R v Ray and Vella
[2014] VSC 165
•11 April 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
Nos. 0136 & 0137 of 2013
| THE QUEEN | |
| v | |
| JACK RAY -and- NICHOLAS VELLA | First Accused Second Accused |
---
JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 April 2014 | |
DATE OF SENTENCE: | 11 April 2014 | |
CASE MAY BE CITED AS: | R v Ray and Vella | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 165 | |
---
CRIMINAL LAW – Sentence – Aggravated burglary – False imprisonment – Two accused - Confrontational aggravated burglary in the context of dispute concerning stolen property – Serious example of the offence of aggravated burglary – Young offenders – Remorse and prospects for rehabilitation high – Offer to plead guilty made at early stage by one of the accused - Impact of general deterrence, denunciation and punishment softened by mitigating features – First accused sentenced to three years’ imprisonment with a minimum period before parole eligibility of two years – Second accused sentenced to two years nine months’ imprisonment with a minimum period before parole eligibility of one year nine months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Grant | Office of Public Prosecutions |
| For the First Accused | Mr C. Dane QC | James Dowsley & Associates |
| For the Second Accused | Mr S. Johns | Robert Stary Lawyers |
HIS HONOUR:
Jack Ray and Nicholas Vella, you have both been convicted by a jury of the crimes of aggravated burglary and false imprisonment. You have been acquitted of the offence of manslaughter after successful no case submissions were made on your behalves.
Christopher Meade was 29 years old. He, like yourselves, grew up in the Diamond Creek area. He was a qualified plumber who specialised in the maintenance of air conditioners. Regrettably, it seems the period towards the end of his life was characterised by drug abuse, drug dealing and handling stolen goods. You both knew Chris Meade and had worked with him at Oz Cool, a business dealing with the installation and maintenance of air conditioning systems.
On 19 May 2012, a sporting business in Greensborough known as the Fight Factory was burgled. Sporting clothing was stolen. You, Mr Vella, were friends with the owner of that business, Scott Gregory. You became aware that Chris Meade was offering for sale clothing apparently from that burglary and you undertook to your friend that you would retrieve some or all of the stolen goods.
Six days later on 25 May 2012, a burglary and theft occurred at 746 Yan Yean Road, Yarrambat. This was your family house Mr Ray, and property was stolen from your bungalow area at this address. Amongst other things your Play Station 3 was stolen. Your mother observed a brownie/gold coloured car parked nearby and you, Jack Ray, formed the belief that Chris Meade had broken into your bungalow and stolen your property. You confronted him that afternoon but it appears that he denied any knowledge or involvement in the burglary. Mr Meade drove a gold-coloured car and made a gift of a play station game to Mr Ben Eldridge shortly after the burglary. This is not sufficient evidence upon which to base a finding that Mr Meade was responsible for the burglary, however I am satisfied that you, Mr Ray, genuinely believed that he was, in fact, responsible.
Over the next month or so both of you became progressively more antagonistic towards Christopher Meade. I do not proposed to recite the SMS messaging between you but it is apparent that by 12 June you, Mr Vella, had been endeavouring to retrieve the stolen sports clothing. It is clear from the messages that Mr Meade, whilst confirming that he possessed at least some of the clothing, was failing to keep arrangements to meet with you.
I consider that by about 12 June the prospect of assaulting Mr Meade whilst retrieving the clothing was at least under consideration by you both. On 12 June, Christopher Meade sent you, Mr Vella, an SMS displaying a photograph of seven sets of martial art units. You forwarded this photograph to Mr Ray. Shortly after that you, Mr Vella, said in an SMS, “…I’m gona grab them tomoz”. You, Mr Ray, replied, “And thump him”, to which Mr Vella said, “Well, we will see how it all goes my brother”. Mr Vella then added, “We will both go 2moz nite and go with the flow”.
Only you two know what occurred between 12 June and 28 June 2012. In a police statement you, Mr Vella, described collecting some gym clothes from Christopher Meade a couple of weeks before his death and returning them to Scott Gregory. You stated that Mr Meade then chased you for payment for those clothes. There is little independent corroboration of this account. The account itself exists in a statement in which you deny all knowledge of the relevant events on 28 June 2012. Mr Gregory was unable to be specific as to whether the clothing was returned to him before or after that date. I should add that the telephone records demonstrate that on 28 June it was Mr Meade who initially contacted you.
In my view, it is immaterial whether by 28 June Mr Meade was after you, Mr Vella, for money or you two accused were after him for the stolen property. By that date relations were sufficiently strained between Mr Meade on the one hand and you two men on the other that you planned to go to his house, enter it and assault him. This is clear from the jury verdict on Count 1. The prosecution argued at trial that the motive was revenge. I am satisfied that in part your motive was retribution but I also consider it likely that you wished to search for and retrieve any remaining stolen property including the play station and other items stolen from Mr Ray’s bungalow.
