R v Close

[2020] VCC 1331

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE
CRIMINAL JURISDICTION  Revised
Not Restricted
Suitable for Publication

CR-20-00501
AP-18-1898

THE QUEEN

v

LUKE CLOSE

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2020
DATE OF SENTENCE:	19 August 2020
CASE MAY BE CITED AS:	R v Close
MEDIUM NEUTRAL CITATION:	[2020] VCC 1331

REASONS FOR SENTENCE
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CRIMINAL LAW – Early Plea – Contravention of Community Corrections Order – Intentionally Cause Injury – Serious example of the offence – Use of a knife – Some deliberation – Somewhat spontaneous event – Significant prior criminal history – Blighted upbringing – Drug and alcohol addiction – Mental health issues – Positive engagement with rehabilitation – Burden of imprisonment – COVID-19 pandemic – High degree of culpability – Denunciation – Specific deterrence – General deterrence – Offender rehabilitation – Fork in the road – Significant expression of remorse – Strong family support.

SENTENCE – Sentence in the community to enhance rehabilitation – Resentenced  on the original charges on AP-18-1898, 6 months’ imprisonment – 1 month imprisonment for contravening a community corrections order – 27 months for the offence on indictment K12971578 – All sentences of imprisonment concurrent – Crimes Act 1958 – Sentencing Act 1991 s6AAA – Total Effective State Sentence 27 months imprisonment – 14 month non parole period – Vella v The Queen [2018] VSCA 302, considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Sprague	Ms A. Hogan, Solicitor for Public Prosecutions.
For the Accused	Mr H. Rattray	Balmer & Associates

HIS HONOUR: 

1Luke Close, you have pleaded guilty to one count of intentionally causing injury to Nathan Rolfe on 3 November 2019.  The maximum penalty is 10 years' imprisonment.  You have also pleaded guilty to one count of contravening a community corrections order (CCO) imposed by this court on 21 September 2018.  The maximum penalty is three months' imprisonment.  The community corrections order was imposed on appeal on charges of theft, making a threat to kill, recklessly causing injury and resisting a police officer.

2On that date, 21 September 2018, you were sentenced to an aggregate sentence of three months' imprisonment followed by a one year CCO upon your release from prison.  You were also sentenced to one month's imprisonment on other charges, cumulative.

3The community corrections order that was imposed commenced on 20 January 2019 and you have pleaded guilty to a charge of failing to comply with the conditions of that CCO including by committing this further offence of intentionally causing injury.  It was common ground on the plea that you must now be sentenced on the original offending giving rise to the CCO as well as for the offence of intentionally causing injury.

The circumstances of the Intentionally Cause Injury offence

4The circumstances of your assault on Mr Rolfe were set out in the prosecution opening, which was read in open court, and which I incorporate by reference[1]. I direct that it be made available on request.

[1] Exhibit A on the plea

5In brief outline, the offending occurred at a house party in Epping.  The victim was aged 35 and was a close friend of the host.  He had known of you for about 10 years and had known you personally for about six months. You were consuming alcohol throughout the night and observed to be heavily intoxicated.  The victim had also been consuming alcohol and smoking cannabis.

6In the early hours of the morning, you became angry because your phone had been smashed and you accused one of the guests who had bumped into you of causing the phone to drop to the ground.  You started yelling at that guest, demanding $50 to pay for the screen and behaving in an angry and threatening manner.  A number of people offered you the $50 including the girlfriend of the person who had bumped into you.  You demanded the money directly from him and they offered to get the money immediately.

7There was then a physical altercation with you as the aggressor and that person, Steven and his girlfriend.  Guests were calling on you to stop the confrontation but you continued to act in an aggressive fashion and could not be placated by the offer, of money.

8The victim, Mr Rolfe, was a witness and believed he needed to intervene to protect the female.  He came up from behind you and put you in a headlock and took you to the ground and he was yelling at you that ‘she was a girl.’  He released you from his grip and you then proceeded to punch him with a closed fist three or four times and to which he responded 'Is this all you've got?'  He then said, 'Now it's my effing turn.'  You then turned and ran towards the kitchen where you procured a knife with a blade of about 15 to 20 centimetres long.

9You returned to the hallway near the lounge room and then proceeded to stab the victim in the chest.  You then came at him a second time with the knife and he managed to deflect it, resulting in a laceration to the back of his hand.  In fear that you would kill him, he then ran out of the house and took off his jumper and applied pressure to the stab wound.

