The Queen v Rachele [2015] VSC 468

2 On the evening of Wednesday 29 January 2014, you went to visit Ms Kristy Robb, with whom, at the time, you were in an intimate relationship. She was residing at her mother's house in Hallam. At approximately 2.45am, both you and Ms Robb attended the home of Mr Matthews at 25 Henry Street, Noble Park. You drove Ms Robb to the Noble Park premises in your motor vehicle.

3 Mr Matthews was known to you, as Ms Robb had previously sub-let the bungalow at the rear of his premises for approximately a week earlier in January 2014. You had previously assisted Ms Robb to remove her belongings from the bungalow to her mother's house. Particular items belonging to Ms Robb still remained at the bungalow and were retained by Mr Matthews as collateral for outstanding rental money Mr Matthews alleged was owed by Ms Robb.

4 Together with Ms Robb, you unlawfully gained entry to the bungalow and began to remove the property belonging to Ms Robb. A number of items were removed and placed at the front of the premises; these items were subsequently loaded into your motor vehicle. It was during this time that Mr Matthews became aware of Ms Robb's and your presence at his property. Mr Matthews entered the bungalow while you were in what is described as the 'kids' room' looking for various items, including a red school shirt belonging to one of Ms Robb's children, who was to start school that day. You depose that you heard and saw Ms Robb and Mr Matthews arguing in the vicinity of the lounge room. You then returned to the kids' room.

5 Next, you heard yelling, screaming, movement and banging, which you believed may have been the sounds of people struggling with each other and that some of the sounds may have been produced as a consequence of hitting furniture and walls in the lounge room. It is the prosecution case that, during this time, Ms Robb assaulted Mr Matthews with a blunt instrument.

6 You then observed Mr Matthews standing in the doorway between the kids' room and the loungeroom. You state that he may have had something in his hand. He was standing with his back to you. You approached Mr Matthews from behind. You grabbed him by the arms at the elbows and dragged him backwards. You forced Mr Matthews to the floor, rolling him to the side as you both fell; this involved Mr Matthews hitting the floor on his side whilst you continued to hold his arms. Whilst Mr Matthews was on the floor, you placed a bent leg across his back, manoeuvring it when necessary to keep Mr Matthews pinned to the floor. You state that during this time, Ms Robb was yelling at Mr Matthews. You also heard Mr Matthews elicit a distinct cry of pain as you held him down. This conduct constitutes the charge of recklessly causing injury.

7 You then noticed that Ms Robb was no longer inside the bungalow. You also noticed that Mr Matthews was beginning to falter in his resistance to being held down. It was at this time that you removed your knee from Mr Matthews' back. Both you and Mr Matthews regained your feet. You then pushed Mr Matthews into the lounge room and closed the door, holding it shut whilst Mr Matthews attempted to open it. When you realised that Mr Matthews had ceased trying to open that door, you ran to the front door of the bungalow, exited, and then held that door shut for a period of time to prevent Mr Matthews leaving the bungalow. Mr Matthews tried to open the front door whilst you held it shut. You depose that you then heard the cutlery drawer in the kitchen rattling and you believed Mr Matthews may be obtaining a knife. You then saw Mr Matthews' foot appear through the window of the kids' room. You began to rattle the front door handle in an effort to distract him and thus causing Mr Matthews to return to the front door, only to find that the front door continued to be held shut by you. It is these events that constitute the charge of false imprisonment.

8 You then saw Ms Robb outside the bungalow and told her that 'we have to get out of here'. You noted that at this point Mr Matthews had ceased trying to open the front door and that you could hear him again moving around inside the bungalow. Ms Robb and you then fled the premises, returned to your car and drove back to your house.

9 Police were contacted by Mr Matthews at 2.53am. Mr Matthews informed the 000 operator that he had been 'bashed by a woman and a bloke who come to get some stuff [sic]' because 'she had a bungalow here and I held some - held a couple of things back from them because they owed me rent...They bashed me with something and I think it was a torch. I'm not sure'. Mr Matthews provided the operator with the name and number of Ms Robb. He also described 'the bloke' as having a 'hood over him'.

