Director of Public Prosecutions v Rainey

[2018] VCC 204

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00854

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE RAINEY

---

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	4-8 December 2017, 11 December 2017, 9 February 2018
DATE OF SENTENCE:	2 March 2018
CASE MAY BE CITED AS:	DPP v Rainey
MEDIUM NEUTRAL CITATION:	[2018] VCC 204

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N Batten	OPP
For the Accused	Mr J Anderson	Doogue & George Defence Lawyers

HIS HONOUR:

Introduction

1Luke Rainey, you have been found guilty of one charge of Aggravated Burglary contrary to s 77(1) of the Crimes Act 1958, one charge of Damaging Property contrary to s 197(1) of the Crimes Act 1958 and one charge of Making Threat to Kill contrary to s 20 of the Crimes Act 1958. The maximum penalties being 25 years on charge one, and 10 years on charges two and three.

2You have also admitted your criminal record.

Circumstances of the offence

3Consistent with the verdict of the jury, the circumstances of the offending may be summarised as follows:

4On Sunday, 25 October 2015 at about midnight, Mak Makune and June Mussett were at their home in Nagle Way, Kinglake West watching television. One of their three Rottweiler dogs began to bark. Mr Makune noticed headlights at the top of the driveway. Mr Makune and Ms Mussett’s property was in a remote rural setting. The front gate to the property was about 100 metres from the house.

5Mr Makune grabbed a torch, walked out the front door and up the driveway towards the boundary of his property. He saw a man at the front fence who then squeezed through the front gates and started walking down the drive towards Mr Makune. The man he saw was you, Luke Rainey. You were with two other men who were also out of the car. The two other men followed through the gates. Their identity remains unknown.

6You say in your record of interview that you had attended the area together with two other males for the purposes of looking for a person by the name of Daniel Madden who you believed lived in an adjoining property and with whom you had a grievance. You say you wanted to give Daniel Madden a blast because you had heard that he had injected a friend of yours with ice.

7As Mr Makune approached you, you said to him ‘You can't fucking do this to us.  I'm going to fucking kill you’. That threat constitutes charge three on the indictment. You say in your record of interview that Mr Makune had set his dogs on you, however in evidence, Mr Makune stated that he approached the front gate with one of his dogs with him and that the dog did not attack you.

8Once threatened by you, Mr Makune was scared and ran back down the driveway towards his house. You ran behind him. Ms Mussett, who remained in the house, heard words to the effect of ‘I'm going to fucking kill you’. As Mr Makune entered his house and closed the front sliding glass door, you picked up a large stick or tree branch from outside. Mr Makune told Ms Mussett to call the police. You smashed the glass of the sliding door with the branch and followed Mr Makune into the house. That constitutes charge one, aggravated burglary and charge two, criminal damage. The aggravated burglary was put on the basis of you entering the house knowing Mr Makune was present and with the intention to assault him.

9Mr Makune ran through the house to the rear. Having smashed through the window you were confronted by Ms Mussett who remained in the room near the front of the house. She stated in evidence that a second man followed you into the house and a third man stayed outside. She states that you were very angry and aggressive and appeared drunk or drug affected. In the process of coming through the door you had cut your hand and blood was dripping on the floor.  She stated in evidence that you said ‘where is he, I'm going to fucking kill him’ and ‘you set the fucking dogs on us’. She states that you were yelling at her and started pointing at her saying ‘you can't do this to us’. Ms Mussett told you to get out. Ms Mussett also said to you that you had broken her door and smashed her window. At that point you threw $80 on the ground and said that you would pay for the door.

10In my view a reasonable inference that can be drawn from the evidence as presented at trial was that you and your colleagues were on a mission to confront Mr Madden. After the approach by Mr Makune at the front of his property, you became angry and chased Mr Makune down his driveway.  Although it was put on your behalf that you were extremely drunk at the time, the fact that you know Mr Madden and that you do not know Mr Makune suggests that you were aware at the time of the conversation with Mr Makune that you were at the wrong property. Even if it could be said that you were not in a fit state of mind, it appears that once you had smashed through the window and were confronted by Ms Mussett you came to your senses, realising then that you had overstepped the mark. Upon that realisation you effectively apologised and offered to pay for the window, throwing $80 onto the floor. You and your colleagues then left the property.

11At trial, you ran the defence of self defence. You claimed that the combination of Mr Makune having his dog or dogs at the gate, together with what you say were threats by Mr Makune that he was going to get a gun, caused you to follow him 100 metres down his driveway in order to prevent him from obtaining the weapon. This was a fanciful defence that was clearly rejected by the jury. You were at a rural property with your car close by and had two colleagues behind you. If there was any substance to the threat by Mr Makune you could have turned around, got into your vehicle and driven away. 