10Witnesses called the police.  You departed the scene at that point.  The victim was taken to the Royal Melbourne Hospital where he had a 2 centimetre wound to his right wrist and a 3 centimetre wound laceration to his right chest with a pneumothorax.  He remained overnight and was sutured.  The next morning, against medical advice, he discharged himself.

11Later that day, the chest wound worsened and he was taken to the Northern Hospital.  The pneumothorax was getting worse and a catheter had to be installed.  The wound to his hand was sutured and he remained in the hospital until 9 November when the tube was removed.  He returned on two further occasions for outpatient follow up.  He was advised that he could not swim or fly for eight weeks and that the wound would take three months to close over and he was not to undertake any substantial physical activity for eight months and full healing was expected in 12 months.

12Later in the morning of 3 November, you sent him several messages including that you were sorry and said 'It's no excuse but if I could turn back time, I would.'  You said you were ashamed of yourself and you do not remember anything much and that you were deeply sorry.

13He made a report to police on 11 November and you were arrested on 18 November and in the record of interview, you admitted that you had been at a party and that your phone had broken but you could not remember much about any fighting and gave a no comment response to the allegations. You were subsequently charged and have remained in custody since that time.

14The matter was the subject of a number of mentions and resolved at a committal case conference on 3 March and you were committed to this court on 25 March for the plea.

Seriousness of the offence. 

15This was a serious example of the offence of intentionally causing injury.  First, the use of a bladed weapon directed at the upper body is inherently serious and evidences a high degree of culpability. Further, you were intoxicated and the victim was unarmed. The event had commenced with him seeking to have you desist from your aggressive conduct towards a female.

16Next, the seriousness of the injuries sustained puts the matter close to being a case of serious injury.  Although it appears the victim has recovered from his injuries, as your counsel conceded, you are indeed fortunate that the injuries were not more serious.

17While there was no direct premeditation as such, there was an element of deliberation in that you left the scuffle in the loungeroom to go to the kitchen to retrieve a weapon and then return to inflict the injuries in two separate lunges.

18Further, the victim in the matter was completely innocent and was attempting to intervene to stop your alcohol fuelled aggressive behaviour.  Overall, you bear a high degree of culpability for this offence.

19Further matters going to your culpability are that as submitted by the learned Crown prosecutor, you have prior convictions for offences of violence.  This is a matter going to your moral culpability and relevant to your prospects of rehabilitation and the need for specific deterrence.  An aggravating feature is that you were on a community corrections order at the time.

20On the plea, your counsel did not dispute the seriousness of the offending here, within the range of offences of intentionally causing injury.  Within that range, I would assess the matter overall at mid-range.

Prior convictions.

21You are now aged 29 and have a significant criminal record dating back to when you were aged 23.  On 30 January 2014, you were convicted of five charges of recklessly causing injury and criminal damage and placed on a community corrections order for 12 months.  On 25 February 2014, on charges of recklessly causing injury, assault with an instrument and a traffic offence, you were placed on another community corrections order for 12 months.  On 7 May 2015, you were found to have breached both those orders and they were cancelled, and on the first order you were sentenced to six months' imprisonment as an aggregate term, with two months to be served and the balance suspended for 12 months. On the second community corrections order, you were sentenced to two months' imprisonment.

22On 9 August 2016, you were before the Dandenong Magistrates' Court on three charges of reckless conduct endangering serious injury and a charge of assaulting emergency worker on duty, wilful damage as well as failing to provide identification information and possessing cannabis.  You were sentenced to an aggregate term of four months' imprisonment on the conduct charges and three months on the assault charges with three months of the sentences concurrent, thus an effective sentence of five months' imprisonment.

23On 6 August 2018, on charges of theft, making a threat to kill, recklessly causing injury and resisting a police officer, you were sentenced to four months' imprisonment on those charges and a 12 month community corrections order, with a three month sentence on assaulting an emergency worker on duty, partly concurrent.  Those sentences were appealed to this Court and as I have indicated, on 21 September, you were placed on the sentence that gave rise to the breach of the community corrections order; namely three months' imprisonment on charges of theft, making a threat to kill, recklessly causing injury and resisting a police officer with a 12 month community corrections order to follow and a one month sentence for assaulting emergency worker on duty and committing an indictable offence whilst on bail and behaving in an offensive manner, cumulative on the three month sentence.  Thus a total effective sentence of four months' imprisonment with the community corrections order of 12 months to commence you’re your release.

