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:

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

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

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Secombe v The Queen

Details

AGLC: Secombe v The Queen [2014] VSCA 28
Case: [2014] VSCA 28
Decision Date: 12 February 2014

CaseChat Overview and Summary

The applicant, Secombe, sought leave to appeal against his sentence, imposed by the County Court, on the grounds that it was manifestly excessive and that the trial judge failed to take into account the totality of the circumstances and the applicant's background. The charges against Secombe included aggravated burglary, making threats to kill, common assault, and criminal damage. The County Court sentenced him to a total effective sentence of five years imprisonment with a non-parole period of three years and six months.

The key legal issues the court had to decide were whether the sentence imposed was manifestly excessive and whether the trial judge failed to take into account the principles of totality and proportionality as well as the background of the accused. The applicant contended that the sentence was manifestly excessive and that the trial judge did not properly consider the totality of the circumstances and his background, which included a history of mental illness and a troubled upbringing.

The court, however, found that the sentence was not manifestly excessive and that the trial judge had indeed considered the principles of totality and proportionality as well as the applicant's background. The court held that the sentence was within the range of appropriate penalties for the offences committed and that the trial judge had appropriately weighed the circumstances of the case and the applicant's background in arriving at the sentence. The court further noted that the trial judge had provided adequate reasons for the sentence, which demonstrated a proper consideration of the relevant factors. Consequently, the court dismissed the application for leave to appeal.

No further orders were made by the court.

Orders