I am not satisfied beyond reasonable doubt that the false imprisonment aspect to your offending was planned in advance. Both the black Nitto duct-tape and the polythene cable ties were available at Mr Meade’s house and it may be that your combined efforts to restrain him were opportunistic rather than pre-planned. It is clear, however, that the false imprisonment involved striking Mr Meade several times to the face to the point where he was sufficiently subdued so that he could be bound by ankles and wrists. I consider it likely that he was assaulted in the entrance hall/living room area of the house and then bound in that location. His injuries suggest that he was dragged over a carpeted surface and the bruising to his back and the back of his head may have come from direct blunt force trauma applied by one or other of you or it may have resulted from him struggling after he was bound and perhaps falling off his bed. Either way, both of you are responsible for those injuries that have arisen directly from the false imprisonment aspect of your offending.
The prosecution invited me to conclude that you left Mr Meade bound at a time when you must have been aware that he was in distress and that this is an aggravating factor attaching to the false imprisonment counts. I am not satisfied of this beyond reasonable doubt. I think it is possible. Equally, I think it is possible that his distress did not commence until after you left, or that it was brief and Mr Meade died before you left. I am simply unable to resolve this to the criminal standard. I am satisfied to that standard however that the false imprisonment itself must have been most uncomfortable and involved significant physical and emotional trauma to Mr Meade.
Before I leave my summary of your offending I should circumscribe its boundaries and characterise my assessment of it. The aggravated burglary was complete when you trespassed through the front door of Mr Meade’s house with the intention of assaulting him. As a confrontational aggravated burglary I regard this as a serious example of that offence. I also regard the false imprisonment offending as serious. It was protracted, occurred in Mr Meade’s own home and was accompanied by violence. It was concluded only by Mr Meade’s death. I am conscious that I must avoid doubly punishing you for aspects of these offences that overlap. In particular, I refer to the intention to assault that is an element of the aggravated burglary charge and the assault itself that is part of the false imprisonment charge. I have endeavoured to avoid doubly punishing you for this assault although I consider that some cumulation is necessary.
I emphasise that it is no part of this sentencing exercise to punish you for causing Mr Meade’s death. Verdicts of not guilty have been entered on the manslaughter charge and you are entitled to their full benefit. I indicated in discussion with your counsel that there is no sensible distinction that can be drawn between your respective roles and I regard your objective criminal culpability as equal.
I now turn to factors personal to each of you. I will deal with you, Jack Ray, first. You are now 22 years old. You were 20 in June 2012. You have a minor prior Children’s Court appearance, which I regard as irrelevant. You left school in late 2007 to take up a plumbing apprenticeship. Your employer, Mr Hume, gave evidence before me. You completed your apprenticeship with him, remained employed by his company and now are a leading hand. You will be promoted to site foreman should circumstances allow it. That progression only needs to be recited for it to be understood that you have done very well since leaving school. When you are released from prison your job remains open.
Other character witnesses talk of your work ethic, your honesty and your reliability. Your girlfriend’s father spoke very highly of you. You are from a good family, although your parents are now living apart. I accept that you have taken responsibility for assisting in the day-to-day running of the family household. You have an older brother Aaron, and younger twin siblings Harry and Maddie.
I remarked to your counsel that my perusal of recent examples of confrontational aggravated burglaries led me to conclude that this type of offence was most often committed by offenders who had long criminal histories, usually associated with intractable drug addictions. The fact that neither you nor Mr Vella seems to come from such a background makes your conduct hard to comprehend. It also makes this a difficult sentencing exercise with powerful competing factors.
Mr Vella, your background is no less solid and your referees speak just as highly of you. You are older than Mr Ray and were 23 when these offences were committed and are now aged 25. You are the oldest of four children and your parents Andrew and Dorina run a farm in the local Diamond Creek area.
You left school in Year 10 and completed a panel beating apprenticeship. About 2 ½ years before your arrest you had a change in career directions and commenced working as a plumber’s labourer at Oz Cool. Mr Hume also spoke highly of you. At the time of your arrest you were about to commence a plumbing apprenticeship and Oz Cool retains a place for you upon your release from prison. Your referees speak of your trustworthiness, your work ethic and competence, your generosity and your love of your family.
I have to say that I was particularly impressed with evidence given on your behalf by Ms Anne Hooker, Youth Development Officer at Port Phillip Prison. Ms Hooker has worked in that role for 15 years. She rarely comes to court to give evidence. The Youth Offenders Program recognises the vulnerability of young offenders in an adult prison and aims to reduce the risks that create that vulnerability and further to provide a positive, supportive environment where rehabilitation is more than just an aspiration.
