R v Seckold [2005] ACTSC 34 (22 February 2005)

Last Updated: 11 May 2005

R v JOHN ANDREW SECKOLD [2005] ACTSC 34

(18, 22 February 2005)

EX TEMPORE JUDGMENT

No. SCC 204 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 18, 22 February 2005

IN THE SUPREME COURT OF THE )

) No SCC 204 of 2004

AUSTRALIAN CAPITAL TERRITORY )

R

v

JOHN ANDREW SECKOLD

ORDER

Judge: Crispin J

Date: 18, 22 February 2005

Place: Canberra

THE COURT ORDERS THAT:

1. in relation to the offence of armed robbery, I sentence you to a term of 6 years' imprisonment;

2. in relation to the offence of taking the motor vehicle, YXN 032, on 27 October 2003, I sentence you to a term of 18 months' imprisonment;

3. in relation to the offence of taking the motor vehicle, YTQ 201, on 31 October 2003, I sentence you to a term of 18 months' imprisonment;

4. in relation to the offence of attempting to steal a purse from Ms Zang on 1 November 2003, I sentence you to a period of 6 months' imprisonment;

5. in relation to the offence of attempting to steal a handbag from Ms Sayer, I impose a sentence of 6 months' imprisonment;

6. in relation to the offence of aiding and abetting a theft of Ms Boponus, I impose a sentence of 6 months' imprisonment;

7. in relation to the theft of Mr Hull I impose a sentence of 6 months' imprisonment;

8. in relation to the offence of taking and using the motor vehicle, YAU 12T, on 2 November 2003, I impose a sentence of 18 months' imprisonment;

9. in relation to the offence of taking and using the motor vehicle, QEH 145, I impose a sentence of 18 months' imprisonment;

10. in relation to the offence of unlawful riding in the motor vehicle, YPW 832 knowing that it was stolen, I impose a sentence of 18 months' imprisonment;

11. in relation to the offence of attempting to steal a handbag from Ms Butler, I impose a sentence of 6 months' imprisonment;

12. in relation to the offence of taking and using a motor vehicle, YBZ 06F, I impose a sentence of 18 months' imprisonment;

13. in relation to the offence of burglary on 6 November 2003, I impose a sentence of 3 years' imprisonment;

14. the sentence for the 13^th offence is to commence 3 years and 2 months after commencement of the 1^st offence;

15. the sentence for the 2nd offence is to commence 4 years and 10 months after the commencement of the sentence for the 1^st offence;

16. the sentence for the 3rd offence is to commence 5 years after the sentence for the 1^st offence;

17. the sentence for the 8th offence is to commence 5 years and 2 months after the sentence for the 1^st offence;

18. the sentence for the 9th offence is to commence 5 years and 4 months after the sentence for the 1^st offence;

19. the sentence for the 12th offence is to commence 5 years and 6 months after the sentence for the 1^st offence;

20. the sentence for the 10th offence is to commence 7 months after the commencement of the sentence for the 12^th offence;

21. the sentence for the 4th offence is to commence 7 months after the commencement of the sentence for the 10^th offence;

22. the sentence for the 5th offence is to commence 8 months after the commencement of the sentence for the 10^th offence;

23. the sentence for the 6th offence is to commence 9 months after the commencement of the sentence for the 10^th offence;

24. the sentence for the 7th offence is to commence 10 months after the commencement of the sentence for the 10^th offence;

25. the sentence for the 11th offence is to commence 11 months after the commencement of the sentence for the 10^th offence;

26. that amounts to an effective head sentence of 7 years' and 6 months' imprisonment;

27. all sentences be backdated to 10 March 2004;

28. I take into account the fact of the sentence and non-parole period in Victoria in determining the non-parole period, and fix a non-parole period of 3 years' which I backdate to 10 May 2004. It follows you will be eligible for parole on 10 May 2007;

29. you are convicted of all of the offences to which I have referred.

1. The prisoner has pleaded guilty to a number of offences that were all committed between 27 October 2003 and 6 November 2003. The learned prosecutor at one point described this period of time as involving a spree of criminal behaviour on his part, and the description is not inapposite.

2. On 27 October 2003 he unlawfully took a Ford Laser hatchback, reg no YXN 032, from a car park.

3. On 31 October 2003 he took another vehicle, reg no YTQ 201, from Bunda Street in Canberra.

4. On 1 November 2003 he attempted to steal a purse. An offence of robbery was committed by Ms Warby, who was at the time in a relationship with the accused, involving the production of a knife for the purpose of taking a handbag from the complainant. It should be noted, however, that the prisoner has not been charged with complicity in the robbery and it would be quite inappropriate for me to sentence him on any basis extending beyond the parameters of the offence to which he has pleaded guilty.