10 Police attended the premises a short time later where they located Mr Matthews dead in the bathroom.

11 On the prosecution case, Mr Matthews suffered multiple areas of blunt force trauma, including the following:

(a) Multiple areas of blunt force injury were identified including three lacerations to the scalp, bruising over the central and left side of the front of the chest associated with a sternal fracture, and multiple areas of bruising and abrasion to the limbs including to the right elbow and a large haematoma on the lateral aspect of the right lower leg. There was no evidence of skull fracture or acute traumatic brain injury;

....

(e) The area of tramline bruising over the front of the chest with underlying sternal fracture is indicative of the application of significant blunt force by an elongated firm implement.[2]

12 As explained by Mr Rose QC, Senior Counsel for the Director of Public Prosecutions during the plea hearing, these injuries were caused by Ms Robb striking Mr Matthews with an implement and as a consequence of Ms Robb, at some stage, stamping on Mr Matthews, causing the fracture of the sternum. Mr Rose put it: 'We can't say that any of the serious injuries have been caused by Rachele'.

13 In submissions made on your behalf by your counsel, Mr Morrissey SC, it was suggested the criminality of your conduct commenced when you grabbed Mr Matthews from behind and took him to the floor. That submission appropriately describes the physical aspect of your conduct; it does not adequately describe some matters that give context to the circumstances of the charges to which you have pleaded guilty. These matters include that the offence occurred after 2.30am, occurred in circumstances of your illegal entry to Mr Matthews' home and that he was awoken by your presence. You were wearing a balaclava in an effort to hide your face, as you were aware there was a camera on the side of the house. Further, in your record of interview you acknowledged the prospect of confronting Mr Matthews had been discussed between yourself and Ms Robb and that discussion included that Mr Matthews may be frightened of the two of you, particularly as you were wearing a balaclava. You acknowledged in your record of interview an understanding that Mr Matthews would be upset and angry by your presence at his home.

14 Your conduct in recklessly causing injury involved a type of tackle on Mr Matthews, forcing him to the floor whilst holding his arms at the elbows with Mr Matthews impacting the floor on his side. You pinned him to the ground whilst Ms Robb yelled at him and, although you say you did not see it, you cannot exclude the possibility that Ms Robb may have hit or kicked Mr Matthews at this time. In your record of interview, you stated Mr Matthews was held in this position by you for 'a couple of minutes'. I have no doubt that this conduct of yours caused substantial pain and fear to Mr Matthews.

15 As your counsel said in submissions concerning the offence of recklessly causing injury, '[t]here are no trivial examples of this offence, it is of its nature an indictable offence and of some significance at all times'.

16 I accept that you did not attend Mr Matthews' home with the intention of causing injury to him. I accept a primary motivation for your attendance at Mr Matthews' home was to obtain a red shirt, part of the school uniform needed by one of Ms Robb's children who was due to start school on that morning. I accept what you told the police in your record of interview that you went to Mr Matthews' home in the hope that you could obtain items belonging to Ms Robb without disturbing Mr Matthews.

17 The prosecution summary acknowledges that at the time you recklessly caused injury to Mr Matthews, you were unaware that he had sustained serious injury, which the prosecution allege was caused by Ms Robb. Further, it is apparent that one consideration entering your mind when you grabbed Mr Matthews from behind was an attempt to avoid further physical confrontation between him and Ms Robb.

18 Concerning the circumstances giving rise to the charge of false imprisonment, it does not appear Mr Matthews was detained for anything close to a lengthy period of time. I accept that at least part of your motivation was a concern that if Mr Matthews was let out of the bungalow whilst Ms Robb was still present, it may have led to further confrontation. Further, I accept that during the period of false imprisonment you did not abuse or attempt to inflict fear on Mr Matthews. The absence of such conduct supports the proposition that a prime motive of your actions was to avoid any further conflict.

