Director of Public Prosecutions v Rae

[2017] VCC 508

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01406

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN JAMES RAE

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JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2017
DATE OF SENTENCE:	4 May 2017
CASE MAY BE CITED AS:	DPP v Rae
MEDIUM NEUTRAL CITATION:	[2017] VCC 508

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:              Sentence – Common Law Assault x 2
Legislation Cited:     Sentencing Act 1991
Cases Cited:

Sentence:Convicted and sentenced to nine months’ imprisonment and a twelve month Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hammill	Solicitor for the Office of Public Prosecutions
For the Accused	Mr S. Devlin	Giorgianni Liang Lawyers

HIS HONOUR:

1In this matter Mr Adrian James Rae has been found guilty of two counts of common assault by a jury verdict taken on 18 March 2017.  He was acquitted of a charge of aggravated burglary and alternatively, burglary, relating to the same date.

2The offences occurred on 7 April 2015 at 1 Bondi Road, Bonbeach, which was jointly occupied by the complainants, Mr Andrew Ingram and Patricia Lukidis.  The circumstances of offending were that you, Mr Rae, knew Mr Ingram for a period of some 15 years.  Some months prior to 7 April 2015 there had been a falling out between the two of you and it is common ground that on the latter date you attended at the above premises in the evening and you entered the backyard of the property as a trespasser.

3Ostensibly you were there to recover a bike which it is common ground was somewhere at the property and you were the proprietor of the bike.  Consistent with the jury verdict you were situated in the alcove outside the back door leading to the kitchen when the assaults commenced.

4Mr Andrew Ingram had intended to leave the kitchen through the back door in order to smoke a cigarette.  As he opened the door he saw you with your arm raised with an instrument in your arm that glistened in the night.  The object at that time was unidentified.

5He opened and shut the door up to three occasions and on one of those occasions I am satisfied beyond reasonable doubt that you struck a blow to the kitchen door such with an instrument, probably a knife, that had the effect of penetrating the wooden door.  I make no finding with respect to the security door other than to note that there were competing versions as to how and when that had been penetrated.

6Thereafter Mr Ingram chose to open the door and confront you and a tussle ensued at which time Mr Ingram states on one occasion he received a knife wound to his finger.  I cannot be satisfied beyond reasonable doubt that he did receive a knife wound to his finger as a result of the knife because there is a record of him having told a police officer shortly after the incident that he had in fact injured his finger on the security door.

7In any event, you fled through the backyard and over the back fence, leaving objects along the way which assisted in identifying you as the trespasser.  The second complainant, Ms Lukidis, witnessed the assault on Mr Ingram whilst she was standing in the kitchen.  Although she gave evidence that you had physically entered the kitchen in pursuit of Mr Ingram it is clear that the jury were not so satisfied as they acquitted you of aggravated burglary and the alternative charge of burglary.

8In any event, she was sufficiently in fear for her own safety that the jury found that she was assaulted by you.  In her victim impact statement dated 24 May 2016 she states that as a result of the assault her world completely turned upside down.  She was a 37 year old woman full of confidence, strong, independent and motivated.

9She was naturally friendly, trusting, kind and outgoing, but this violent incident in her own home had stripped her of everything that she knew and left her as a shell of the person she used to be.  She says she was not able to work for weeks after the incident and struggled even then to return to work, but she pushed herself to get back to work just so that she could find some normality in her life.

10She says that she has terrible dreams and nightmares and she would wake up sweating and sometimes crying.  She sometimes gets flashbacks as to that particular evening.  The flashbacks come flooding back every time she approaches her back door for fear of someone being there.

11She has sought the help of a psychologist who is helping her work through her feelings.  She says that for some months after the incident she struggled to socialise and she could not go out in public places at all.  She says that she has transferred from an extroverted, happy, positive and motivated person into someone who had become very subdued. 

12She also says that this incident was one of the factors causing the break-up of her relationship with Mr Ingram.  She says that she never thought that something like this would happen to her and that night she feared for her life and she feels that her life would not be the same again.

