – Sentence not manifestly excessive – Trial judge did not fail to take into account totality and proportionality – Trial judge did not fail to take into account background of the accused – Application refused – Sentencing Act 1991 ss 6B, 6C and 6F – Azzopardi v R (2011) 35 VR 43 – Bugmy v The Queen [2013] HCA 37 – No point of principle.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Mr V G Peters	Tait Lawyers
For the Crown	Mr B Kissane	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

1. On 19 August 2013 the applicant, James Secombe, pleaded guilty to aggravated burglary, making threats to kill, common assault and criminal damage.  On 3 September 2013, he was sentenced as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary [Crimes Act 1958 (Vic) s 77(1)]	25 years	42 months	Base
2	Make threats to kill [Crimes Act 1958 (Vic) s 20][1]	10 years	18 months	6 months
3	Common Assault [contrary to common law][2]	5 years	30 months	12 months
4	Criminal Damage [Crimes Act 1958 (Vic) s 197(1)]	10 years	6 months	Nil
Total Effective Sentence:		5 years’ imprisonment
Non-Parole Period:		3 years and 6 months[3]

[1]Rolled up count. The applicant was sentenced as a serious violent offender pursuant to s 6F of the Sentencing At 1991 (Vic).

[2]Rolled up count.

[3]Because the applicant was previously serving a sentence, his Honour fixed a new non-parole period

1. He now seeks leave to appeal against his sentence.  The leave application refers only to ‘the sentence’ but appears to relate to both the individual sentences and total effective sentence. 

The offending

1. The circumstances of the offending were as follows.  On 30 July 2012 at 5 am in the morning, the applicant broke into the victim’s home armed with a tyre lever.  The victim, Ms Carla Taylor, had previously been in a relationship with the applicant for 13 years.  At the time of the offending, Ms Taylor and the applicant had been separated for two years.  The relationship had been violent and there were intervention orders in place against the applicant, although they had expired at the time of the offending. 

1. Ms Taylor was present in the house, and awoke to the sound of the back door opening.  She got out of bed and saw a person about five metres away in the dark.  Ms Taylor confronted the intruder asking ‘Who’s that?’ and the applicant replied ‘Who the fuck do you think it is’.  Ms Taylor recognised the applicant.  She then asked the applicant what he wanted and he replied, ‘I’m going to kill you tonight’.  The applicant walked towards Ms Taylor and she could see that he was holding the weapon.  He then stood over Ms Taylor and repeated, ‘I’m going to kill you with this tonight’ and accused her of having an affair with his brother.  The applicant then grabbed Ms Taylor around the throat, accusing her of lying, head-butted her twice and pushed her down onto a chair. 

1. During the attack, the applicant called out to her friend, Sandra McKennisken, who was asleep on the couch.  She then retreated to the bathroom, where the applicant followed her, head butting her again.  The applicant then told her that Ms McKennisken was not going to help her and he would kill her in front of her friend.  Ms Taylor then talked to the applicant for a number of hours, attempting to pacify him, before she left the house at 8:30am with Ms McKennisken to drive to Horsham.  Ms Taylor returned at 4:00pm and another argument ensued, where the applicant again head butted Ms Taylor.  The applicant remained in Ms Taylor’s home throughout the next day, threatening to bash her if she called the police. 

1. On 31 July 2012 the police attended Ms Taylor’s home.  She told them that she was safe but that the applicant remained in her home.  On 1 August 2012, she left and sought refuge at a nearby friend’s house.  The applicant followed her there, making threats, including approaching her with a tin of pears and asking her if the lid would kill a person if it was used to slice their throat.  After some discussion with the applicant, Ms Taylor then attempted to leave in her car and the applicant smashed the rear vision mirror.  Ms Taylor then went to speak to Jeremy Newell from the Aboriginal Cooperative.  Mr Newell observed that Ms Taylor was crying and upset.  Ms Taylor advised him that she needed help and that the applicant had been harassing her.  Mr Newell advised Ms Taylor to call the police.  The matter was reported to police later that day.  The applicant was arrested on 2 August 2012 and denied the offending to police. 

1. The applicant sought leave to appeal against his sentence on the following grounds:

1.        The sentences imposed are manifestly excessive;

2. That the learned trial judge erred in failing to properly take into account the totality and proportionality principles in the orders for cumulation and concurrency; and

3. That the learned judge failed to take sufficient account of the background of the accused.

1. Because of the overlap between the three grounds, we will consider them together.

Counsel’s submissions

1. The applicant submits that the sentences imposed on the threats to kill and the common assault were manifestly excessive, having regard to the fact that the aggravated burglary and these offences should be regarded as part of ‘ an on-going criminal act which lasted over 3 days’.  The applicant also submits that the individual sentence of six months imposed for criminal damage (charge 4) was manifestly excessive, because the offence only resulted in approximately $100 damage to the motor vehicle.

1. The applicant argues that the trial judge erred in the orders for cumulation made in respect of the sentences imposed on charges 2 and 3, although he concedes that, as the applicant was sentenced as a serious violent offender on charge 2,[4] a presumption of cumulation applied under s 16(1A)(c) of the Sentencing Act 1991, in relation to the sentence imposed on that charge.  He argues that the excessive amounts of cumulation ordered by his Honour resulted in a manifestly excessive total effective sentence.

   [4]As defined in Sentencing Act 1991, ss 6B and 6C.