5. On 2 November 2003 he attempted to steal a handbag. There was a somewhat similar incident in which Ms Warby again attempted an armed robbery upon another woman. Again, the prisoner has not been charged with the offence of armed robbery, or with any offence involving complicity in armed robbery, but only with attempted theft of a handbag belonging to the woman in question. Similar sentencing constraints therefore apply. On the same day Ms Warby stole a handbag from another complainant and the prisoner has pleaded guilty to aiding and abetting the theft of that handbag. Later, but still on the same day, he stole the sum of $200 from the hand of a man who had just obtained it from an automatic teller machine. Again later that day, he unlawfully took and used a motor vehicle, reg no YAU 12T.

6. On 3 November 2003, he unlawfully rode in yet another motor vehicle, this time reg no YPW 832, knowing that the vehicle had been unlawfully obtained.

7. Later that day he committed an armed robbery upon an elderly man who was selling poppies for Remembrance Day on behalf of Woden RSL Club. At about 7.00 pm that evening the complainant, who was 86 years of age, was selling poppies in the area of the Coles supermarket in Manuka. He was approached by the prisoner who was not known to him at the time and asked him about a bus timetable. He mentioned to the prisoner that he had a heavy moneybag. The prisoner replied by offering the man a lift. The prisoner also said that he would be back in 20 minutes and had to pick up his wife. The prisoner returned in a vehicle with Ms Warby and the pair collected the complainant. They drove him up Flinders Way and then turned onto the road that led to Red Hill. At this stage the complainant pointed out that they were going in the wrong direction. The prisoner did not reply but accelerated, and subsequently stopped the vehicle and got out. He then approached the passenger door carrying a knife that was about 10" or 12" long and demanded that the complainant get out. He then forcibly removed him from the vehicle. The complainant, despite his age, decided that he was not going to give up the money without a fight and a short struggle ensued. The complainant fell to the ground and banged his head on the ground, but responded by attempting to kick the prisoner. There was then a further struggle, during the course of which the complainant fell again and hit his head on the edge of the car. Again he got back up and returned to the fray, attempting to punch the prisoner. The prisoner then got back into the car which still contained the money bag and drove away.

8. On the following day, 4 November 2003, he attempted to steal a handbag. There was a further attempt by Ms Warby to commit a robbery by taking a handbag from another woman but, as with the previous incidents of this kind, the prisoner is not charged with complicity in that offence. Also on that day he unlawfully took and used a vehicle, reg no QEH 145. On the following day he took and used another vehicle, reg no YVZ 06F, and later that day committed a burglary on a residential house in Cook.

9. In addition to the matters to which he has pleaded guilty, the prisoner has asked me to take into account three further offences set out on a schedule pursuant to section 357 of the Crimes Act 1900 (ACT). Those offences are possession of cannabis, driving a vehicle whilst unlicensed to do so and failing to appear in answer to a bail undertaking.

10. It need scarcely be said that this is a catalogue of serious offences. It is, I think, unnecessary to refer in detail to the circumstances relating to most of the offences in question, the very nature of which are relatively clear from the nature of the offence to which he has pleaded guilty. It is, however, appropriate to refer to the fact that offences of armed robbery are particularly serious offences, because they not only involve depriving people of their money, but placing them in a position of danger and fear. Many victims of armed robbery experience emotional trauma for a very long period after the event.

11. The reality of this consideration has been demonstrated in the present case by a victim impact statement prepared by the elderly man, who, despite his obvious courage, has clearly suffered considerably. The statement reads in part:

On the day that the people drove me to the Red Hill Lookout I thought they had a gun and was going to kill me, because I had in mind the old man who was killed at the post office robbery in Latham sometime before. I was frightened for my life on this day and still feel the people would come to my house and kill me.

Since the day I was robbed I've been very upset and have sleepless nights and nightmares. I am told by my wife that I wake screaming, shaking and kicking. She also says that I've become very aggressive and emotional. My wife is also frightened of these people who have robbed me. She is very upset, as I am also very upset. Since this day I feel very nervous and anxious. I have never experienced these feelings before. I see the day very clearly in my mind over and over, especially at night, and sometimes through the day.

On this day, other than the poppies and money, I lost my personal bag, vest, jumper and glasses, which left me with no vision. My trousers were torn when the man dragged me from the car. I feel that my health has deteriorated greatly since this day; I now have breathing difficulties when I get upset. I am a man of 87 years old, why people would hurt me or take the money that I have collected for the RSL I do not understand."