13That said, it should be indicated that as a result of this incident Mr Ingram himself was not so emotionally affected and in fact took it upon himself to rather than retreat from your assault by locking the door and preventing your entry into the kitchen he chose to confront you in the alcove and in fact effected you pursuing from the scene.

14Your own personal history is that you were born on 8 January 1978 and you were aged 37 at the time of the offending.  You are the second of three children, two sisters aged 42 and 37.  Your instructions are that you had a happy family upbringing, you were educated to Year 8, you left school at 15 to work in your father's business.

15At the age of 19 your father died and this had a great effect on you.  At approximately the ages of 27 to 30 you underwent a plastering apprenticeship and then from the ages of 30 to 36 you were working in the mining in Hunter Valley.  Overall I accept that you have a good work history and I accept that you have a strong desire to return to full time work at some time in the future when you are freed.

16Your drug history I am advised is that you embarked upon intermittent drug use since the age of 19.  You returned to heavy drug use on your return to Melbourne and you concede that you were drug affected at the time of this offending.

17Your counsel has submitted to me, and I accept that from your own subjective point of view your prospects of rehabilitation are good in the sense that "the penny has finally dropped" and that you now "hate ice".

18As I have already indicated, that the jury have not been satisfied beyond reasonable doubt that you entered the kitchen at the time of the assaults, but I am satisfied beyond reasonable doubt that you did have a knife and at the very least it penetrated the door of the kitchen as already indicated.

19Your instructing solicitors have had you assessed by consulting clinical and forensic psychologist, Mr Jeffrey Cummins, and he has made a report dated
6 April 2017.  Part of the history he took which I find is relevant in your case is that he noted your criminal record as at 7 April 2016 contained drug matters and relate that you successfully completed an ICO imposed at Melbourne Magistrates' Court in 2009.

20Consistent with instructions to your counsel on the plea your last residential address is where you have intermittently lived with your girlfriend, a Ms Guarino, who I am told was in court on your plea and I understand is still in court today.  Ms Guarino is aged 40 and you are in an on again/off again relationship for some three years.

21I am told by your counsel that Ms Guarino is prepared to continue the relationship but under strict guidelines with respect to drug taking, although she herself may have occasionally used illicit drugs.

22Mr Cummins has taken the history that your father died at the age of 52 and he has taken the history that you regarded your father as a fantastic role model and that you told Mr Cummins that after your father's death you lost interest in life and turned to illicit drugs.  Your father had never been in trouble with the law and neither had your mother.

23You told Mr Cummins that you are not an identified drug user in gaol.  You did see a psychiatric nurse but you are not getting any mental health treatment.  You are hoping to start horticultural work in the next week.  You have done a 24 hour AOD course and a 60 hour ice effects course and a stress management course, and in fact certificates have been tendered in this matter on your behalf.

24As already indicated, after leaving school you worked with your father for approximately two years at which time your father owned and serviced Coca Cola machines.  Your father then purchased a natural spring water distribution business and you worked in this business until around the age of 22.

25You then did some installation work for Foxtel and then returned to working in a mineral spring water distribution business until the age of 27.  You said, "Well, mum gave me dad's business but I sold it about two years later because I wasn't coping and I was then into drugs."

26However, you did subsequently complete two and a half of a three year plastering apprenticeship and then relocated to the Hunter Valley for a number of years.  At interview with Mr Cummins he says that you spontaneously stated, "Being in gaol has forced me to take stock of my situation.  I accept I went nuts on the drugs.  All of this offending," referring to your current situation, "was fuelled by drugs.  Like at the time I was on ice.  Also I went around to this guy's place [being Mr Ingram] because he stole my bike worth $2500.  I think one of my ex-girlfriends gave it to him.  I still don't know what became of my bike."

27You also stated to him, "Ice is a bad drug and now I hate ice.  I realised the ice turned me loopy."  You advised Mr Cummins that you felt reasonably settled in custody and you were sleeping satisfactorily.  You still however ruminate regarding your father's death and could perhaps benefit from some grief counselling.

28Apparently at interview you apologised regarding your offending and emphasised you did not regard yourself as usually being a violent person and therefore attributed your violent offending to the drug use and drug history.