1. In essence ground 3 is a particular of manifest excess.  The applicant argues that the trial judge failed to take into account the deprived and traumatic child hood of the applicant, who is an Aboriginal man.  The applicant submits that the trial judge gave insufficient weight to the report of forensic psychologist Warren Simmons, prepared on 14 March 2013, which described the applicant’s childhood, including rejection by his mother, the untimely deaths of a number of significant individuals in his family and a history of drug and alcohol abuse which began when he was in his early teens.  He submits that the failure to consider those matters is reflected in the undue severity of the sentences imposed.

1. The respondent relies on Sentencing Snapshots complied by the Sentencing Advisory Council to support the submission that the sentences imposed for the aggravated burglary and the threats to kill were well within the range of sentences which could be imposed for these offences.  The respondent also submits that the sentence of 30 months imposed for the common assault covered by charge 3 was not manifestly excessive, having regard to the fact that it was a rolled up charge and that the applicant had many prior convictions, a significant history of violence, and had been sentenced in 2005 for a violent attack on the same victim, in which she was struck in the face, kicked in the stomach and hit in the legs and head with a cricket bat, causing her serious injuries.  He had also received sentences of imprisonment for attacks on three women, in an incident occurring after the offences to which this application relates

Conclusion 

1. In my view none of the grounds of appeal are reasonably arguable.  In order to succeed on the ground of manifest excess the applicant must show that the sentence imposed was so far outside the range available to the trial judge that the excess is clear and unmistakable.  As President Maxwell put it in R v Abbott:

[T]he ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances.  That is a stringent requirement, difficult to satisfy.  It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance.  Sentencing is not the task of appellate courts, except where clear error is shown.[5]

[5](2007) 170 A Crim R 306, [14].

1. In my view the individual sentences on charges 1, 2 and 3 and the total effective sentence fell well within the range of sentences which could be imposed in the circumstances of this case.  This was a serious example of aggravated burglary, involving the invasion of the victim’s home with a tyre lever at 5 am, when the victim was asleep.  The aggravated burglary was completed when the applicant entered the house.  There was no double punishment in this case, because the threats to kill and assault were separate offences, committed after the offender had entered the house.[6]  One of the threats to kill covered by the rolled up count included the threat made the day after the applicant committed the offence of aggravated burglary. 

   [6]Compare the circumstances in Azzopardi v R (2011) 35 VR 43, where the Crown conceded that the individual sentences imposed on some of the armed robbery counts amounted to double punishment, in circumstances where violence was treated as aggravating the seriousness of the armed robbery counts but the offenders had also been punished for intentionally causing injury or serious injury or common assault.

1. The sentence imposed on charge 2 was higher than the median of sentences of imprisonment imposed for this offence, but this was entirely appropriate.[7] The offence was a rolled up count and the applicant had previously been convicted of threatening to kill the same victim and had breached intervention orders.  The orders for cumulation of the sentences imposed on charges 2 and 3 were modest.

   [7]Victorian Sentencing Advisory Council, Snapshot 143. The median sentence for making a threat to kill is 12 months’ imprisonment. 

1. The judge was required to consider whether the total effective sentence arrived at through the process of instinctive synthesis, was ‘a just measure of an offender’s total criminality’ and satisfied all ‘sentencing objectives applicable to the entirety of that criminal conduct’.[8]  In my opinion it is not reasonably arguable that the total penalty was disproportionate to the entirety of the offender’s criminal behaviour. 

   [8]Azzopardi v R (2011) 35 VR 43, 62, [61] (Redlich JA, Coghlan AJA and Macaulay AJA agreeing)

1. In his sentencing remarks, the trial judge explicitly referred to the principle of totality,[9] observing that:

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.

[9]In the context of fixing a new non-parole period.

1. The applicant subjected the mother of his children to a frightening ordeal.  He showed no remorse for his previous assaults on her and learned nothing from the term of imprisonment he served for the earlier incident.  He has an appalling criminal history which has involved assaults on many women with whom he has had relationships.  Standing alone the sentence imposed on charge 4 may have been regarded as too high, but no portion of that sentence was cumulated on the head sentence.  Having regard to all of these matters and to the principles of denunciation, special and general deterrence I consider that the sentence of five years imprisonment with a three year and six month non-parole period was  unremarkable. 

1. I would also reject the submission that the judge had insufficient regard to the applicant’s background, including the fact that the applicant is an Aboriginal man who had experienced a difficult childhood.[10] In his sentencing remarks, his Honour carefully considered the difficulties faced by the applicant, whilst noting that it was

   [10]As to the significance of an Indigenous background in sentencing see Bugmy v The Queen [2013] HCA 37; DPP v Terrick [2009] VSCA 220, [46]­­–[50].

Mr Secombe’s use of drugs made a significant contribution to his violent behaviour.
He said:

You are 40 years old, an Aboriginal man.  You are said to be intelligent, articulate and insightful to some extent, though that insight seem not to extend to how to behave towards women who are in a relationship with you.

You 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.

You 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.

…

You 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 clearly mistaken, if not delusional.

1. His Honour clearly took the applicant’s sad history and the disadvantage he had suffered as an indigenous man into account, but balanced these mitigating factors against the seriousness of the offending, the applicant’s lengthy criminal history and other relevant sentencing factors.

1. For these reasons, I would refuse the application.

BONGIORNO JA:

1. I agree that the application for leave to appeal should be refused for the reasons given by Neave JA.

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