After some months in that program you volunteered to become a young prisoner mentor. You underwent a 50-hour training program. You act as a confidant and role model to other young offenders and represent the program to visitors. I quote from Ms Hooker’s evidence:
Mr Vella was identified as a potential mentor by the staff, the correctional officers…due to his attitude, his manners and his overall behaviour within the unit…(he’s) viewed by the correctional officers as someone who is a really good example of a well behaved prisoner within the unit.
Ms Hooker went on to give examples of the productive way you have carried yourself and influenced others in the program.
Pre-sentence detention
Both of you were originally charged with murder on 2 November 2012. Jack Ray, you remained in custody until 1 August 2013 and you have been remanded back into custody since the jury verdict. You have now served 287 days of pre-sentence detention. Mr Vella, you have not sought bail and have now served 525 days.
Remorse
I am prepared to accept that both of you are remorseful for your conduct. Mr Vella, your remorse is more transparent. You offered to plead guilty at a relatively early stage to the offences of which you have ultimately been convicted. You did not seek bail. I accept the evidence in your mother’s testimonial:
(He) is remorseful and disappointed within himself for what has transpired. Nicholas often tells me that he cannot believe the circumstances that he has put the Meade family through and often puts himself in their situation, being the only son from a loving family”.
Mr Ray, you are unable to point to a plea offer as evidence of remorse, although given the presence of, initially, a murder charge and then post-committal a manslaughter charge where causation was hotly disputed, your failure to make an offer is forensically understandable. Your character referees talked of remorse exhibited by you (Shilo Rees, Rhonda Miles, Sister Mary O’Shannassy). Sister O’Shannassy is the Director of the Catholic Prison Ministry. She says that you were devastated when you heard a person had died and that whilst in custody, at times, you were quite distressed and extremely remorseful.
I have found you both to be remorseful for your conduct on 28 June 2012. I take it into account in your favour.
Plea offers/Trial Conduct
As I have said, Mr Vella, shortly after the committal you made an offer to plead guilty to aggravated burglary and false imprisonment. You are entitled to some benefit for this, although that benefit in my view needs to be qualified a little. It is correct that if the prosecution had accepted that offer and withdrawn the manslaughter charge the community would have been spared the inconvenience and expense of your trial. On the other hand, when you were indicted on all three charges you pleaded not guilty to all of them (although you barely contested the false imprisonment charge). Similarly, after a verdict of not guilty to manslaughter was entered at the end of the Crown case, you continued with your other pleas of not guilty until verdict. I have discounted the benefit I would normally allow to reflect these latter factors.
Your trial was conducted very efficiently by two experienced and highly competent counsel. In particular the defence and prosecution entered into a set of Agreed Facts pursuant to s 191 of the Evidence Act. The facts agreed were wide ranging and in my view resulted in a significant saving in court time. No matter how competent the counsel, agreed facts of this type cannot be settled without instructions. I take this into account in your favour.
Other sentencing factors
In all other respects, I am unable to distinguish your respective positions. As I indicated during the plea, I consider you both have excellent prospects for rehabilitation, and I do not consider there is any need for specific deterrence.
I am of the view however that your conduct requires the aspects of punishment, denunciation and general deterrence to be given some weight in this sentencing process. The Court of Appeal has made it abundantly clear that confrontational home invasions usually ought attract stern punishment.
I am obliged to take into account the impact of your offending on the Meade family, who have made moving Victim Impact Statements. I cannot punish you for their loved son’s death, but I do take into account the impact upon them of your conduct immediately leading up to Chris Meade’s death.
After much consideration, I have softened the impact of general deterrence, denunciation and punishment in deference to your youth and future prospects. Although you Mr Vella were not strictly a “young adult offender” at the time of the commission of the offences at 23 you were still young and the SMS messages between you and Mr Ray demonstrate a singular lack of maturity on both your behalves. I consider that the community has a vital interest in your rehabilitations. You have much to offer if that rehabilitation can be achieved, and the community will be the better for it.
Stand up please.
Ray
1.On aggravated burglary: I sentence you to 3 years’ imprisonment.
2.On false imprisonment: I sentence you to 2 years’ imprisonment. I direct that six months to be served cumulatively upon the aggravated burglary sentence.
The total effective sentence is 3 years and 6 months. I set a minimum term before parole eligibility of two years. I declare that 287 days of that sentence not including this day be reckoned as served by way of pre-sentence detention.
Vella
1.On aggravated burglary: I sentence you to 2 years 9 months’ imprisonment.
2.On false imprisonment: I sentence you to 1 year 9 months’ imprisonment. I direct that six months to be served cumulatively upon the aggravated burglary sentence.
The total effective sentence is 3 years and 3 months. I set a minimum term before parole eligibility of 1 year 9 months. I declare that 525 days of that sentence not including this day be reckoned as served by way of pre-sentence detention.
I declare that but for the offers to plead guilty referred to above I would have sentenced you to 3 years’ 6 months’ imprisonment with a minimum term before parole eligibility of two years.
2
0
0