19 You are 42 years of age. You were 40 at the time of your offending. You have no prior convictions. Evidence tendered and submissions on your behalf indicate you have had a stable upbringing and a very supportive family. Your two siblings were in Court to offer support upon the making of the plea in mitigation. You have purchased and subsequently paid out the mortgage over the family home where you currently reside. On the plea hearing, Mr Morrissey described you as a 'decent working man'.[3] Apart from the conduct giving rise to these charges there is no reason to doubt that. You have owned your own business, Bright Spark Auto Electrics, since 1997.[4] You have undertaken studies to enhance your qualifications and skills as an automotive electrician, obtaining Certificates in respect of Completion of Apprenticeship,[5] Automotive Electricians Apprenticeship,[6] Electrical Training - Part 3,[7] and IV in Automotive Mechanical Diagnosis.[8] Mr Morrissey stated that despite your business effectively being inoperative for some time, you are seeking to revive the business in the near future.

20 You are currently single. You have two daughters, Carly and Tylah, with your wife, Ms Tina Louise Rachele, from whom you have been separated since 2013. Although separated, your wife has provided written evidence of the continued amicability of your relationship. She describes the importance that both she and you place on working 'together as a team to be the best parents possible for Carly and Tylah'.[9] You have custody of Tylah two days per week; time which, according to Ms Rachele, Tylah 'thoroughly loves'.[10] Your wife states that you are 'a very important and loved part of [the] family'.[11]

21 A medical report was tendered from your general practitioner, Dr Nicola Wheatley Price.[12] Dr Wheatley Price provided a history that prior to first consultation with her in January 2011 you had suffered from bouts of depression. At this time you were prescribed with antidepressant medication. You were then referred to a psychiatrist in January 2013, Dr Aileen Jones, who diagnosed adjustment reaction and depression as I understand it likely related to the serious ongoing consequences of injuries sustained by your wife in a motor car accident in May 2005. You continued on antidepressant medication until approximately July 2015 when you informed Dr Wheatley Price that you had ceased taking the medication as your symptoms were subsiding. To the best of Dr Wheatley Price's knowledge you were still taking antidepressant medication on 30 January 2014.

22 There is therefore some evidence that you suffered from depression at the time of your offending. Whilst this might be so, there is no evidence of, and it is not submitted there is, any nexus between your offending and any mental condition to warrant some specific discount as to sentence.[13]

23 Since these offences, you have complied with your bail conditions. You have continued to reside at your house. You have sustained an injury to your hand. Nevertheless, you have completed two courses; one in automotive mechanics, the other in business management, which it is hoped will assist in re-establishing your auto electrician business.

24 The prosecutor read and the Court received into evidence three victim impact statements from Mr Matthews' family members: Mr Colin Drew Matthews, brother, Ms Kelley McPhee, daughter and Mr Paul Drew Matthews, son.

25 The victim impact statements strongly reflect the emotional trauma and grief suffered by Mr Matthews' family as a consequence of his death. The family have lost a sibling, father and grandfather. It cannot be doubted that family members will continue to experience feelings of profound hurt and loss, particularly when remembering the circumstances leading up to the death of Mr Matthews.

26 In considering the victim impact statements, I remind myself that in sentencing you I am to keep in mind the circumstances that give rise to the two charges to which you have pleaded guilty. You are not charged with any offence that concerns the death of Mr Matthews and the prosecution makes no case against you concerning his death. Nevertheless, to some extent, the pain, fear and upset he suffered in the time leading up to his death is due to your conduct.

27 Considering your lack of prior convictions and the evidence tendered demonstrating the strong family support networks available to you and your entrepreneurial employment history, I accept that your prospects of rehabilitation are strong. Your lack of antecedents also reduces the need for specific deterrence in your case. More recently, your intentions to pursue further education and restart your business are also indicative of the minimal risk of you re-offending.

28 There is utilitarian value in you pleading guilty, particularly as you have obviated the need for the Court and the State to devote resources to your trial.[14] I have taken this into account in your favour in sentencing you. However, the utilitarian benefit of your plea is reduced by the fact that it was late, only being made on the first day of trial. I also find that your guilty plea is, to a certain extent, indicative of remorse, particularly as such a finding is consistent with your cooperation with the police in circumstances where you were not aware of the strength of the prosecution case against you.[15] Your remorse is another factor that demonstrates your good prospects of rehabilitation.