12You further contended at trial that you did not use the tree branch to break the window rather, that while chasing Mr Makune you were unable to stop when he closed the glass sliding front door as he went through thus you did not enter as a trespasser. While there was some inconsistency about the description of the piece of wood or branch that was used, Ms Mussett in particular did not waver from the fact that you broke the window with a piece of wood before entering the property.

Objective seriousness of the offending

13The victims in this instance lived in a remote and relatively isolated property.  They were not known to you and were simply watching television in the privacy of their home. 

14What then occurred was the approach by you and your colleagues. You were in a drunk and agitated state. Mr Anderson, who appeared on your behalf at the trial and the plea, submitted that you had consumed approximately a slab of beer in the period leading up to the offence.

15The charge of aggravated burglary was particularised in two ways. First, that you entered with an intent to commit an offence involving an assault and secondly, that at the time of entering a person was present in the building and you knew there was a person present in the building.

16The matters to be taken into consideration in assessing the seriousness of an offence of this nature include whether you were carrying a weapon when you entered to assault, whether in fact an assault or battery did take place, whether you were alone or in company, the time of day in which the burglary took place and the mode of entering into the house. That is not an exhaustive list and of course each case turns on its own facts. 

17In my view, this would have been an extremely frightening event for the victims involved.  As noted, this was a private and isolated home, you were not known to the victims at all, it was the middle of the night and you smashed through the door in a violent manner.

18On the other hand there are some matters that make this aggravated burglary somewhat different to others. Once you had realised your mistake or once you had realised that you had overreacted to the perceived threat of Mr Makune, you quickly came to your senses - no doubt because you had just smashed through the glass door and had injured yourself in the process. You had intended initially to confront someone else. Once you had realised your error, you apologised and immediately threw money on the ground to make up for the damage that you had done. You then left without further incident. 

19Once you had entered the house you did not assault anyone and did not steal anything. Further, given the nature of how this aggravated burglary unfolded, it could not be said that there was any preplanning. Your behaviour and reactions on this night were due to a number of matters, most particularly that you were extremely intoxicated and that you were angry. It is not surprising that an assessment of your previous history reveals that anger and fighting has led to a number of your court appearances. 

20While the circumstances of this case are rather unique in my view it is an offence which might be categorised in the mid range of offences for aggravated burglary.

Victim Impact Statements

21Victim Impact Statements were tendered on behalf of June Mussett and Mak Makune. Attached to those statements was a psychological report prepared by Michelle Costanzo. It is a combined report written in support of the victim impact statements. Ms Costanzo assessed Ms Mussett and Mr Makune concluding that both continue to suffer the effects of the home invasion and both require ongoing support. 

22The individual Victim Impact Statements unsurprisingly attest to the ongoing emotional turmoil they have suffered as a result of your offending. Following the home invasion, Ms Mussett and Mr Makune moved out of the property in Kinglake and left their contents behind. They have since sold the property losing a considerable amount of money and the potential income from the business they were building.

Personal circumstances

23A number of documents were tendered on the plea which outline your personal circumstances including your history of drug use, alcohol use and your psychological history. The most recent report that was prepared on your behalf was a report prepared by provisional psychologist Daria Sizenko as supervised by forensic psychiatrist Pamela Matthews.  An historical psychologist report that was prepared by psychologist Bob Ives on 10 November 2013 was also tendered as were letters from medical practitioners that have dealt with you and agencies such as Uniting Care where you have engaged services in the past.

24Also tendered on your behalf was a letter written by your father Mr Robert Rainey. He provides a brief outline of your family life. He has been with you through your difficulties and continues to support you. 

25You are 36 years of age. You grew up in the Whittlesea area with your father, mother and younger sister. Your mother passed away following a long battle with breast cancer when you were 18 years of age. Your sister is 35 and she resides in Perth. You do not have much contact with her since your mother's death.

26You attended a number of schools ultimately being asked to leave Whittlesea College halfway through Year 11 due to getting into fights. In Year 9, during a summer job, your right hand was crushed in a metal press resulting in the loss of the tips of three middle fingers of your right hand. You required a scribe in order to continue at school as you were unable to write.

27Despite your injury, you completed a plastering apprenticeship from ages 17 to 21. You have had sporadic work over the years with a combination of long periods of employment and long periods of unemployment. Since being charged you have had some work whilst on bail.

