DPP v Secombe [2016] VCC 1158

Mr Sinclair's role in all of this, you attacked his mother's car which was then parked in the carport next to her house. You smashed the back window and set fire to the car, resulting in its total loss (charge 4, arson). Your actions have caused persisting fear and distress to Mr and Ms Sinclair as the victim impact statements show.[2]

2. On that same night, you also smashed windows of two other vehicles that were parked nearby (charges 5 and 6, criminal damage).

1. You were arrested on 24 September 2014 and in the record of interview acknowledged some of your behaviour on 14 September 2014 but denied involvement in the events of 21 September 2014.
2. You were committed for trial and after a contested committal on 15 May 2015, the matter resolved on 5 April 2016 after it was listed for trial in the circuit sitting of the County Court at Horsham commencing 2 February 2016.
3. You have been in custody since late last year following cancellation of your bail and the issue of a warrant. According to counsel's calculations, you have been in custody for 244 days, not including today.

1. You admitted your prior criminal history. You have been before the courts on a number of sentencing occasions for offending that includes drug offences, a charge of arson when you were child in 2009, charges of criminal damage in 2013, contravention of family violence intervention orders and assault.
2. You have been the subject of three Community Corrections Orders (CCO's), two of them were in operation when these offences were committed. It is no overstatement to say that your engagement with them has been negligible. The only glimmer of hope in regard to changes to your behaviour appears in the report of the forensic counsellor, Caleb Lorenz from Grampians Community Health, prepared on 7 April 2015 in which he reported that you had engaged to a degree, but had nevertheless persisted with regular substance abuse.

1. Mr Secombe, I state to you that I have taken the following matters into account in mitigation of sentence.
2. First your plea of guilty. Though not entered at the earliest possible stage, it has saved the community the cost and the victims the stress of a trial, and you are entitled to have these matters taken into account in mitigation of the sentence and I have done so. Further, though expressed somewhat faintly and only recently, I take your plea to be an acknowledgement of your criminal responsibility for your actions and of your (eventual) remorse for the terror your actions have caused to others.
3. On the subject of remorse, I should mention the fact that your behaviour after your arrest for this offending was appalling. I was informed without objection that on New Year's Day 2015, you pursued and assaulted Mr Sinclair and even after your arrest for that assault (for which a third CCO was imposed) you continued to post threatening messages about him on your Facebook page, the content of some of them was read to the court. Nevertheless you have expressed remorse by your plea and in your consultation with Dr Zimmerman.
4. Secondly, I have taken into account your youth, you were only 21 years of age when this offending occurred and you are now 23 years of age and so still a youthful offender.
5. Thirdly, I have taken into account that your time on remand has been your first substantial period of confinement and that much of it has been served under a 21 hour per day lockdown, and that you found the prison environment difficult. Your difficulties in this regard are carefully analysed in the psychiatric report of Dr Zimmerman.[3] He made a diagnosis of a major depressive disorder and methylamphetamine dependence.
6. Dr Zimmerman's reports recorded a significant apprehension of the risk incarceration poses for you, given your persistent thoughts of death and your background that includes the loss of family members whilst in custody.
7. I have taken into account your background and personal circumstances and these are set out in considerable detail in Dr Zimmerman's report. Your family circumstances have been somewhat chaotic, deprived to a degree, and have exposed you to substance abuse and violence from a young age. Shortly summarised, your parents separated when you were between the ages of five and ten. In your presence, your father was often violent to your mother and on one occasion threw her through a glass door as you looked on. Your mother in turn was violent towards you and regularly beat you with a spoon. You were one of a sibship of four, the youngest dying when she was an infant. After separation, your mother formed a number of other relationships and you still have contact with some of your step-fathers. After he separated from your mother, your father had another six children and so you have six half brothers and sisters, all of them aged under 12.
8. You attended school in Horsham until Year 10. Your history of substance abuse is unfortunately familiar in these courts. At various times you have been dependent on cannabis, heroin and methylamphetamine. You diminished your consumption of alcohol because at a very early age it was discovered that you had already managed to damage your liver. It is perhaps a measure of the difficulty you encountered in your background that your own father on learning that you were smoking methylamphetamine, taught you how to inject it.
9. You left home at the age of 16 and have rarely had stable accommodation since that time, although I am informed that your relationship with your mother is now such that if released you could reside with her. Your grandmother has visited you in prison but only in relatively recent times. Your mother telephones, and you are in written communication with your father who is himself incarcerated.

