Director of Public Prosecutions v Raine

[2013] VCC 2083

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02006

DIRECTOR OF PUBLIC PROSECUTIONS

v

REBECCA RAINE

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 December 2013
CASE MAY BE CITED AS:	DPP v Raine
MEDIUM NEUTRAL CITATION:	[2013] VCC 2083

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Jones
For the Accused	Mr Docherty

HIS HONOUR:

1Rebecca Raine, yesterday you pleaded guilty to four charges arising from criminal activity by you on 25 November 2012.  The charges were:

1.  Charge 1, aggravated burglary of the premises at 90 Gingell Street, Castlemaine.  This offence has a maximum penalty of 25 years imprisonment. 

2.  Charge 2, intentionally causing injury to Wayne Middlemiss.  This offence has a maximum penalty of ten years imprisonment. 

3.  Charge 3, recklessly cause injury to Wayne Middlemiss, this offence has a maximum penalty of five years imprisonment. 

4.  Charge 4, criminal damage to the property belonging to Wayne Middlemiss and that offence has a maximum penalty of ten years imprisonment.

2You have admitted to 14 prior court appearances and 29 offences.  The prior offending by you commences in January 2001 and extended until 17 August 2012.  At your final prior court appearance, you were placed on a community corrections order for a period of six months.  These offences occurred three months into that order. The majority of your prior offending is for dishonesty offences of theft from a shop and like offending. 

3In relation to prior offences for violence, you had the following court appearances.

4On 7 April 2009, at the Bendigo Magistrates' Court, you were dealt with for recklessly causing injury and given a three months sentence of imprisonment, which was wholly suspended.  On 10 April 2007 at Maryborough Magistrates' Court, you appeared for intentionally cause serious injury where you were sentenced to three months imprisonment.  On 25 October 2005 at Maryborough Magistrates' Court, you were dealt with for intentionally cause injury and convicted and fined $750.  On 26 July 2005 at Maryborough Magistrates' Court, you were dealt with again for recklessly cause injury and convicted and fined $400.

5I was informed that you are currently in custody on offences committed since these offence.  You have been sentenced to a period of 12 months imprisonment on 6 September 2013, with a non-parole period of six months.  Your earliest release date I was informed was 29 December 2013.  I am required to fix a new non-parole period for you as a result of the sentence for these offences, on this indictment.  On these offences, you have served 78 days pre-sentence detention between the day of your arrest on 25 November 2012 and 11 February 2013, when you were released on bail. 

6I now turn to the background of your offending.  On the evening of 24 November 2012, you were staying with friends at 94 Gingell Street in Castlemaine.  Mr Wayne Middlemiss lived two doors down the street, in a unit at 90 Gingell Street, Castlemaine.  You did not know Mr Middlemiss, nor did he know you.  At that time you were 32 years old, Middlemiss was 33. 

7The prosecution summary which was Exhibit 1 sets out the offending as follows.  These are the circumstances of the offences.  In the early hours of 25 November 2012, at approximately 4.15 a.m., you walked from your friend's place at 94 Gingell Street down to a large block of units at 90 Gingell Street.  The victim who was living in a unit within the block of units at 90 Gingell Street woke to your knocking on his bedroom window.  He got out of bed and went to the front door to investigate the noise.  He turned the front light on, and opened the wooden front door.  The security door was closed, and locked at this time.

8You were standing at the front door.  Mr Middlemiss could see you clearly with the aid of the front light and saw that it was not anyone that he knew.  Through the security door, the victim, Mr Middlemiss, asked "What's going on, who are you?".  You did not reply but just smiled at him.  He unlocked and opened the security door, so he could talk to you face to face.  With this, you have barged past Mr Middlemiss into his unit. 

9As you stood in the lounge, and he saw that you had a meat cleaver or a chef's knife in your right hand.  

10That is the aggravated burglary, whilst armed with an offensive weapon charge. 