24You stand to be resentenced on those charges, the four charges for which you were sentenced to three months' imprisonment and the 12 month corrections order as well as the charge for the breach of the community corrections order.

25The circumstances of those original offences were read in open court.[2] The offences occurred on 7 October 2017.  At around 11.30 in the morning, you were on a tram with a co-accused and on a number of occasions, you were refusing to leave the tram as you had brought a bicycle onto it.  You were asked by a passenger to do so when you then proceeded to grab the victim in a headlock and force him to the ground and telling him that you intended to kill him.  You nearly choked the victim for nearly a minute and threw a number of punches.  You also tried to kick the victim.  His keys fell to the ground and you grabbed the keys and threw them into the Yarra River.  Your co-offender broke his glasses.  When police attended, you refused to comply with police directions.  These events led to the charges of theft, making a threat to kill, recklessly causing injury and resisting a police officer.

[2] Exhibit C on the plea, ‘Submissions on the Contravention.’

26Following the appeal decision to this court, you completed the four month sentence of imprisonment and were released on the community corrections order on 20 January 2019.  You were inducted by the Community Corrections Office and then proceeded to breach the community corrections order by failing to comply with it by way of failing to report, failing to undertake community work, failing to go to treatment and then committing the offence against Mr Rolfe.

27You had completed just over 64 of the 150 hours' community work ordered and only seven of the 75 hours rehabilitation ordered.  You did complete programs of alcohol rehabilitation but had not fully completed a program addressing your offending behaviour when this offence occurred.

28The breach report[3] which was exhibited indicates that while you did participate in some of the programs that you did do some of the community work, you behaved in an argumentative and confrontational manner with the officers.  They recommended that the order be cancelled and that your likelihood of rehabilitative gains was limited to your poor attitude and behaviour.

[3] Exhibit D on the plea, ‘Breach Report’

29In resentencing you for the original offending, I am required to take into account the extent to which you have complied with the community corrections order and also to take into account that you have served the three month sentence of imprisonment that was imposed.

30Returning to your criminal record, your prior record indicates that on now three occasions, you have failed to respond to a community corrections order and also breached the suspended sentence.  As I indicated, you also have prior convictions for violence type offences within your criminal record.  All these matters are relevant to your culpability for this particular offence and your prospects of rehabilitation and specific deterrence as sentencing considerations.

Your personal circumstances. 

31Your family and personal history was set out in the psychological report, which I incorporate by reference.[4]  You are now aged 29 and have two younger siblings. Your parents separated when you were 11, after a period of domestic violence inflicted on your mother by your father.  He had drug and alcohol problems.  You chose to continue to live with him while your two siblings stayed with their mother.  Indeed, in the period before he passed away in 2016, you were his personal carer.

[4] Exhibit 2 on the plea

32Due to problems within your parents' marriage, your housing and schooling was disrupted. You had difficulties at school and left school at Year 9.  Your mother made efforts for you to obtain employment and you worked in French polishing and completed a pre-apprenticeship program for plumbing but you were unable to obtain a position.  You also undertook a course in steel construction but were not successful in obtaining employment in that field.

33You had periods of unemployment but after you were released from prison after a sentence, you were able to obtain employment as a truck driver.  After the period of imprisonment that this Court dealt with in September 2018, you returned to truck driving and you have provided a reference from your employer which is very supportive of you and you have that employment to go back to.[5]

[5] Exhibit 4 on the plea.

34You have been engaged to be married for around five years and you and your partner have been unsuccessful in starting a family.  Shortly before this offending, there had been a breakdown in the relationship and you responded by the excessive use of alcohol.

35In a comprehensive submission, your counsel provided a volume of material in mitigation.  These included nine personal references from your two younger siblings and your mother.  There was also a work reference from your employer.  The references were at one in confirming your remorse for your offending and that the offending was somewhat out character and you had manifested the intention to address the underlying problems.

36In addition to these personal references were a bundle of program certificates from courses that you had completed presently whilst in custody.[6]  In addition, you identified a number of courses that you had enrolled in but due to the lockdown, had been unable to participate.