28From a long term relationship that ended approximately four years ago, you have two children aged seven and six. Your father states that you have a good relationship with them and are trying very hard to be a good parent. You see your children every second weekend. You currently reside in a rental property in Eltham.

29You were diagnosed with ADHD at the age of 12. You also have in the past a psychiatric diagnosis of generalised anxiety and mild to moderate depression.  The report of Mr Ives concludes that your conditions have the likelihood to impair your ability to exercise appropriate judgment and make calm and rational choices. Ms Sizenko is of the opinion that some of the features of your ongoing long-standing ADHD results in difficulties with restlessness, inattention, poor planning and impulsivity.

30You are also on medication being Seroquel and Valium. You were on this medication on the evening of the offence together with the large amount of alcohol that you had consumed. Given the features of your ADHD in combination with the drugs and alcohol you had consumed on the evening, the conclusions of Ms Sizenko are that it is likely that you were suffering extremely poor impulse control and reasoning. The facts of this case support such a conclusion.

31You began to use alcohol and cannabis at age 12 to 13. When your mother passed away your drug use escalated and you began to take ecstasy, amphetamines and LSD. Following the birth of your children you have continued to use alcohol however your drug use has been confined to cannabis.  Even in your record of interview you admit that you were drunk on the night, that you are an alcoholic and that you ‘are not a very good drunk’.

32In early 2017, you completed a one-week detox program as an inpatient at the Drug Health Services and Adult and Specialist Programs in Footscray. This consisted of a week in hospital to detox followed by another week of rehabilitation. After this you attended a rehabilitation course at a facility in Coburg which you attended for six weeks. You also later attended an anger management course. Since completion of those programs you have consumed alcohol on two occasions however, you continue to smoke cannabis. It is apparent from your criminal history and your behaviour on this evening that alcohol has underpinned a large amount of your offending behaviour.

33Your father confirms your progress in relation to alcohol use and says the following:  ‘Luke is a decent, loving person. Providing he stays away from drugs and alcohol. I have been very pleased with his efforts to rid himself of these twin evils’.  It is clear that you have made a sustained effort to address your alcohol and drug issues.

Sentencing considerations

34You have had an extensive criminal history however have not been convicted for a burglary or an aggravated burglary. You have been subjected to two community corrections orders in the past. You completed an ICO in 2006 and a CBO in 2001. It would seem that when you are given an opportunity to address your issues that you are able to take that opportunity however you have had an ongoing battle particularly with alcohol and anger. 

35Ms Sizenko also concludes that given your active voluntary engagement in treatment over the past year, you are likely to respond well to the structure of a treatment focussed community correction order.

36From the evidence presented at the plea, I accept that you have demonstrated significant change in the past year after a very long history of alcohol and drug abuse. While your history would suggest that your prospects of rehabilitation may be guarded, the work you have done in the past year in my view raises your prospects and I would assess them now as reasonable.

37Despite your good efforts in addressing your issues there are other sentencing considerations which are relevant in the circumstances of this case.  Aggravated burglary is a serious offence and in the particular circumstances of your offending, general deterrence must be given considerable weight in the sentencing discretion together with just punishment and denunciation of your conduct.

38While you pleaded not guilty it is clear from the way in which you behaved once you entered the house that you accepted that you had made a mistake. Despite the frightening circumstances that Ms Mussett and Mr Makune found themselves in, you apologised and threw some money on the ground to cover the damage that you had just caused and left immediately. I take this into account in assessing the overall seriousness of your behaviour.

39You have been assessed as suitable for a Community Correction Order.  However, the assessor notes that you are a high risk of re-offending.  Disappointingly, you maintained to the writer that you were not guilty of the charges. 

40Ordinarily in the circumstances of your offending a period of imprisonment with a non-parole period would be the most appropriate disposition. However given the work you have done in the past year to demonstrate your genuine efforts to change your life, in my view a sentence that combines imprisonment followed by a Community Correction Order is able to meet the sentencing considerations that I must take into account in this case.

Sentence

41Mr Rainey, please stand. 

42Luke Rainey, on Charge one you will be convicted and sentenced to 12 months imprisonment. Following that period of imprisonment you will be placed on a Community Correction Order for a period of three years. The Community Correction Order will be an order with punitive and therapeutic components.  You will be required to complete 200 hours community work and engage in programs to further address your drug and alcohol use and your offending behaviour. 

43On Charges two and three you will be convicted and placed on the same Community Correction Order.

44Pursuant to s 18 of the Sentencing Act 1991, I declare that 21 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

- - -