11You then became aggressive and began threatening him saying "You fucken dog, I'm going to slit you up, I'm going to cut you up".  You then raised the knife above your head and swung it at Mr Middlemiss, striking him to the head.  He felt immediate pain as a result of this strike.  He sustained a three centimetre laceration to the left side of his head.  That is the charge of intentionally causing injury.

12Mr Middlemiss tried to move away from you by backing up towards the backdoor of his unit.  He held his hands up to protect himself, as you kept advancing towards him.  You continually verbally abused him.  Mr Middlemiss states that he felt as though he had gone into shock, he was asking you "What the fuck is going on?"  Mr Middlemiss managed to make his way to the backdoor and into the rear yard of the premises.  You had followed him out there and again raised the knife above your head and swung it at him.  This time, the victim put his hand out and the knife struck his right hand between the thumb and the forefinger.  That is the recklessly cause serious injury charge.

13Mr Middlemiss then shoved you to the side and ran past you back into his unit.  He locked the backdoor, locking you outside in the backyard.  You then kicked in the glass panel at the backdoor, causing it to smash inwards.  That is Charge 4, the criminal damage charge.  In doing this, you sustained a laceration to your foot from the broken glass and the window.

14Mr Middlemiss went and locked the front door, securing himself inside his unit.  He then used a tea towel to try and mop up the bleeding from the cut to his head and phoned 000.  The police and ambulance services arrived a short time later.  Police located you still in the rear of his property.  Both you and Mr Middlemiss were treated by ambulance services at the scene and then transported to Castlemaine Hospital for further treatment. 

15Mr Middlemiss received six stitches to the wound to his right hand and the cut to his head was treated by application of glue.  He reported being very rattled and suffering a bad headache shortly after the attack.  He stated that he was in shock.  After receiving treatment for the laceration to your right foot, you were arrested by the police and conveyed to the Castlemaine Police Station where you participated in a record of interview with the police.

16During the course of the interview, you claimed that you had been dragged by the hair into Mr Middlemiss' house and that you had kicked the backdoor window, in an attempt to escape.  During the course of the interview, you claimed the following:  That a man and a lady were fighting in the house across the street from where you were staying.  You went to intervene and was threatened by Mr Middlemiss whereby he stated a car load of people would come and get you. 

17You then said later on in the interview that you had called the police when the domestic dispute broke out.  That was not corroborated by the police records.  The next statement you made was that you were walking down the street and somebody grabbed you by the hair and pulled you into the house.  You then say that you had blacked out once you were inside the house and thought you were going to be killed or raped by the old man.  Your final allegation was you said you had put your foot through the glass of the back door, in an attempt to escape.

18You admitted to having the knife on you as opposed to obtaining it once you were inside the unit, however maintained that you had been dragged into the house by the hair.  The police examined the crime scene and the physical evidence located at the crime scene, contradicted your claims of what had occurred.  In particular, glass at the backdoor was found and had been broken inwards, consistent with Mr Middlemiss' account that you had broken a window, after you had been locked in the rear yard.

19I reject your suggestion that Mr Middlemiss had spoken to you on the phone prior to this night.  I also reject the allegation that Mr Middlemiss either dragged you by the hair into his unit, or touched you in a sexual or threatening way, prior to striking him with the knife on the first occasion, which is Charge 2.

20I find that the aggravated burglary and assaults on Middlemiss are very serious offences.  The aggravating features include: a) an invasion of the home, b) the offences occurred at night, c) the victim in this case was woken from his sleep; and d) prior to you entering his home and the use of the weapon in this case, which is a knife.

21It was put on your behalf that you have little memory of these offences.  Your instructions were that you had injected methamphetamine or ice as it is called, shortly prior to your visit to the Middlemiss unit.  You were fuelled on this drug, when you committed these offences.  This fact does not mitigate your offences, but it was offered as an explanation of your behaviour.

22I now turn to the impact of your victim.  Mr Middlemiss filed a victim impact statement.  It was Exhibit 2 on the plea.  The injury to his head was treated by gluing the laceration, the defensive injury to his right hand required the six stitches at the hospital.  He complains of nerve damage to his hand, as a result of that injury.  He was unable to attend his work for some two weeks.  Mr Middlemiss also complains of suffering from post-traumatic stress disorder symptoms in the form of insomnia, anxiety and depression.  He has taken to alcohol abuse to help him in his words "Escape his feelings of fear, anxiety and hopelessness".  Your impact on Mr Middlemiss has been significant. 