[6] Exhibits 6 and 7 on the plea/

37Significantly, you are presenting on a waiting list for mental health treatment.  In addition, there was a volume of certificates indicating your participation in work programs in the prison system.

Psychological report.

38Your counsel relied on a comprehensive report from a psychologist, Ms Cokorilo.  I found that report of significant assistance in that she identified the consequences of your blighted family upbringing and its impact on your psychological health, including, in her opinion, recurrent symptoms of a major depressive disorder and an alcohol use disorder. She also found that you exhibit symptoms of PTSD.  She is of the opinion that you history of alcohol abuse appears to be a form of self-medication against your untreated depression and trauma including exposure to domestic violence within the household.

39She rates you has having a high risk of recidivism but with appropriate medication and intervention, psychological intervention, the risk may substantially reduce.

40She notes that you have support from your mother and partner and your family and you are motivated to improve your future.  She indicates that you also recognise your need for treatment to overcome your anger and maintain abstinence from alcohol.

41She is of the view that your current psychological problems are unlikely to be properly addressed and treated whilst in custody.  She is of the further opinion that you will require long term psychological support, particularly in the transition back to the community.

42The opinions of this assessor mirror the statements made by a number of your family and friends in the references that indicate that you do have insight into your offending and are motivated to address your underlying problems.  You gave evidence to that effect as well.

43Also very relevant is a reference from Mr Peter Wroblewski, the Barwon Area Alcoholics Anonymous coordinator.[7]  He has been involved in the prison system for a number of years and has been supporting you at Marngoneet Prison since February this year in the AA program.  From his involvement with you, he notes that you accept your addiction to alcohol and drugs and the connection of that addiction to your offending and its impact on your family and your friends.  You are also aware of the supports available to address the issue including through AA and that he indicates that he is prepared to assist you upon your release from imprisonment.  You confirmed your involvement with that program in your evidence to me. 

[7] Exhibit 5 on the plea.

44The report of Mr Wroblewski, combined with the personal references that you have tendered and the programs that you have undertaken in custody as well as the opinion of the psychologist and your own evidence on the plea leads me to the conclusion that you are very much at a fork in the road in your life.  You have taken responsibility for your conduct, apologised to the victim and had taken as many steps as you can to address the underlying causes of the offending.

45Whether this determination continues upon your release is a matter of speculation.  The learned Crown prosecutor placed your prospects of rehabilitation as guarded.  That is fair.  If you can continue to be abstinent from alcohol, then I would regard your prospects of rehabilitation as good.

Sentencing considerations

46First, as submitted by your counsel, you have pleaded guilty at the earliest opportunity.  You are entitled to full credit for that.  You have facilitated the course of justice and obviated the need for a committal and trial and further traumatisation of the complainant by his participation in the criminal justice system.

47I am also satisfied that your plea of guilty is evidence of your remorse.  Remorse is a significant matter in these types of cases.  I am satisfied that this, in your case, is genuine remorse.  The text messages you sent the following day indicated an apology and remorse, that is relevant.  You have also expressed your remorse to a number of family members and others in the period since the offence and to the psychologist.

48In addition, somewhat exceptionally, you were called by your counsel on the plea and you read to the court an letter of apology to the victim and requested that it be forwarded to him.  You were cross-examined by the learned prosecutor and having regard to your demeanour in the course of your evidence, I regard your letter of apology as a further manifestation of genuine remorse for your conduct.[8]

[8] Exhibit 8 on the plea ‘Letter of Apology.’

Purposes of sentencing. 

49The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any.  I am required to balance the interest of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society.

50This offence can occur in a wide variety of circumstances and thus it is not surprising the prosecution had difficulty in finding any comparable cases of assistance.  I was referred to the decision of Vella[9] which was reviewed by the Court of Appeal and the sentence of two years' imprisonment with a minimum of 14 months on a female offender aged 36 was regarded as moderate.  In the course of a fight in that case between a victim and another person, the offender had stabbed the victim in the back with a knife. 

[9]Vella v The Queen [2018] VSCA 30

51The offender in that case had a wider range of antecedents, although the actual injury was described as relatively minor.  Any particular sentence is not a precedent but I have had some regard to that sentence.

52In sentencing you, I must have regard to the maximum penalty, which is 10 years' imprisonment.  This shows the seriousness which this offence is treated.  I must also have regard to the impact on the victim in this matter.  He has not filed a victim impact statement, but notwithstanding this, it must have had a significant impact on him, including about a week in hospital.