12. As the learned Crown prosecutor has properly emphasised in the course of his submissions, there are a number of different and sometimes competing factors that must be taken into account in sentencing an offender. Quite obviously those considerations include the need to denounce the commission of the offence and the need to ensure that the sentence is sufficiently severe for the purposes of both general and personal deterrence. The objective of the criminal law is, after all, primarily to ensure the protection of the community from criminal behaviour.

13. However, they are not the only considerations. I am also required to take into account the subjective circumstances of an offender and such important considerations as the prospects of rehabilitation. Which of the competing considerations will assume priority in any given case depends very much upon the circumstances revealed by the evidence.

14. In the present case the evidence reveals that the prisoner had an extremely difficult childhood. His father left the family home when the prisoner was only 10 months old. His mother subsequently formally separated from his natural father and remarried. The prisoner told the Parole & Probation officer that his stepfather was physically and mentally abusive towards him and his siblings. When his mother suffered a nervous breakdown due to ongoing social and personal stress he was placed in Marymead in an attempt to stabilise his lifestyle. At the age of six he was sexually assaulted by a relative and this apparently led to him developing difficulties in relation to anger management and personal esteem. During his adolescent and teenage years he returned home on occasions but spent the majority of this period living in refuges, at other people's homes or on the street. One of his siblings died when he was 16 years old and a second sibling committed suicide in 1996 when he would have been about 18.

15. His mother reported that after this second death the offender "went off the rails". He entered into his first serious relationship at the age of 16, and this relationship resulted in the birth of a child. He separated from the mother of the child when he was 23 due to his incarceration and has reported that he maintains contact with both the child and his ex-partner, both of whom reside in Western Australia. He hopes in time to gain more access to the child.

16. His mother has confirmed to the probation officer that should the prisoner be released her home would be available to him. She stated that no drugs, in any form, were allowed in her home and that she and her current partner and the prisoner enjoyed a good relationship. She indicated that she was aware of the prisoner's dependency upon illicit drugs, and agreed that he required intensive and supporting counselling to address this recurring pattern of dependence.

17. The prisoner has a poor employment record, though it seems that upon his release from prison in 2002 he was able to secure an apprenticeship as a painter and decorator. He said in his evidence, and I accept, that upon his release from prison he bought one dose of heroin but then decided not to use it because at that time he did not want to go back to jail. He then remained drug free for a period of 12 to 13 months, and it was during that period that he completed the first year of his apprenticeship. Insofar as one can confirm that evidence by access to his record, I must say that the account appears credible.

18. He said in his evidence, and again this part of his evidence was not effectively challenged in cross-examination, that he also cut off contact with his former friends, all of whom had been drug users, in an attempt to stay away from drugs. Sadly however, that step left him lonely and consequently vulnerable to the negative emotions that had earlier induced him to take drugs.

19. A psychologist, Mr Ian Gotch, has provided a helpful report that refers to the background to which I have already referred, and mentions that the prisoner had reported intermittent problems with asthma and spondylitis. He also reported having acquired Hepatitis C as a consequence of being stabbed in jail, and has said that this causes him symptoms of tiredness and feeling generally run down. Whilst in the Belconnen Remand Centre he has managed his Hepatitis with multivitamins.

20. Significantly, the prisoner reported having depression all of his life and anxiety attacks since first in jail. He reported first identifying his depression due to thoughts of self-harm and said that it tends to be "really bad when things were not going for him" and, "when he was left on his own with his head thinking too much". He described particular periods of depression relating to his upbringing, his separation from his daughter and her mother, and stated that the only times he felt free from depression was while using his drugs, which he reported takes away his emotions and feelings.

21. These statements to the psychologist were confirmed in his evidence before me when the prisoner explained that he first used heroin at the age of about 15, and found that it was like "walking on clouds". His problems seemed to disappear - it took away his emotions. Having regard to all of the evidence on this issue, it seems to me clear that this is a young man who initially resorted to heroin in order to cope with the pain in his life as a result of the quite terrible experiences he had as a child.

22. The pre-sentence report includes a statement to the effect that the prisoner said that he had never been diagnosed with a psychological condition, and hence never received any form of structured counselling or therapy, but that he hears a voice on a regular basis. The "voice" often tells him to do what he described as drug-related stuff and manifests itself, at times, to such a point that he finds himself talking to himself and suffering from disturbed sleeping patterns.