29On mental state examination Mr Cummins considered you of average intelligence and you were not engaging in any delusional thinking.  You were appropriately oriented in time, place and person.  Mr Cummins considered that you may have a borderline personality disorder but it was not possible to make a definitive statement.

30Interesting enough he does not diagnose any recognisable psychiatric condition as we often see in cases such as these of an adjustment disorder, but not such diagnosis as made in this case.  As to the general sentencing principles that I must engage I must have regard to a range of different factors.

31I must give effect to the principles of deterrence, both general and specific.  I must deter other people from behaving like you and I must deter you from repeating such behaviour though because of your optimism with respect to your prospects of rehabilitation, specific deterrence may carry less weight here.

32I must express the community's denunciation of your conduct and promote your rehabilitation.  I must also have regard to current sentencing practices for offences of this kind you have committed and I must balance your personal circumstances.  With respect to the gravity of the offending I have already stated that Mr Ingram was of the disposition of not only having known you and apparently not in fear of your physically, was prepared to not retreat from the circumstances of the assault but in fact in self-defence of himself and of
Ms Lukidis engaged in a tussle with you in the alcove of the property and then pursued you over the fence.

33The gravity of the offending with respect to Mr Ingram is therefore of lesser moment.  I am not satisfied beyond reasonable doubt as to the exact injuries he may have received in the altercation with you, in particular the finger injury may have been inflicted by contact with the security door and your arm injuries may or may not have been caused as a result of splinters from the door.  But the victim impact statement of Ms Lukidis leads me to conclude that the overall incident was indeed frightening and I accept the effect of this incident upon her in its entirety.

34As to mitigating circumstances and prospects of rehabilitation I note a letter that you have written to the court undated but contains the following statements, "I take full responsibility for my behaviour.  I should have faced the consequences of my actions and gone into the police station to deal with questions that police had for me.  Instead I behaved selfishly and treated the community with a lack of respect.  I lost myself on the drug, ice, ruined my life and ended up in gaol.

35Since my time in gaol I have done a number of self-help courses and made the most of my time whilst being incarcerated.  Now I have a much better understanding of what the drug ice can do and this has done to me.  I do not want anything to do with it again.  I now see the errors which have landed me in my current situation and will take the necessary measures to make sure this does not happen again.”

36As already stated, Mr Cummins views your optimism as perhaps not totally warranted and I would have to say I agree, but as already discussed with your counsel I am encouraged by the fact that you at least have that optimism and the community's interests would certainly be served if you are able to stay true to your present expressed intentions.

37I note the drug assessments whilst you have been in prison dated 24 May 2016, 13 August 2016 and 19 February 2017, which are consistent with your assertions that you have remained drug free and that you have now a completely different attitude to drugs.  I also take favourable notice of the certificates of completion of various activities that you have undertaken in prison and which were the main exhibits in this case.

38The criminal history which has been tendered by consent does disclose a long history of drug related offences, but as pointed out by your counsel it in fact only involves three appearances in court.  The history of your drug use has already been outlined.

39It has been pointed out that some of your prior convictions include possession of prohibited weapons, including a handgun going back to 2009.  This does not augur well for the fact that a knife - my finding with respect to the presence of a knife on this occasion.  However, I do note that although you were in possession of such weapons there has been no prior conviction for use or attempted use of them in furtherance of a crime.

40I am prepared to infer therefore that you were in possession of those weapons in connection with your drug use and involvement and perhaps were used for self-protection rather than for aggression, there being no suggestion that you had used them aggressively.

41Further, particularly because of the impact upon Ms Lukidis, and despite the bravado of Mr Ingram, in my view the presence of the knife and the effect on Ms Lukidis in particular, means that a gaol sentence is appropriate and that a community based order by itself would not be appropriate.