29 On the plea, you undertook to give evidence in accordance with the tendered document titled 'Gino Rachele Brief Outline of Can Say Statement' when called upon to do so.[16] As submitted by Mr Morrissey, this further cooperation with the authorities warrants a further discount to your sentence.[17]

30 In considering current sentencing practices, I have reviewed a number of sentences involving the charges of recklessly cause injury and false imprisonment. While it is important that you understand that your conduct was inexcusable, I find that your conduct is of a less serious nature than many of these cases. Although only of limited assistance in this regard, I also note that Mr Morrissey tendered a document which set out the sentencing outcomes for the offence of causing injury recklessly for the period 2008-09 to 2012-13.[18] This document demonstrates that the significant majority of such sentences were non-custodial.

31 Taking into consideration the matters to which I have referred and the matters referred to in s 5(2) of the Sentencing Act 1991, and having regard to the principles of parsimony, proportionality and just punishment, on the charges of recklessly causing injury and false imprisonment, I sentence you to a Community Correction Order (the 'Order') for a period of one (1) year. The Order will commence on 3 September 2015. Having considered the Community Correction Order Assessment prepared by the Department of Justice dated 1 September 2015, the conditions of the Order are:

1. You must attend Dandenong Community Correctional Services located at 46-50 Walker Street, Dandenong, Victoria by 10.00am on 4 September 2015;

2. You must complete 150 hours of unpaid community work as directed by the Regional Manager;

3. You must undergo assessment and treatment, including testing, for drug abuse and dependency as directed by the Regional Manager;

4. You must undergo assessment and treatment, including testing, for alcohol abuse and dependency as directed by the Regional Manager;

5. You must undergo a mental health evaluation and receive treatment accordingly as directed by the Regional Manager;

6. You must attend regular appointments with the Dandenong Community Correctional Services; and

7. That the hours taken in relation to conditions 3, 4, 5 and 6 above, except for any time spent in a residential detoxification or drug treatment facility, be deducted from the community work hours outstanding.

32 I direct that the Dandenong Community Correctional Services located at 46-50 Walker Street, Dandenong, Victoria, is the centre having responsibility for the administration of the Order and appoint the Dandenong Magistrates' Court as the supervising court under the Order.

33 I have decided on this sentence because 'a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation'.[19]

34 Pursuant to s 6AAA(3) of the Sentencing Act, if you had not pleaded guilty, I would have sentenced you to an eighteen (18) month Community Correction Order on the same conditions, except that you complete 225 hours of unpaid community work.

[1] Crimes Act 1958 s 320.

[2] PX-1 (Summary of Prosecution Opening filed 1 September 2015) at [23].

[3] Submissions of the Accused filed 1 September 2015.

[4] DX-3 (Certificate of Registration of Business Name dated 3 November 1997).

[5] DX-3 (Certificate of Completion of Apprenticeship conferred on 4 February 1994).

[6] DX-3 (Certificate of Completion of Automotive Electricians Apprenticeship conferred on 10 September 1996).

[7] DX-3 (Certificate on Completion of Electrical Training - Part 3 conferred in April 2004).

[8] DX-3 (Certificate IV in Automotive Mechanical Diagnosis conferred on 9 December 2014).

[9] DX-2 (Letter in Support of Gino Rachele from Tina Louise Rachele dated 31 August 2015).

[12] DX-1 (Letter from Dr Nicola Wheatley Price to Steven Pica re Gino Rachele dated 31 August 2015).

[13] Supreme Court Transcript ('Transcript') at 28.31 - 29.18.

[14] Phillips v The Queen (2012) 37 VR 594, 610 [55] (Redlich JA and Curtain AJA, with whom Maxwell P and Harper JA agreed).

[15] Barbaro v The Queen [2012] VSCA 288, [40] (Maxwell P, Harper JA and T Forrest AJA).

[17] R v Su [1997] 1 VR 1, 78-79 (Winneke P, Hayne JA and Southwell AJA).

[18] DX-4 (Snapshot 159: Sentencing Trends for Causing Injury Recklessly in the Higher Courts of Victoria, 2008-09 to 2012-13).

[19] Boulton v R [2014] VSCA 342, [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).