23. Mr Gotch in his report refers to the fact that the prisoner told him that he was unable to recall all the details of the offences, as he was intoxicated by methamphetamine at the time, and had stated that he had "lost control, used some Ice. Lost 2 weeks of my life". He stated that he could remember doing a robbery but stated that he was not armed, but rather holding a set of keys in his hand. He said that after first using methamphetamine prior to the offences it "did something to his head, messed his head up, and that he was talking funny, not able to think straight, paranoid, seeing things, monsters and ghosts, police when police weren't there".

24. Mr Gotch concluded that it was best to understand the prisoner's psychological state as a major depressive disorder, recurrent with the specifier of being in partial remission. He noted that some concern had been expressed about the fact that the prisoner had reported hearing voices and noted that whilst in prison the prisoner had been prescribed an antidepressant, but that this had made the voices worse.

25. Mr Gotch said that no diagnosis was apparent from his consultations at Goulburn, but that based on what the prisoner had reported to him during the period of his assessment, he was inclined to think that the prisoner's description of the voices was more consistent with the negative thoughts consistent with a depressed mood. He also said that the prisoner did not report any symptoms of psychosis.

26. He reported that the prisoner was subjected to a personal assessment inventory test and that the results of that test indicated that the prisoner responded consistently to the items and did not attempt to portray an overly positive impression of himself. On the other hand, his score on the negative impression scale was extreme and suggested that he attempted to portray himself in an especially negative manner.

27. Mr Gotch concluded that, given the pattern of drug use, he believed that the prisoner's substance dependence was best understood as an unbroken continuum since he first began using marijuana at about 13 years of age. He said that the prisoner also describes a history of depressed mood, such that he believes he meets a diagnosis of a major depressive disorder. Based on the report, he was not at risk of self-harm, but should be monitored in the future.

28. The prisoner has an extensive record for criminal offences, going back to May 1993, and including a conviction for robbery using force on a person in July 1996. He was taken into custody in Victoria on 9 November 2003 and on the following day pleaded guilty to three counts of robbery, one count of bringing stolen goods into Victoria and one count of heroin. As a result of his plea of guilty to these charges he was sentenced, in aggregate, to 12 months' imprisonment and a non-parole period of 6 months was fixed. He was taken into custody upon the expiration of the 6-month term of the non-parole period, and has been in custody in relation to the present charges ever since.

29. I am obliged to take into account that he has pleaded guilty at the first opportunity, both in Victoria and in this court. A plea of guilty is important, not merely because it provides some evidence of remorse, but also because it saves the community the time and expense of a trial and it saves complainants, such as the elderly man to whom I have referred, the trauma of having to come into court and relive the incidents in question. Accordingly, this is a matter that should be given considerable weight.

30. The sentencing of the prisoner is also complicated by the fact that he has previously been sentenced in Victoria. The approach that should be taken in sentencing somebody who has already been dealt with in another jurisdiction for offences committed at about the same time was the subject of some comments by the High Court of Australia in Mill v. R (1988) 166 CLR 59 where the court said at p 66 that the proper approach which the judge should have taken in that case would have been to have asked what would have been likely to have been the effective head sentence imposed if the offender had committed all of the offences in one jurisdiction and been sentenced at the one time.

31. Whilst it is not within my power to backdate sentences to the date on which sentences were imposed in another state, it does appear to be appropriate that I take that into account and notionally adjust the sentences to reflect it.

32. A further consideration is what is referred to as the `totality principle'. That principle provides that whilst the penalty that may be appropriate for any one of a large number of offences may give rise to a consequence that if those sentences were to be added together they would result in a very substantial period of imprisonment, it may nonetheless be appropriate to look at the overall effect of the sentences and to scale them back, so that the totality of the punishment involved will be reasonably commensurate with the overall course of criminal conduct.

33. In the case of R v Meyboom [2001] (unreported 16 May 2001, 10 July 2001) FCA 861, a Full Court of the Federal Court of Australia had to consider a situation in which a number of offences had been committed by a drug-dependent person. Whilst referring to the other sentencing considerations that must be taken into account, their Honours said, at 52:

It is now clear that in the Australian Capital Territory drug addiction is a motivating factor in commission of offences of all kinds may, especially depending upon the circumstances of the offender when the addiction was contracted, be a matter mitigating the degree of criminality.

34. Their Honours referred to an earlier decision of R v Blaskovic [1999] FCA 1306 (16 September 1999) in which Madgwick J had said that:

The better view, in my opinion, and one which appears to be gaining increasing respect, is that attention needs to be paid to all the circumstances of the initial choice to use the drug until addiction developed and the continuing choices not to quit, or to recommence, drug use. Those circumstances will include age, any disadvantage in emotional or intellectual development, any intellectual impairment, any significantly deprived cultural background for which the offender was not responsible and so on; in short, the sorts of matters which courts daily regard as directly and appropriately mitigating, to a greater or lesser degree, the severity of a sentence.