42I also consider that pursuant to s.9 of the Sentencing Act that it would be appropriate to order an aggregate sentence.  It is incumbent upon me to explain to you what that means and that in effect what it means is that rather than give you a separate sentence for the assault on Mr Ingram and a separate sentence for the assault on Ms Lukidis, the reasons why I consider that you should receive just the one sentence for the combined assaults is because in my view the assaults are founded on the same facts or form part of a series of offences that occurred that night within close proximity of each other, that is that the presence of the knife and the aggression shown by you had the effect of assaulting both the complainants.

43Therefore I consider that it is appropriate that I impose the one aggregate sentence or the one gaol sentence to explain to you, rather than two separate sentences.  In all the circumstances I propose to sentence you on the two assault charges to an aggregate sentence of nine months' imprisonment and if you are willing to do so to be followed upon your eventual release from gaol of a 12 month community based order with certain conditions that have been mainly the subject of a pre-sentence report.

44It is my intention, and I will hand down a draft copy of the sentence to your counsel in a moment, but it is my intention that on Charges 2 and 3 of common law assault that you be convicted and sentence to nine months' imprisonment as an aggregate sentence and I direct that that aggregate sentence in so far as it is necessary should be served concurrently.

45The total effective sentence is nine months' imprisonment.  I further declare that the period that you have already been in custody in respect of these offences is 270 days and that be reckoned as a period of imprisonment already served under this sentence which is to be deducted administratively.

46Further, on Charges 2 and 3 of the common law assaults you are convicted and ordered to serve a community corrections order for a period of 12 months.  The order commences upon completion of imprisonment or a detention of your term and ends in 12 months from that date.

47You must attend at Werribee Community Correctional Services within two clear working days upon completion of your imprisonment or detention term and in addition to the mandatory terms, supervision.  You must be under the supervision of a community corrections officer for a  period of 12 months.

48You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager and you must participate in programs and/or courses that address factors relating to your offending behaviour as directed by the regional manager.

49The commencement of the community corrections order is to commence upon the completion of all state sentences that you are ordered to serve and upon your release from custody.  With consent I order that the property referred to in the schedules in the forfeiture orders be placed in the custody of the Chief Commissioner of Police and be held until 28 days from this date or the conclusion of any appeal proceedings and then to be destroyed.

50Those items in the schedule are a jacket containing a small torch, a dog collar restraint and an orange ratchet strap wrapped in black electrical tape.  I will hand down the copies of the orders and the CCO for inspection by counsel to see if there is any suggestions or errors that I may have made.

51MS HAMMILL:  Just to clarify, Your Honour, the conditions in addition to the management conditions that Your Honour was intending are supervision, drug treatment and programs to address re-offending?

52HIS HONOUR:  Yes.

53MS HAMMILL:  Not mental health?

54HIS HONOUR:  Yes.  If I wanted mental health - you say the factors relating to the offending behaviour is not explicit enough, it should include mental health?

55MS HAMMILL:  It is normally a separate condition, Your Honour.

56HIS HONOUR:  Yes.  What do you say, Mr Devlin?

57MR DEVLIN:  Your Honour, can I just approach my client?

58HIS HONOUR:  Yes, certainly.

59MR DEVLIN:  Your Honour, if Your Honour thought a mental health condition was appropriate there is no objection to it.  Just to put on the transcript the reason why, Your Honour initially made a comment in relation to Mr Cummins' report about the possibility of a personality disorder.  It would put to bed that or it would, if it was something there it could be further assessed.

60HIS HONOUR:  Could be addressed.

61MR DEVLIN:  In those circumstances it is not opposed.

62HIS HONOUR:  Thank you.  I am grateful to both of you for pointing that out.  I think my associate is just getting a proposed draft and I will let you have a look at that and I will add that if you both agree.

63MR DEVLIN:  Thank you, sir.  May I approach my client?

64HIS HONOUR:  Yes.

65MR DEVLIN:  Thank you for that time, Your Honour.  I have explained the conditions to Mr Rae and Your Honour will make an enquiry but I can advise Your Honour my instructions are that he is grateful and he is prepared to sign the community correction order as proposed.

66HIS HONOUR:  Yes, thank you.  Anything further?

67MR DEVLIN:  No, Your Honour.

68HIS HONOUR:  You may remove the prisoner, thank you.

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