1. As to the circumstances of your offending, counsel on your behalf submitted that your moral culpability for it should be moderated for a number of reasons. First, because your only significant long-term relationship with another woman had ended with her cheating on you and then leaving you whilst you were away and without any further explanation or contact. This was said, in some way, to explain your reaction to the rejection by Ms Kelly.
2. Secondly, it was submitted that you were in all likelihood then suffering from the depression more recently diagnosed and from methylamphetamine addiction. It was submitted that you had consumed a good deal of methylamphetamine at the time of each of the occasions on which these offences occurred. This, of course, is a difficult submission, as I do not regard the fact the violence involved in these offences was fuelled in significant part by methylamphetamine as a matter in mitigation.
3. Third, counsel relied on the observations of the High Court in Bugmy,[4] particularly at paragraphs 42 to 44, although acknowledging that any moderation of moral culpability because of the lasting effects of your background had to be balanced against the need for protection of the community in circumstances where your offending has been persistent.
4. Fourthly, on your behalf, and by reference to Dr Zimmerman's reports, it was submitted that your time in custody will be more burdensome for you because of your major depressive condition. A submission made in this case with more force than is often the case because it is based on Dr Zimmerman's analysis of your reaction to your time on remand and the effects that it has had, and may well have, on your mental health. I have noted Dr Zimmerman's particular concerns about the effect of long periods of lockdown on your already worrying suicidal ideation. All the more concerning seems to be the fact that you have had no mental health treatment since incarceration, whether by counselling or medication. I have taken these matters into account also.

1. Ultimately counsel submitted that the time you have already served, combined with a CCO, with treatment and rehabilitation conditions and community work would meet all relevant sentencing principles. On the Director's behalf, such a course was opposed on the principal ground that three earlier CCO's had failed to alter your behaviour in any significant way. It was submitted that a more powerful incentive for compliance would be found in supervision by the Parole Board of conditions upon which it might grant you parole. Both submissions have some attraction. It does seem to me that now you have considerable and firsthand experience of prison life. I would like to assume, (although in these times must have some reservations about this) that it has been your first experience for many years of a sustained period of forced detoxification. Although I was worried by your past non-compliance, I maintained some hope that a CCO might be approached with a considerably improved attitude on your part and to this end, I ordered a presentence report and adjourned the matter.
2. The CCO assessment outcome report prepared by Casey Chapman, dated 4 August 2016, has been received and is Exhibit 8. Unsurprisingly, the author had reservations about your suitability to participate in such an order, having regard to your complete failure to engage with the conditions of three earlier order and because they assessed you as being at high risk of reoffending. Nevertheless, the author felt you would benefit from supervision, that you would be able to undertake community work, that a treatment and rehabilitation condition concerning your substance abuse would enable assessment, perhaps inpatient rehabilitation, and that you would benefit from psychiatric treatment and offending behaviour programs.
3. In further submissions your counsel informed me that you had instructed her that on this occasion, your attitude to such an order would be different as you have changed your attitude during your time on remand.
4. Against the matters to be taken into account in mitigation of penalty must be the fact that as the maximum penalties imposed by Parliament shows, these are serious offences. The false imprisonment was sustained and accompanied by violence and must have been terrifying for the victim. Given your history, I have no doubt that Mr Sinclair feared that you would carry out your threat to kill him and in the end it is only a matter of good fortune and quick thinking by a neighbour that the fire you set in Ms Sinclair's car did not spread to adjacent buildings.
5. Given your long history of offending, specific deterrence must be given weight in the sentencing consideration, as must general deterrence in circumstances where drug fuelled violent offending is prevalent in our community. Moreover I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and otherwise to impose just punishment.
6. In the end, though with some reservation, I have determined that it is appropriate to impose a term of imprisonment followed by a CCO with conditions for a period of two years.
7. Mr Secombe, I have taken into account all the matters raised by your counsel on the plea and all relevant sentencing principles in arriving at the sentence I am about to impose. On Charge 1, threat to kill, you are convicted and sentenced to three months' imprisonment. On Charge 2, false imprisonment, you are convicted and sentenced to six months' imprisonment. On Charge 3, common assault, you are convicted and sentenced to three months' imprisonment. On Charge 4, arson, you are convicted and sentenced to eight months' imprisonment. On each of Charges 5 and 6, you are convicted and sentenced to one month imprisonment. Taking the eight months on Charge 4 as a base, I direct that one month of the sentence imposed on Charge 1, two months of the sentence imposed upon Charge 2 and one month of the sentence imposed upon Charge 3, be served cumulatively upon each other and upon the sentence imposed upon Charge 4. All other sentences are to be served concurrently. That makes a total effective sentence of 12 months' imprisonment and upon your release on all charges you are sentenced to a Community Corrections Order for a period of two years, with conditions of supervision, treatment and rehabilitation.
8. I am obliged to explain to you the operation of the CCO. As I have said, on all the charges you are sentenced to a CCO for a period of two years. You need to understand what it means and what may happen if you breach the order in any way.
9. There are a number of core conditions that apply to a CCO:
   • You must not commit, whether in or outside Victoria during the period of the order an offence punishable by imprisonment. If you do, you will be in breach of the order.
   • You must report to and receive visits from the Secretary to the Department of Justice or his or her nominee during the period of the order, that is 2 years.
   • You must report to the Community Corrections Centre at Horsham within two clear days after you are released from custody. If you do not, you will be in breach of the order.
   • You must not leave Victoria except with the permission of the Secretary to the Department of Justice or his or her nominee.
   • You must comply with any direction given by the Secretary that is necessary for the Secretary to ensure your compliance.