35. The court in Meyboom went on to say:

A sentencing judge always has a delicate balancing task to perform, taking into account the demands of the community for retribution, deterrence, both general and specific, and the interests of the same community in the rehabilitation of the offender. The exercise may call for an examination of the circumstances that led the offender to drug use, addiction and crime. All the circumstances that precipitate the use of drugs are relevant to the evaluation of moral culpability that is essential to the sentencing process.

These remarks are, of course, particularly apposite to the present case.

36. I take into account the pleas of guilty. I take into account the fact that this was, as Mr Gill who appeared on the prisoner's behalf submitted, a case in which a young man had initially turned to drugs because he was seeking an anodyne to the pain caused by appalling experiences as a very young child.

37. I take into account the fact that there is evidence that he has from time to time made several attempts at detoxification and rehabilitation and, indeed, that he has had some success, though it was not substantially sustained beyond a period of 12 to 13 months.

38. I also take into account the fact that in pursuing rehabilitation he did go to the extent of cutting off his old friends, and that that left him vulnerable to the influence of someone like Ms Warby whom he apparently met at the end of the 12 to 13-month period to which I have referred. Whilst he was aware that she had used drugs in the past, he understood that she was on a methadone program and thought, initially, that she would not be a cause of temptation relating to drugs.

39. He gave evidence before me to the effect that he was horrified at the offences he committed, and was genuinely remorseful. I accept that evidence. He also has indicated that he is motivated to undertake rehabilitation, and I accept that he is, although the author of the pre-sentence report expresses the opinion that, for the time being at least, he is at high risk of re-offending. That comment is qualified by the following passage:

The offender has commenced addressing his addiction whilst in remand, and has displayed insight into his offending behaviour. The primary concern of this Service still lies with the rapid escalation and severity of his criminal conduct when relapsing into the use of drugs. If Mr Seckold remained completely abstinent from illicit substances and adopted pro-social attitudes like those displayed during his most recent period of supervision, this risk should begin to reduce over time.

40. Having regard to all of these factors, it seems to me that I should take a course which will involve the imposition of head sentences sufficient to mark the gravity of the offences which he has committed, and sufficient to indicate to other like-minded people that these are serious offences and that they will attract substantial penalties.

41. On the other hand, it seems to me that having regard to the subjective factors to which I have referred it would be appropriate not only to take into account the period already served in Victoria in relation to other offences committed apparently as an extension of the same criminal spree, but also the prospects of rehabilitation and the other factors to which I have referred.

42. Would you stand please, Mr Seckold? In relation to the offence of armed robbery, I sentence you to a term of 6 years' imprisonment, that term being scaled back from the term of 6½ years that I would have otherwise imposed, had it not been for the time you spent in custody in Victoria as a consequence of the sentence you received down there.

43. In relation to the offence of taking a motor vehicle, YXN 032, on 27 October 2003, I sentence you to a term of 18 months' imprisonment.

44. Similarly, in relation to the offence of taking the motor vehicle, YTQ 201, on 31 October 2003, I sentence you to a term of 18 months' imprisonment.

45. In relation to the offence of attempting to steal a purse from Ms Zang on 1 November 2003, I sentence you to a period of 6 months' imprisonment.

46. In relation to the offence of attempting to steal a handbag from Ms Sayer, likewise I impose a sentence of 6 months' imprisonment.

47. In relation to the offence of aiding and abetting a theft of Ms Boponus, I impose a sentence of 6 months' imprisonment.

48. In relation to the theft of Mr Hull I impose a sentence of 6 months' imprisonment.

49. In relation to the offence of taking and using a motor vehicle, YAU 12T, on 2 November 2003, I impose a sentence of 18 months' imprisonment.

50. In relation to the offence of attempting to steal a handbag from Ms Butler, I impose a sentence of 6 months' imprisonment.

51. In relation to the offence of taking and using a motor vehicle, YBZ 06F, I impose a sentence of 18 months' imprisonment.

52. In relation to the offence of burglary on 6 November 2003, I impose a sentence of 3 years' imprisonment.

53. (His Honour then made orders for the partial accumulation of various sentences and indicated that he had taken into account the offences on the schedule in setting the sentence for the offence of armed robbery.)

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 28 April 2005

Counsel for the Crown: Mr J Lundy

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the prisoner: Mr S Gill

Date of hearing 18, 22 February 2005

Date of judgment 18, 22 February 2005