23I will now deal with your post-offence conduct in relation to this case.  You deny the allegations of these offences when interviewed by police.  You positively asserted Middlemiss was the offender, not you.  Ultimately on 17 October 2013, when this matter was set down for contested committal, you indicated your intention to plead guilty to the four charges now on the indictment.  The prosecution concede this plea of guilty was at an early stage in the prosecution.  I note that the plea was indicated once all the witnesses were gathered and ready to participate in the committal process.

24I now turn to your personal circumstances.  You are now 33 years old.  You are currently in custody on offences committed after the offences in this case.  Your partner and father of your two younger children is also in custody.  In total you have three children aged 11, 7 and 3 years old.  The older two are in the same foster care placement as I understand it, the youngest child is currently living with a cousin of your partner, Richard.

25You have not seen your children since your incarceration in June 2013.  You grew up in the Maryborough area.  You attended school to Year 10 at Maryborough Regional College.  You have three brothers and a sister.  Your mother died some six months ago.  You had not spoken to her for the ten years prior to her death.  Your father is a retired train driver. 

26You have reported to Dr Nicholas Owens that you had been sexually abused by your father and a brother when you were aged between seven and nine years.  You had previously told your mother about that sexual abuse, but in your words "She didn't care".  At the age of 16 you told your sister, your only sister.  It was submitted in the plea that you had reported the sexual abuse to the police approximately six years ago.  I note that at that time that no statement of complaint to the police was tendered on your plea, however as we have just heard this morning, the prosecution have made enquiries appropriately and that they have been advised that the enquiries at the Victorian Police, subsequent to this plea, confirmed that you had made a complaint of sexual abuse in the nature described and when you were a child, against your father, going back to 2006, consistent with what was put on your plea.

27The relevance of this history was an explanation for the extensive substance abuse, you have engaged in since you were aged 12.  You started with alcohol at age 12.  By 15, you were a regular user of tobacco and cannabis.  By 18 to 19, you were using amphetamines and heroin, administered intravenously.  You have tried ecstasy.  In the past, you admitted yourself to drug rehabilitation here in Bendigo.  You have been prescribed methadone and buprenomorphine.  You have ceased these opiate substitutes approximately one year ago. 

28You admit that your drug use has caused two problems for you.  The first is your criminal offending, and the second that your children have been taken into care as a result of it.  You have been examined by Dr Nicholas Owens psychiatrist, for the purpose of this plea.  His report dated 22 November 2013 is an exhibit in this plea.  He noted your history that you were treated by Dr De Villiers, a general practitioner in Maryborough for schizophrenia and schizo affective disorder.  You have been prescribed antipsychotic and antidepressant medication.

29You have never been treated by a psychiatrist and never been admitted for psychiatric hospitalisation.  Dr Owens notes your denial of any connection between your psychiatric condition and your criminal offending.  Dr Owens then says:

"On the evidence available, it is most likely that her behaviour was related to the effects of intoxication with methyl amphetamine, which often causes extreme dis-inhibition of behaviour potentially leading to interpersonal violence".

This statement of opinion clearly indicates the connection between mental health and your offending is not made out in this case.  This aspect of the Verdins principles is not enlivened.  Dr Owens agrees with that finding. 