53I must have regard to current sentencing practices and the case of Vella is of some assistance in this matter.

54This offending is alcohol fuelled violence and thus considerations of general deterrence are very important.  In addition, denunciation is important. Your conduct in retrieving a weapon and then seeking to stab the victim on two occasions in an alcohol fuelled rage is utterly to be condemned.  You can consider yourself very fortunate that the injuries were not more serious.

55Considerations of specific deterrence are relevant here in that you do have prior convictions for offences of violence.

56Balanced against all these matters is the interests of the community in your rehabilitation.  Here, on the material before me, I am satisfied you have shown insight into the underlying causes of your offending and are genuinely remorseful.  You have taken initial steps to address your psychological problems and your dependence on alcohol. You have affirmed before me that you will continue to take those steps.

57It is clearly in the community interest that this path continues.

58Next in sentencing you, I have taken into account the burden of imprisonment in the current COVID environment.  The references indicate that a number of your family and friends were visiting you regularly in prison before the lockdown.  The lockdown itself has resulted in significant disruption to courses and programs available within the prison system.  Your partner has suffered mental health problems as a result of her inability to continue to see you and thus this has impacted on you.  Therefore the burden of imprisonment with your mental health problems is somewhat higher than for others.  In assessing your prospects of rehabilitation, it is significant that this is the longest period of incarceration that you have endured and thus would have a major impact on you which is evidenced by the sentiments expressed in your evidence before me that you ‘intend to seek out all the help you can get’ upon your release.

59Your counsel strongly submitted that in structuring a sentence for you, a significant proportion of the sentence should be able to be served in the community in order to enhance your rehabilitation prospects.

60Your counsel also submitted that in resentencing for the earlier offences breached by this offence, considerations of totality should be taken into account and that any sentence should be concurrent with the sentence on the principal offence.  I accept that submission.

61In sentencing you and in this plea, I have been assisted by comprehensive Crown sentencing submissions and also by the submissions by your counsel and I have them all into account.  Having regard to your efforts to rehabilitate yourself within the prison system and the opinions of the psychologist and the AA counsellor, as I have indicated, I see this very much as a matter where you are at a fork in the road of your life and the sentence of the court should do everything it can to encourage your successful rehabilitation in what will be a difficult road, given your longstanding mental health issues for which you are not responsible for but which have remained unaddressed.  It is clearly in the community interest that they may be addressed and that you can continue the road to rehabilitation, particularly through AA which you have testified in your evidence before me.

Sentence

62The sentence of the court is as follows, having taken into account all the submissions.  On the charge of intentionally causing injury, you are sentenced to 27 months' imprisonment.

63On the original charges of theft, making a threat to kill, recklessly causing injury and resisting a police officer, you are sentenced to an aggregate term of six months' imprisonment.

64On the charge of contravening the community corrections order you are sentenced to one month imprisonment.

65I direct that all sentences of imprisonment are to be concurrent.

66I order that you must serve a sentence of 14 months' imprisonment before becoming eligible for parole.

67I declare that you have served three months' imprisonment on the breaching offences.

68I declare that you have served 275 days' imprisonment on the sentence for intentionally causing injury.

69I declare that had you not pleaded guilty, I would have imposed an total effective sentence of three years' imprisonment with a non-parole period of two years.[10]

[10] Pursuant to  Sentencing Act 1991 , s6AAA

70I make the forfeiture order that the prosecution have sought or disposal order. 

71So the intention is that he will be eligible for parole 14 months from the time he entered custody on this sentence, namely last year, November last year.  I declared the 275 days that he's served on that sentence, all right?

72MR SPRAGUE:  Yes, Your Honour.

73HIS HONOUR:  Yes, all right.  I want to thank both counsel for their assistance in this plea and the instructing solicitors.  It's been done in the COVID environment and it has been done economically and comprehensively and I have been very much assisted by those submissions.

74MR SPRAGUE:  Thank you, Your Honour.

75HIS HONOUR:  With that, I wish Mr Close his very best in his future.  Retrieval from alcohol addiction is a long, lonely road but AA is a world known program that works, has worked and I commend a film when you do get out called 'He won't go far on foot', which is out of California.  It was in the box offices about three years ago.  'He won't go far on foot' which is a testament to the AA program.

76With that, I will adjourn temporarily.

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