1. There are a number of additional conditions that apply to you:
   • As you will have already served a term of imprisonment of 12 months', I have not imposed any hours of unpaid community work.
   • You must be under the supervision of a community corrections officer for a period of two years.
   • You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager.
   • You must undergo assessment and treatment including testing at a residential facility for withdrawal from or rehabilitation for drug abuse or dependency, as directed by the regional manager.
   • You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.
   • You must participate in programs and or courses that address factors relating to the offending as directed by the regional manager.
2. I can only impose a CCO if you agree to such an order being imposed and in a moment I will get your counsel to approach the dock with the CCO and explain it to you further.
3. If you contravene or breach this order by committing further offences you can be charged and sentenced to a term of imprisonment for the breach.
4. You can also be resentenced for the offences that are before me. In other words, I would resentence you on the charges that are currently before me and could in that circumstance sentence you to a further term of imprisonment.
5. I have to advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a community corrections officer as part of this order, you can also be fined.
6. I have made the ancillary orders that have been handed up. I will make a declaration that your presentence detention is 244 days. I state, pursuant to s.6AAA of the Sentencing Act had you been found guilty of these offences after a trial, I would have sentenced you to a term of imprisonment of four years, with a non-parole period of two years and six months.
7. I will hand down the order, Ms Burnnard, would you approach the dock and get your client to sign it and make sure he understands it please?
8. MS BURNNARD: Yes. Your Honour, I might raise two brief matters at a convenient time?
9. HIS HONOUR: Yes.
10. MS BURNNARD: The first of those is Your Honour indicated during Your Honour's recitation of the facts that Mr Secombe forced Ms Kelly into the flat, shut the door behind her and removed her keys, that certainly is not on my copy of the Crown opening. I wonder if perhaps that's come from an earlier version that's on the court file. But Mr Secombe needs to be sentenced on the basis in paragraph 6 of the opening, "He arrived, Ms Kelly stood at the front door, she told him to get what he wanted and leave. He went inside to the bedroom and then sat in the lounge room. She asked him to leave and he refused and then argument then developed" and then he grabbed her, pushed her, remove the keys. So they were already in the house, he is not to be sentenced on the basis that he pushed her in.
11. HIS HONOUR: Yes, I follow that. I perhaps misdescribed that. It does not, in my view affect the gravity of the offending in any way.
12. MS BURNNARD: No, but I just wished to make that clear. Your Honour also indicated that Mr Secombe refused to get out of the car when Ms Kelly drove him home. Again, that's not in the opening, she didn't make a victim impact statement, I am not clear where Your Honour has got that information from.
13. HIS HONOUR: Well I am reasonably confident I did not make it up, where did that come from?
14. MR O'DOHERTY: I don't know, Your Honour, just
15. HIS HONOUR: It is in the deps, isn't it?
16. MS BURNNARD: It may have come from the depositional material and if that's the case, so be it, but I just noted that I had not - the plea had not been conducted on that basis.
17. HIS HONOUR: Yes, again, that was the end of the offending -the offending was over by then, wasn't it? She had driven him home.
18. MS BURNNARD: Yes, that's right.
19. HIS HONOUR: So it is a background factor of not much consequence.
20. MS BURNNARD: I don't think anything turns on it but I was obliged to raise it for the sake of accuracy.
21. HIS HONOUR: Yes, the forcing into the house I got from page 65 of the deps, I did read her statement. The other matter you raised came from paragraph 16 of the same statement. But neither are of any event. The false imprisonment occurred for the time that it did and the way that it did. I do not think it alters the culpability of his actions at all if I sentence him on the basis that (indistinct) rather than the statement that I have read. Were there any other matters or further orders sought?
22. MR O'DOHERTY: No, Your Honour, no, Your Honour.
23. HIS HONOUR: Consequential orders have been made.
24. MS BURNNARD: As Your Honour pleases.
25. HIS HONOUR: Yes, could you remove the prisoner, please?
26. (At this stage the court proceeded with another matter.)

[3] Exhibit 4 dated 22 June 2016 and exhibit 5 dated 28 July 2016.

[4] Bugmy v The Queen [2013] HCA 37.