30Dr Owens' opinion is that you suffer from criteria to meet a borderline personality disorder.  He also opines that you meet the criteria for panic disorder.  Dr Owens does not diagnosis you as suffering from schizophrenia.  In his report, Dr Owens noted that he checked the treatment and opinion of your general practitioner Dr De Villiers.  Dr Owens reports as follows:

On 22 November 2013, I spoke by telephone with Raine's GP, Dr De Villiers with Ms Raine's consent.  Dr De Villiers reported that he had treated you for many years and regards your main problems as personality disorder and poly substance abuse.  He said that he did not regard you as suffering from schizophrenia and he has never observed you to be delusional.  He said that you had a history of obtaining drugs of potential abuse from doctors such as Diazepam and Panadeine Forte which contains Codeine.  He remarked on your vulnerability and tendency to be easily victimised within your relationships with men, often suffering from violence from your partners.  Your GP indicated that he thought that there was emotional warmth and engageableness to Ms Raine, which had assisted his ability to treat you in the past.  Dr De Villiers told Dr Owens that you had secondary consultation from a psychiatrist in Bendigo who recommended that you gradually reduce your Risperidone because he did not think that you had schizophrenia either.

I accept that you will be more adversely effected by imprisonment than an individual who is not suffering from mental disorders such as panic disorder and borderline personality disorder.  I do not accept imprisonment will have a significant adverse effect on your mental health after taking into account the whole of Dr Owens report, such as to require to enlighten the Verdins principles.  Your biggest impact in imprisonment will be the separation from your children.

31I now turn to sentencing considerations.  The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to the range of factors, such as the seriousness of your offences, your culpability for them, your personal circumstances, and those of your victim Wayne Middlemiss.  I am required to balance the interests of the community in denouncing your criminal conduct with the interest of the community, in seeking to ensure as far as possible, you as an offender, are rehabilitated and reintegrated into society.

32Further to that, you have pleaded guilty.  You have pleaded guilty at what I describe as an early stage in these proceedings.  The plea was indicated before the contested committal conducted on your behalf.  Your plea of guilty has utilitarian value,  of allowing for the orderly and effective administration of justice.  There is a certainty outcome and a resolution of the substantive issues raised by your offending. 

33Your plea allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates public confidence in the legal process, set up to protect the community.  You have by your plea, relieved your victim Wayne Middlemiss from giving evidence against you.  It facilitates some closure for him, as a victim of your offending.  The plea of guilty also indicates, and demonstrates your remorse.

34Your plea is clear acknowledgement by you, that you accept responsibility for your criminal behaviour in this case.  Your plea also recognises you are prepared to facilitate the course of justice in the community.  You need to address your drug addiction problems whilst in custody, or you will never stop offending and more importantly, you will never get to be the mother of your three children.

35The prosecution submitted that the totality of your offending calls for an immediate term of imprisonment.  It was submitted the range for the head sentence was four and a half years to three and a half years, and a non-parole period of two and a half years to 18 months.  I take into account that your undergoing sentence for other offences and order that these sentences are to be served concurrently with the sentences already being served.

36Would you stand please.  On Charge 1, you are convicted and sentenced to three years imprisonment.  On Charge 2, you are convicted and sentenced to one year imprisonment.  On Charge 3, you are convicted and sentenced to nine months imprisonment.  On Charge 4, you are convicted and sentenced to six months imprisonment.  I order that six months of the sentence in Charge 2, three months of the sentence in Charge 3, and three months of the sentence in Charge 4 be served cumulatively on Charge 1 and each other.  That is a total effective sentence of four years imprisonment.

37I order that you serve a period of two and a half years, before being eligible for parole. Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to five years total effective sentence, with a four year non-parole period. I order for the forensic sample taken from you to be retained as set out in the draft retention order. I declare that you have served 79 days of pre-sentence detention to be deducted administratively from this sentence. You can take a seat. Disposal for the knife?

38MR JONES:  Yes, and an order - there was an order, I think an order for compensation is sought for $400 for the window - $240.

HIS HONOUR:  Yes, sorry, I'll make the order for - thank you

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39MR JONES:  $240.

40HIS HONOUR:  I order that there be a compensation order made in the sum of $240 in favour of Mr Middlemiss.  Ms Raine, do you understand, I am ordering that you are to pay compensation to Wayne Middlemiss for the sum of $240 for the broken window.  As I say, I also order the disposal order sought before - does that cover everything?

41MR JONES:  Yes Your Honour.

42MR DOCHERTY:  Yes Your Honour.

43HIS HONOUR:  Yes, thank you.

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